in the Interest of A. C., a Minor Child ( 2008 )

NO. 07-07-0354-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 16, 2008 ______________________________

In the Interest of A.C., a child _________________________________

FROM THE 222^ND DISTRICT COURT OF DEAF SMITH COUNTY;

NO. DR-06A-019; HON. PHIL N. VANDERPOOL, PRESIDING _______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Crystal Chavez and Juan Cano appeal from an order terminating their parental rights to their minor daughter, A.C. We affirm the trial court's order.

Cano Appeal

Cano asserts various issues attacking the trial court's decision. However, we do not find a statement of points itemizing the issues he intended to present on appeal. See Tex. Fam. Code Ann. §263.405(i) (Vernon Supp. 2007); In re R.C., 243 S.W.3d 674, 675-76 (Tex. App.-Amarillo 2007, no pet.). Accordingly, we dismiss his appeal.

Chavez Appeal

Chavez raises three issues for us to consider. Through two, she attacks only two of the four statutory grounds found by the trial court to warrant termination. Through the third issue, she attacks the finding that termination was in the best interest of the child. We overrule each. ⁽¹⁾

As for the issues encompassing the statutory grounds for termination, we note that only one ground need be established to support an order of termination. In re N.S.G., 235 S.W.3d 358, 363 (Tex. App.-Texarkana 2007, no pet.). Chavez having addressed on appeal only two of the four grounds, she waived any complaint she had about the others. Thus, at least two grounds existed which supported the trial court's decision.

As for the issue encompassing the best interest of the child, we note that the evidence establishing a statutory ground for termination may also be considered when assessing the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Also noteworthy are the indicia known as the Holley factors. They too are helpful in assessing the child's best interest. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Included among them are: 1) the desires of the child, 2) the emotional and physical needs of the child now and in the future, 3) the emotional and physical danger to the child now and in the future, 4) the parental abilities of the individuals seeking custody, 5) the programs available to assist those individuals to promote the best interest of the child, 6) the plans for the child by those individuals seeking custody, 7) the stability of the home, 8) the acts or omissions of the parent indicating that the existing parent/child relationship is not a proper one, and 9) any excuse for the acts or omissions of the parent. In re P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.-Amarillo 2003, no pet.). More importantly, one need not prove that each Holley factor favors termination. Id. at 780. Nor is the list exhaustive. In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.-Amarillo 2003, pet. denied). Instead, there must simply be enough evidence from which the factfinder can reasonably form a firm conviction or belief that the child's best interest justifies termination. In re P.E.W., 105 S.W.3d at 780.

The record before us showed that Chavez, who was mildly retarded and had only a ninth grade education, had been raised in a home where she was abused and neglected. Furthermore, her first pregnancy by Cano (who was in his twenties at the time) occurred when she was fifteen years old. That child was stillborn. Other evidence illustrated that Chavez eventually lived with Cano for a year and a half and that he physically threatened and abused her. After one such instance of abuse, the Department of Family and Protective Services (Department) became involved. And, though Chavez knew that she was not to see Cano, she disregarded that.

Next, after the birth of A.C., the child became sick with meningitis and RSV and had to be hospitalized. Hospital personnel called the Department and reported their concerns regarding Chavez' ability to care for the sick child. This resulted in the Department taking custody of the infant.

Also appearing of record is the following evidence: 1) Chavez and A.C. were placed in several different foster homes together but had to be removed due to the poor behavior of Chavez (as exemplified by her effort to physically confront a foster parent), 2) the foster parents had to constantly remind Chavez to do things for the care of the child, 3) Chavez ran away after being placed with the PAC shelter in Amarillo and having A.C. removed from her custody for holding the child by the ankles and swinging her, 4) Chavez returned to Cano after she ran away, 5) she was next placed with a shelter in Wichita Falls where she stayed for only one day before running away and being arrested for driving without a license, 6) Chavez was placed in a shelter in Lubbock but was removed after she disappeared for a time with an eleven-year-old child, 7) she failed on more than one occasion to place children in safety seats, 8) Chavez had been stopped for driving a car on the wrong side of the road when she had another infant with her and had drunk eight bottles of "Bacardi," 9) she was resistant to learning from services offered by the Department, failed to complete counseling and parenting classes, and had a poor support system in her life, 10) she lacked the ability to parent and could not place the child's needs above her own, according to psychological testing, 11) she had been arrested and jailed for truancy at the time of trial, 12) Chavez only worked for three weeks at the only job she ever had, 13) she gave birth to another child by another father at the time of trial and intended to live with him and have him support her and the child, 14) neither Chavez' family nor Cano's family had passed a home study, and 15) A.C., who was nearly two years old at the time of trial, was doing well with her foster parents, which foster parents had an interest in adopting her.

Evidence that a mother cannot provide a stable, safe, and secure environment supports a finding that it is in the child's best interest to terminate a mother's parental rights. See Hann v. Texas Dep't of Protective and Regulatory Services, 969 S.W.2d 77, 83-84 (Tex. App.-El Paso 1998, pet. denied) (upholding the termination because evidence appeared of record illustrating that the parent could not provide such an environment). The litany of evidence itemized above established Chavez' inability to provide such an environment. Thus, the trial court had before it evidence upon which it reasonably could have formed a firm belief or conviction that termination of the parental rights of Chavez was in the best interest of A.C.

The order of the trial court is affirmed.

Brian Quinn

Chief Justice

1. The State contends that Chavez failed to timely file a statement of points as well. We disagree. The trial court's order of termination was signed on August 1, 2007, and the statement of points was not filed marked until August 20, 2007. Yet, it was mailed to the clerk on August 16, 2007. Given the mailbox rule, See Tex. R. Civ. P. 5 (providing that any document sent to the clerk in an envelope properly addressed and stamped and is deposited in the mail on or before the last day for filing and received by the clerk not more than ten days late shall be deemed filed in time), Chavez satisfied the fifteen-day rule specified in the Texas Family Code. See Tex. Fam. Code Ann. §263.405(b) (Vernon 2002) (requiring the statement to be filed within fifteen days of judgment).

"> Evidence of Lack of Warning Devices

Next, regarding the use or display of flags, lights and like objects, same were purportedly necessary to warn others of the presence of the maintainer, according to Caldwell. And, because such devices were not utilized or displayed, Sims' conduct purportedly deprived Caldwell of sufficient warning to the alleged hazard. Yet, Caldwell testified that 1) the accident occurred "[a] little before noon," 2) he had no "problem at all . . . seeing" the maintainer, 3) he "was pretty far away when [he] first saw it," 4) the maintainer "seemed like a long ways" away when he first spied it, and 5) he was "far enough away" to "easily change directions and miss" it. This uncontradicted evidence hardly evinces a lack of warning. Quite the contrary, it illustrates that he was aware of the maintainer sufficiently in advance to "change directions . . . miss" it and, thereby avoid the collision. And, because he had sufficient warning of same, logic and reason compels us to hold, as a matter of law, that the failure to utilize or display devices which would provide him warning was not a proximate cause of the accident. In short, the lack of warning about an obstacle cannot, as a matter of law, create a question of fact regarding proximate cause when the injured party admits he had ample warning of the obstacle. And, that was, and is, the circumstance here.

Location of the Maintainer

As to the location of the road maintainer, the evidence purportedly creating a question of fact consisted of Caldwell simply stating that it appeared or "looked" to him that the vehicle "was in the right lane and that he needed to move." Yet, immediately before uttering that statement, he said that he actually lacked knowledge about where the maintainer "was parked in relation to the paved lanes of traffic." And, therein lies the problem.

To be competent, summary judgment evidence must be specific, factual, direct, and unequivocal. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Martinez v. IBP., Inc., 961 S.W.2d 678, 686 (Tex. App.--Amarillo 1998, pet. denied). That is why neither conclusions, opinion, nor conjecture have probative value in the realm of summary judgment. Cox v. Bancoklahoma Agri-Service Corp., 641 S.W.2d 400, 402 (Tex. App.--Amarillo 1982, no writ) (holding that summary judgment evidence must be in a form admissible at trial and must state facts, not subjective opinions and conclusions). In short, they cannot raise issues of material fact. Mercer v. Daoran, 676 S.W.2d 580, 583 (Tex. 1984) (holding that a legal conclusion is insufficient to raise an issue of fact in response to a motion for summary judgment); Green v. Unauthorized Practice of Law Committee, 883 S.W.2d 293, 297 (Tex. App.--Dallas 1994, no writ) (stating that legal conclusions and opinions are not competent summary judgment evidence and are insufficient to raise issues of fact).

Here, Caldwell admitted that he actually did not know the location of the maintainer in relationship to the road. Lacking actual knowledge about that matter, his subsequent statement regarding what the relationship "looked" like to him was less than unequivocal, direct, and factual. Rather, the admission relegated his other utterances about the topic to the status of mere opinion and conjecture. And, being relegated to that status, they were insufficient to create a material question of fact. See Welch v. Doss Aviation, Inc., 978 S.W.2d 215, 222 (Tex. App. - Amarillo 1998, no pet.) (holding that one must have personal knowledge of the facts espoused before they can be competent summary judgment evidence). Instead, what we have before us evincing the position of the maintainer viz the lane of traffic is the undisputed deposition testimony of Sims. And, via that testimony, he informed the trial court that 1) he pulled "straight" off the road (as opposed to diagonally), 2) the shoulder was ten feet wide, and 3) only four feet of the maintainer was on the shoulder while the remainder was off the shoulder. Sims having pulled off the road and having left only four feet of the maintainer on the ten foot shoulder while the remainder was off the shoulder, one can only deduce that the vehicle was not in a lane of traffic but some six feet from the nearest lane. ⁽³⁾ Given this, we cannot say, as Caldwell would have us do, that a material question of fact existed regarding whether the maintainer was within a lane of traffic. Simply put, it was not in view of the record before us.

Conclusion

The uncontradicted testimony illustrates that Caldwell 1) passed through a town (approximately six miles from the accident scene) where he encountered "bad," "slick" roads, 2) saw one maintainer "working the highway[]," 3) noticed that a portion of the highway was down to one lane, 4) sped his vehicle up to 50 mph on a road top that had snow and ice, 5) saw another maintainer in "plenty of time" to avoid it, 6) "figured, no problem," 7) tried to change lanes, 8) hit ice, 9) lost control of his car, 10) opted not to use his brakes or a lower gear to slow his car, 11) could not change his "vector" away from the maintainer which sat on the shoulder several feet from the lane of traffic, and 12) prepared for a collision. ⁽⁴⁾ In situations like that at bar wherein a driver of one vehicle struck another which was visible and stopped outside the lane of traffic, the conduct of the driver of the latter vehicle (even if negligent) is held not to be a proximate cause of the accident, as a matter of law. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 616 (Tex. 1949) (involving poor weather conditions and holding that the driver of the parked yet visible vehicle could not reasonably foresee the collision); Red Ball Motor Freight, Inc. v. Arnspiger, 449 S.W.2d 132, 138-39 (Tex. Civ. App.--Dallas 1969, no writ) (involving the driver's confusion as to whether the parked vehicle was actually parked and in her confusion attempted to evade it); LaGard v. American Petrofina Co., 447 S.W.2d 448, 450 (Tex. Civ. App.--Dallas 1969, writ ref'd. n.r.e.) (and cases cited therein); see Scott v. Jost, 461 S.W.2d 686, 688 (Tex. Civ. App.--Amarillo 1970, no writ) (holding that the driver who struck the parked vehicle was the cause in fact of the accident and that a reasonably prudent person in the position of the driver of the parked vehicle would not anticipate the collision). We conclude that this rule controls and disposes our situation. Consequently, the trial court did not err in granting summary judgment in favor of Sims and entering judgment denying Caldwell recovery.  

Accordingly, we affirm the summary judgment entered below.

Brian Quinn

Justice

Do not publish.

1. The petition was subsequently amended several times. Furthermore, the live pleading mentioned nothing of exemplary damages. Given that the amended document superceded its predecessor, Tex. R. Civ. Proc. 65, and exemplary damages went unmentioned in the successor, Sims contention that the trial court properly denied the claim for exemplary damages is moot.

2.

Sims testified that when traveling in the maintainer, the blade should be "up." So too did he state that the blade was "up" when the accident in question occurred. We are cited to nothing which disputes this or which illustrates that the blade was not in the "travel position" as suggested by Caldwell.

3.

Review of the picture depicting the accident scene and road maintainer reveals that the blade of the vehicle extended passed the wheels of same. Yet, the amount extending passed the wheels was far less than the six feet needed to cause the blade to enter the nearest lane of traffic.

4.

In his live pleading, Caldwell averred that Sims was "'blading' snow and ice" prior to the collision. The assertion is one of fact not pleaded in the alternative. Consequently, it is an admission by Caldwell that the road on which he drove 50 mph had, prior to the accident, snow and ice on it. See Withrow v. State Farm Lloyds,, 990 S.W.2d 432, 436 (Texarkana 1999, pet. denied) (stating that assertions of fact in the live pleading of a party not averred in the alternative are formal judicial admissions conclusively establishing the fact admitted). And, because it is adverse to his contention that the roadway contained neither snow nor ice prior to the location whereat he saw the second maintainer, it is competent summary judgment evidence which binds him. Id.