in the Interest of J.S. and R.S., Children ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00231-CV
___________________________
IN THE INTEREST OF J.S. AND R.S., CHILDREN
On Appeal from the 325th District Court
Tarrant County, Texas
Trial Court No. 325-645471-18
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
After a bench trial, the trial court terminated the parent-child relationships
between T.S. (Mother) and J.S. (Father) and their teenaged daughters J.S. (Jackie) and
R.S. (Rachel) (collectively, the girls).1 Only Mother appeals. In two issues, she
contends that the termination order was void because the girls were not before the
court and that the evidence is legally and factually insufficient to support the
constructive abandonment findings. Because we hold that the termination order is
not void and that the evidence is legally and factually sufficient to support the
constructive abandonment findings, we affirm the trial court’s termination order.
FACTS AND PROCEDURAL HISTORY
Jackie and Rachel’s paternal aunt (Aunt) filed a petition for sole managing
conservatorship of the girls and their two younger siblings in April 2018. By June
2018, Aunt had decided that she no longer wanted custody of the girls and wanted
them out of her home, and the girls alleged that they were being abused and also
requested to be removed from Aunt’s home. Aunt dropped the girls from her
pleadings with an amended petition, and the Texas Department of Family and
Protective Services (Department) filed a petition seeking conservatorship of the girls
1
We use aliases to refer to the subject children and their family. See Tex. R.
App. P. 9.8(b)(2) (requiring courts to use aliases to refer to minors in parental-rights
termination cases and, if necessary to protect the minors’ identities, to also use aliases
to refer to their family members); see also Tex. Fam. Code Ann. § 109.002(d).
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and termination of their parents’ rights, followed by a motion to sever the suit
involving the girls from the suit involving their siblings. The associate judge severed
the suit involving the girls from the suit involving their siblings and ordered in writing
“that the clerk shall assign a new cause number to the severed cause of action, and
shall notify each party of the new cause number. All future filings relating to the suit
affecting the [girls] shall be made in the new cause number.” The severance order
also ordered the clerk to place copies of the following documents into the new case
file:
l. the live pleadings;
2. any interlocutory judgments of termination with respect to the
above-named child[ren];
3. copies of documents relating to service of process on the parents
of said child[ren];
4. and any other document requested by a party or attorney to be
included in the severed file as relevant to an interlocutory decree
of termination.
Nevertheless, the parties and the trial court continued to use the cause number from
the siblings’ case (the old trial court cause number) on documents in the girls’
termination case instead of the new cause number.
The Department pursued termination of Mother’s parental rights to the girls
based on the girls’ best interests and the constructive abandonment ground. Mother
was in prison and did not personally appear at the termination trial, but her appointed
counsel did appear.
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Only the caseworker testified. She stated:
• The girls had lived “with various friends and relatives and then wound
up with . . . [A]unt in April of 2018”;
• The girls had “significant behavioral problems” involving self-harm and
aggression, and Aunt did not want them in the home with the younger
children she was raising;
• The Department tried to find a family placement for the girls, reaching
out to family members and family friends, to no avail;
• When the caseworker received the case in June 2018, Aunt and the girls
did not know where Mother was;
• Aunt had not seen Mother in several years;
• Aunt told the caseworker that Mother was a drug addict and was
“usually on and off homeless”;
• Mother “had not been involved in the girls’ lives very consistently for
quite some time”;
• The girls had not lived with Mother for about six years;
• A “pretty bare minimum” service plan was created for Mother; the
Department planned to tailor it to meet her needs when she was located
and met with the caseworker;
• Mother called the caseworker after she was released from Tarrant
County Jail in August 2018;
• Mother and the caseworker set an appointment to meet about the
service plan and visits with the girls;
• The caseworker gave Mother the address of the CPS office;
• Mother did not give the caseworker any contact information;
• Mother did not appear for the appointment or otherwise contact the
caseworker;
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• In March 2019, the caseworker discovered that Mother was back in
Tarrant County Jail and visited her;
• Mother expressed an interest in voluntarily relinquishing her parental
rights and intended to do so;
• The girls requested to visit Mother in jail and did so one time in April
2019;
• Mother never otherwise visited the girls during the pendency of the case,
nor did she ask to;
• In April 2019, Mother was convicted of three felonies, including
possession of four or more but less than 200 grams of heroin;
• The Department made reasonable efforts to return the girls to Mother;
• Mother did not regularly visit or maintain significant contact with the
girls;
• Mother did not show that she could provide the girls with a safe and
stable environment; and
• Mother’s parental rights should be terminated on the constructive
abandonment ground.
The three exhibits admitted show that all three of Mother’s convictions were
for drug-related felonies. The exhibits also show that Mother was in jail from mid-
July 2018 to mid-August 2018, from mid-September 2018 to mid-October 2018, and
from mid-January 2019 until she was sentenced to prison in April 2019.
Based on the caseworker’s testimony and the three exhibits, the trial court
granted the Department’s termination petition.
The trial court’s original termination order, signed May 31, 2019, bears the old
trial court cause number, as do Mother’s original notice of appeal, the original clerk’s
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record, and the original reporter’s record. On July 2, 2019, after Mother filed her
notice of appeal and after the original clerk’s record and reporter’s record were filed in
this court, the trial court signed a nunc pro tunc order of termination bearing the new
trial court cause number. Mother’s notice of appeal and the record have subsequently
likewise been amended to reflect this change.
DISCUSSION
I. Using the wrong cause number did not void the termination proceedings
or the termination order.
In her first issue, Mother contends that the termination order is void because
the girls were not before the court and that the nunc pro tunc order of termination
could not cure this alleged judicial error. We hold that the trial court’s using the
wrong cause number in the girls’ termination case, both in the proceedings and on the
documents, was a clerical error cured by the nunc pro tunc order of termination; the
termination order is therefore not void.
Mother argues that the girls were not before the court after the severance, but
the severance order split a single case into two cases in the same court. The record
does not reflect that either case was transferred out of the 325th District Court. Thus,
the girls remained before the court. Mother also asserts that the severance order was
a proper judicial act and not a clerical error. We agree with Mother that nothing
about the severance appears improper. Mother argues, though, that the nunc pro
tunc order of termination
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was not merely to correct a clerical error regarding the final order’s cause
number. . . . The [order] was attempting to correct an oversight by
everyone but ultimately a judicial error. The fatal judicial error being
that the trial court presided over numerous hearings and a final trial
where the subject children had been judicially severed from the case.
She cites no support for these assertions, and we reject them.
Whether an error corrected by a nunc pro tunc order is clerical or judicial is a
legal issue that we review de novo. Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex.
1986); In re M & O Homebuilders, Inc., 516 S.W.3d 101, 109 (Tex. App.—Houston [1st
Dist.] 2017, orig. proceeding). When making our decision, we look at the trial court’s
actual rendition, not what it could or should have rendered. Escobar, 711 S.W.2d at
231; M & O Homebuilders, Inc., 516 S.W.3d at 109. A judicial error stems from a legal
or factual mistake that requires judicial reasoning to correct; a clerical error involves
an incorrect transcription or entry of the judgment. M & O Homebuilders, Inc.,
516 S.W.3d at 109. The trial court’s mistaken use of the old trial court cause number
instead of the new trial court cause number was a clerical error remedied by the nunc
pro tunc order of termination. See In re N.S., No. 04-14-00291-CV,
2015 WL 4932850, at *4 (Tex. App.—San Antonio Aug. 19, 2015, no pet.) (mem. op.)
(holding “omission of [a] . . . cause number from [an] order was clerical and could be
corrected by judgment nunc pro tunc”); Meeks v. Meeks, 783 S.W.2d 823, 823–24 (Tex.
App.—Fort Worth 1990, no writ) (characterizing the filing of an order under the
wrong cause number as clerical and noting that the appellee “caused nunc pro tunc
orders to be filed” to correct it). Mother’s reliance on a case reversing based on
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judicial error is misplaced. See Finlay v. Jones, 435 S.W.2d 136, 138–39 (Tex. 1968)
(orig. proceeding) (holding the trial court’s changing service facts in its nunc pro tunc
judgment was judicial error invalidating that judgment).
Further, using the old trial court cause number did not cause any confusion to
the parties. All the parties and the trial court operated under the same misconception
regarding the cause number. The trial court rendered one final judgment—the
termination order, and Mother appealed that termination order, no matter what cause
number the written judgment bore. See, e.g., LaGoye v. Victoria Wood Condo. Ass’n,
112 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“[W]e find
that the misnumbering caused no confusion regarding the judgment from which
LaGoye seeks to appeal.”).
As other courts have rationalized, “A party should not be punished for failure
to comply with the terms of an order of severance ignored by both the opposing party
and the court.” Blankenship v. Robins, 878 S.W.2d 138, 139 (Tex. 1994) (citations and
internal quotation marks omitted) (holding the motion for new trial and appeal bond
filed in the severed cause number instead of the original cause number invoked
appellate court jurisdiction of the appeal of the judgment in the original cause
number); Windsor v. Fleming, No. 10-14-00392-CV, 2019 WL 3804484, at *11 n.3 (Tex.
App.—Waco Aug. 7, 2019, no pet. h.) (mem. op.) (noting that Windsor’s filing several
documents in the original cause number instead of the new cause number “d[id]
not . . . affect [the Waco court’s] analysis” of his appellate issues). “Instead, the
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decisions of the courts of appeals should turn on substance rather than procedural
technicality.” Blankenship, 878 S.W.2d at 139 (citations and internal quotation marks
omitted); Windsor, 2019 WL 3804484, at *11 n.3.; cf. Alaimo v. U.S. Bank Trust Nat’l
Ass’n, 551 S.W.3d 212, 218, 219 (Tex. App.—Fort Worth 2017, no pet.) (holding the
judgment from the underlying action void because it was signed after the expiration of
the trial court’s plenary power and declining to treat that judgment as if it were
correctly filed in the bill of review proceeding because “[W]e see a difference between an
inadvertent error in the numbering or styling of documents and pleadings and what occurred here,”
which was “[w]illful disregard of the law”) (emphasis added).
Because the trial court had jurisdiction over the girls and the termination suit
and properly rendered an appealable termination order, we overrule Mother’s first
issue.
II. Clear and convincing evidence supports the constructive abandonment
findings.
In Mother’s second issue, she contends that the evidence is legally and factually
insufficient to support the trial court’s constructive abandonment findings.
A. Standards of Review
For a trial court to terminate a parent–child relationship, the Department must
prove two elements by clear and convincing evidence: 1) that the parent’s actions
satisfy one ground listed in family code section 161.001(b)(1); and 2) that termination
is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C.,
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384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence
is clear and convincing if it “will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established.” Tex. Fam.
Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
Mother does not challenge the trial court’s best-interest finding. She challenges
only the constructive abandonment findings. To determine whether the evidence is
legally sufficient to support the constructive abandonment findings, we look at all the
evidence in the light most favorable to the challenged findings to determine whether a
reasonable factfinder could form a firm belief or conviction that the findings are true.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann.
§ 161.001(b)(1)(N). We assume that the factfinder settled any evidentiary conflicts in
favor of its findings if a reasonable factfinder could have done so. J.P.B., 180 S.W.3d
at 573. We disregard all evidence that a reasonable factfinder could have disbelieved,
and we consider undisputed evidence even if it is contrary to the findings. Id. That is,
we consider evidence favorable to the findings if a reasonable factfinder could, and we
disregard contrary evidence unless a reasonable factfinder could not. See id. The
factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A.,
283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the constructive abandonment findings.
In re A.B., 437 S.W.3d 498, 500 (Tex. 2014); see Tex. Fam. Code Ann.
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§ 161.001(b)(1)(N). Nevertheless, we give due deference to the factfinder’s findings
and do not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006). We review the whole record to decide whether a factfinder could reasonably
form a firm conviction or belief that Mother constructively abandoned the girls. See
Tex. Fam. Code Ann. § 161.001(b)(1)(N); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If
the factfinder reasonably could form such a firm conviction or belief, then the
evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.
B. Constructive Abandonment Law
To establish constructive abandonment under Section 161.001(b)(1)(N), the
Department had to prove by clear and convincing evidence that: (1) Mother had
“constructively abandoned the [girls,] who ha[d] been in [the Department’s]
permanent or temporary managing conservatorship . . . for not less than six months”;
(2) the Department made reasonable efforts to return the girls to Mother; (3) Mother
had not regularly visited or maintained significant contact with the girls; and
(4) Mother had demonstrated an inability to provide the girls with a safe environment.
Tex. Fam. Code Ann. § 161.001(b)(1)(N); see In re A.S., No. 02–16–00284–CV,
2017 WL 371496, at *5 (Tex. App.—Fort Worth Jan. 26, 2017, pet. denied) (mem.
op.).
C. Analysis
Mother contends that the trial court’s constructive abandonment findings
“were vague, speculative and remote and that there was not clear and convincing
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evidence of constructive abandonment.” Mother does not contest that the girls were
in the Department’s care for six months, but she (1)“strongly challenges the finding
that the Department made reasonable efforts to return the [girls] to [her]”; (2) asserts
“that there can be no finding that she failed to maintain visitation or . . . contact”; and
(3) claims that “[t]here was little or no evidence of whether she had demonstrated an
inability to provide the [girls] with a safe environment.”
1. Reasonable Efforts
Mother challenges the evidence supporting the “reasonable efforts” element.
Tex. Fam. Code Ann. § 161.001(b)(1)(N). She contends that the record does not
show any effort by the caseworker to find her after the caseworker received the case
in June 2018 until Mother called the caseworker in August 2018 or after that
telephone call until the caseworker learned Mother was in jail in March 2019. Mother
further contends that there is no evidence that any Department employee ever
presented a service plan to her, explained the available services, or discussed what
Mother was expected to do. However, the trial court heard the caseworker’s
testimony that
• The Family Based Safety Services caseworker who previously staffed the
case attempted to locate Mother but could not;
• When the current caseworker received the case in June 2018, she asked
Aunt and the girls about Mother’s whereabouts and contact information,
and they did not know where Mother was or how to reach her;
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• A minimal service plan had been created for Mother and would be
tailored for her specifically when Mother was found and the caseworker
met with her;
• Mother called the caseworker in August 2018, and they scheduled a
meeting at the CPS office to go over the service plan and set up
visitation;
• The caseworker gave Mother the address of the office, but Mother did
not give the caseworker any contact information;
• Mother did not appear for the meeting or otherwise contact the
caseworker;
• The caseworker saw Mother for the first time in March 2019 after
discovering that she was in Tarrant County Jail, and Mother
communicated her intention to sign an affidavit of relinquishment;
• The Department tried without success to find a family placement for the
girls; and
• The Department made reasonable efforts to return the girls to Mother.
Applying the appropriate standards of review, we hold that the evidence is
legally and factually sufficient to support the trial court’s finding that the Department
made reasonable efforts to return the girls to Mother. See C.G. v. Tex. Dep’t of Family
& Protective Servs., No. 03-18-00852-CV, 2019 WL 3367524, at *7 (Tex. App.—Austin
July 26, 2019, no pet.) (mem. op.) (“The caseworker persisted in trying to set up
appointments and assist Chad with work on his parenting service plan, and a lack of
communication was not the Department’s fault.”); In re G.T., No. 02-17-00279-CV,
2017 WL 6759036, at *4 (Tex. App.—Fort Worth Dec. 28, 2017, no pet.) (mem. op.)
(“A reasonable factfinder could form a firm conviction or belief that [the minor
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parent’s] running away [a few weeks after the service-plan discussion] did constitute
an unwillingness to complete the service plan as well as a rejection of the services
offered in the plan.”); Gamez v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00190-
CV, 2009 WL 4456150, at *7 (Tex. App.—Austin Dec. 1, 2009, no pet.) (mem. op.)
(concluding in dicta that a parent’s failure to provide contact information and the
Department’s trying to find her and provide services to her while the case was
pending supported the “reasonable efforts” element of constructive abandonment).
2. Lack of Regular Visitation and Significant Contact
Regarding the visitation element, Mother alleges that the Department never
made her aware of the visitation and communication guidelines for the girls and that
besides the visit initiated by the girls in April 2019, there is no evidence that access to
the girls or any visits were offered to Mother. A parent fails to regularly visit or
maintain significant contact with children when “visits are intermittent or sporadic.”
C.G., 2019 WL 3367524, at *7. The evidence shows that Mother had not been a
consistent figure in the girls’ lives for several years and that they did not know how to
reach her when the caseworker received the case in June 2018. The evidence also
shows that Mother knew that the August 2018 meeting she chose not to attend with
the caseworker concerned visitation. Further, the evidence reveals that Mother never
asked to visit the girls; in fact, she expressed an intent to sign an affidavit of
relinquishment of her parental rights to the girls in March 2019, before the April
2019 visit between Mother and the girls that occurred because the girls requested it.
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Finally, the caseworker testified that Mother had not regularly visited or maintained
contact with the girls. Applying the appropriate standards of review, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding that
Mother had not regularly visited or maintained significant contact with the girls. See
Tex. Fam. Code Ann. § 161.001(b)(1)(N); C.G., 2019 WL 3367524, at *7 (upholding
the finding that the father failed to visit regularly or maintain significant contact when
he left, slept, or used his phone during visits and there was no evidence that he
otherwise tried to phone or correspond with the children); In re T.T., No. 11-18-
00291-CV, 2019 WL 1716416, at *2–3 (Tex. App.—Eastland Apr. 18, 2019, no pet.)
(mem. op.) (upholding the constructive abandonment finding when evidence showed
that the father had not seen his child for years and that he did not try to contact the
child while the case was pending despite being informed how); In re C.J.B., No. 07-17-
00069-CV, 2017 WL 2822512, at *2 (Tex. App.—Amarillo June 28, 2017, pet. denied)
(mem. op.) (“[W]hile [the father] may not have been allowed visitation until he
fulfilled his service plan, that did not prevent him from communicating with the child
through other means.”); In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth
2011, pet. denied) (upholding the trial court’s finding on the visitation element based
on testimony that the parent visited once between September and December
2009 and did not visit between February and May 2010 or accept an alternative
visitation schedule); Gamez, 2009 WL 4456150, at *7 (concluding in dicta that
evidence that the parent’s last contact with the child had occurred more than a year
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before the trial and the parent’s failure to provide contact information supported the
visitation element of the constructive abandonment ground).
3. Inability to Provide Safe Environment
Mother contends that the only evidence of her inability to provide the girls with
a safe environment was secondhand hearsay that she was often homeless and the
evidence of her confinement in jail and prison. Evidence a factfinder may consider in
deciding whether a parent has shown that she cannot provide her children with a safe
environment includes the parent’s failures to participate in services and to visit with
the children, the parent’s lack of stable housing, and past substance abuse, C.G.,
2019 WL 3367524, at *7; the parent’s lack of stable employment, see A.K. v. Tex. Dep’t
of Family & Protective Servs., No. 03-14-00450-CV, 2014 WL 6612609, at *4 (Tex.
App.—Nov. 21, 2014 no pet.) (mem. op.); and actions that led to the initial removal,
see In re M.R., J., No. 07-13-00440-CV, 2014 WL 2591616, at *5 (Tex. App.—Amarillo
May 9, 2014, no pet.) (mem. op.).
The caseworker testified that the girls had not been in Mother’s care in the six
years before the removal and that the one time the girls visited with Mother during
the case had been at their request. The caseworker also stated that Mother did not
stay in contact with the caseworker or even begin services and had not shown an
ability to keep stable housing or stable employment. Additionally, the caseworker
stated that none of the girls’ other family members would let the girls live with them
after their removal from Aunt’s home. The evidence shows that Mother had been in
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jail at least three times during the pendency of the case and that she had recently been
sentenced to three years in prison for offenses related to her drug use. Finally, the
caseworker testified that Mother had not shown that she could provide the girls with a
safe, stable environment. Applying the proper standards of review, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding that
Mother demonstrated that she could not provide the girls with a safe, stable
environment. See In re T.M., No. 2-09-145-CV, 2009 WL 5184018, at *5 (Tex. App.—
Fort Worth Dec. 31, 2009, pet. denied) (mem. op.) (“[T]he evidence establishes
Father’s inability to provide the children with any environment . . . much less a safe
environment, and the evidence is therefore legally and factually sufficient as to the
safe environment element of constructive abandonment.” (citations and internal
quotation marks omitted)).
D. Resolution
Having held that the evidence is legally and factually sufficient to support the
challenged findings on the elements of the constructive abandonment ground, we
overrule Mother’s second issue.
CONCLUSION
Having overruled Mother’s two issues, we affirm the trial court’s termination
order.
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/s/ Mike Wallach
Mike Wallach
Justice
Delivered: October 31, 2019
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