v. in the Interest of P.K.C., L.E.W. L.J.W., and J.D.W., JR. ( 2002 )

Affirmed and Opinion filed June 6, 2002

Affirmed and Opinion filed June 6, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-01464-CV

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IN THE INTEREST OF

P.K.C., L.E.W., L.J.W., and J.D.W., Jr.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 99-07539J

O P I N I O N

Judy Clark appeals from a judgment terminating her parental rights.  In four points of error, appellant challenges the factual sufficiency of the evidence and claims that the trial court erred in terminating her parental rights because temporary custody had been awarded based on a defective affidavit and that the Texas Department of Protective and Regulatory Services (ATDPRS@) had no legal authority to file suit.  We affirm.

Background and Procedural History

In 1991, appellant was convicted of the felony offense of injury to a child for hitting her then six-year old son, P.K.C., with a utility belt.  Appellant was placed on ten years= probation and was required to attend parenting classes and Narcotics Anonymous for smoking cocaine and marijuana.  Vicki Gentry, a caseworker for TDPRS from 1997 to 1999, testified that according to agency records, P.K.C. and appellant=s two other children were removed from appellant in 1991.  L.E.W. and L.J.W. were returned to her in December of 1993 and P.K.C. was returned in June of 1994.^[1]  Thereafter, in May of 1997, appellant=s husband and P.K.C.=s stepfather was charged with injury to a child for physically abusing P.K.C.^[2]  TDPRS took custody of all four children on May 13, 1997, due to serious marks on the children.  At that time, Gentry testified that she created a Family Service Plan with the goal of family reunification.  The plan required the parents to participate in counseling and required appellant to comply with the terms of her probation plan.  Appellant signed the plan for family reunification.  However, appellant violated her probation in August of 1997 and was sentenced to five years= confinement.  The children remained with appellant=s husband until he failed to comply with counseling requirements in October of 1997.  The three youngest children, L.E.W., L.J.W., and J.D.W., Jr., then were placed with their paternal aunt.  P.K.C. was placed in an emergency shelter. 

Appellant was released from jail in 1999 and placed in a halfway house.  However, appellant left the halfway house without permission in August of 1999 and by October 18, 1999, Gentry determined that appellant could not be found.  This action then proceeded on the affidavit of Gentry, who stated under oath that the mother=s presence was unknown.  The First Amended Petition to Terminate Parent Child Relationship alleged that appellant voluntarily left the children for 3 months or 6 months.  Both biological fathers voluntarily relinquished parental rights.  The trial court entered a decree terminating appellant=s rights on October 30, 2000.  This appeal followed. 

Factual Sufficiency

In her first and second points of error, appellant challenges the factual sufficiency of the evidence to support the trial court=s finding that termination of appellant=s parental rights was in the best interest of her four children. 

Involuntary termination of the parent-child relationship is governed by section 161.001 of the Texas Family Code.  A court may order termination if it finds the following by clear and convincing evidence: (1) one or more of the statutory grounds set forth in section 161.001(1), and (2) that termination is in the best interest of the child.  Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2002). Appellant does not challenge the trial court=s finding by clear and convincing evidence that appellant engaged in conduct meeting the first statutory ground for termination under section 161.001(1).^[3]  Appellant only attacks the trial court=s finding that termination of her parental rights is in the children=s best interest.

Our analysis begins by determining the proper standard of review.  As noted above, the Family Code requires a trial court=s findings to be made by clear and convincing evidence.  Tex. Fam. Code Ann. ' 161.001.  Recently, in In re W.C., 56 S.W.3d 863 (Tex. App.CHouston [14th Dist.] 2001, no pet.), this court addressed whether we should apply a heightened standard when reviewing a factual sufficiency complaint in such cases.  Due to the fundamental constitutional rights implicated by termination of the parent-child relationship, and in light of the Texas Supreme Court=s opinion in Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Tex. 2000), we concluded that an order terminating parental rights should be subject to a heightened standard of appellate review.  In re W.C., 56 S.W.3d at 868.  Accordingly, we may sustain appellant=s factual sufficiency challenge only if, after reviewing all the evidence in the record, we determine that (1) the evidence is factually insufficient to support the trial court=s finding by clear and convincing evidence, or (2) the court=s finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing.  Id.

In Holley v. Adams, the Texas Supreme Court listed several factors that courts have considered in determining whether termination is in a child=s best interest.  This nonexclusive list of factors includes: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parenting abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interests of the child; (6) the plans for the child of these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent‑child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.  544 S.W.2d 367, 371-72 (Tex. 1976). 

The trial court had before it evidence of a pattern of domestic and physical abuse of the children beginning with appellant=s conviction of injury to a child in 1991.  Appellant=s sister-in-law, Aretha Kay Williams, testified that she lived with the family while appellant=s children were living in the home and witnessed the parents= physical and verbal abuse of the children.  She testified that she saw appellant strike the two oldest children by hitting them in the back with her fist and using a broom handle.  Appellant testified that her husband physically abused her and that she thought it was okay for him to physically punish P.K.C.  Appellant agreed, however, that it was not appropriate for her husband to physically and verbally abuse P.K.C.  She also admitted that these acts by her husband endangered the physical and emotional well-being of her child.  In May of 1997, appellant=s husband was charged with injury to a child for physically abusing P.K.C. and TDPRS took custody of all four children due to serious marks on the children.

When TDPRS took custody of the children it entered into a Family Reunification Plan with appellant.  As part of the Family Reunification Plan, appellant was required to satisfy the terms of her probation.  However, appellant violated the terms of her probation and subsequently was incarcerated in 1997.  The evidence further showed appellant admitted that she made no attempt to find out about her children=s well-being while she was in prison and provided no food or clothing for the children while she was incarcerated.  Appellant claimed that she made no attempt to contact TDPRS regarding the status of her children because she did not have the contact information; she admitted on cross-examination, however, that she had that information. Appellant was unable to provide the name of a relative who was willing to take in her children.

Appellant was released from jail in 1999 and placed in a halfway house.  However, appellant left that house without authorization.  Appellant was found and returned to confinement.  While incarcerated, and while the suit for termination was pending, appellant engaged in fighting, which extended the time appellant would be required to remain in prison.  Finally, appellant admitted that once released from prison she had no plans to return to Houston where her children were living, but said she would try to visit them some weekends.

Janine Collymore, the children=s TDPRS caseworker at the time of trial, testified that P.K.C. was in an emergency shelter and that he supported termination of appellant=s parental rights over him.  She also testified that the other children have been living with their paternal aunt for three years, have adjusted well to the placement, and wished to be adopted by their aunt.  Collymore stated that the aunt=s home provides a safe and stable environment.

We find the evidence is factually sufficient to support a finding by clear and convincing evidence that termination of appellant=s parental rights is in the best interest of her children.  We overrule appellant=s first and second points of error.        

In her third point of error, appellant claims the procedures initiating the termination process were improper. Appellant specifically argues that TDPRS took emergency possession of the children, but failed to comply with section 262.101 of the Texas Family Code.  See Tex. Fam. Code Ann. ' 262.101 (Vernon Supp. 2002) (requiring TDPRS to obtain prior court approval, based on a hearing supported by an affidavit, sworn to by a person with personal knowledge, before taking possession of the children).  However, the Petition to Terminate Parent-Child Relationship establishes that TDPRS took possession of the children pursuant to section 262.104 of the Texas Family Code, which does not require prior court approval or support of an affidavit.  See Tex. Fam. Code Ann. ' 262.104 (Vernon Supp. 2002).  The record indicates TDPRS complied with the procedural requirements of section 262.104 of the Texas Family Code in initiating the termination process. Therefore, appellant=s argument on this point is without merit. 

Further, appellant asserts no authority in support of her contention that an alleged error in the temporary award of emergency custody requires reversal of the trial court=s later termination of appellant=s parental rights.  See Tex. R. Civ. P. 38.1.; see also Novostad v. Cunningham, 38 S.W.3d 767, 771 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (holding that when a party cites no authority in support of a point of error that issue is waived).  Appellant=s third point of error is overruled.^[4]

In her fourth and final point of error, appellant argues that TDPRS did not have authority to re-file this suit after the original suit was dismissed due to the disqualification of the judge.  Appellant relies on In the Interest of T.M. to claim that section 263.401 of the Texas Family Code bars refiling suit without alleging new facts.  33 S.W.3d 341, 347 (Tex. App.CAmarillo 2000, no pet.); see Tex. Fam. Code Ann. ' 263.401 (Vernon Supp. 2002).  Section 263.401 requires automatic dismissal of a case when no final judgment is issued within 18 months of filing a Temporary Managing Conservatorship (ATMC@) action.  This section also requires a showing of new facts in order to re-file a TMC action that has been automatically dismissed for lack of a final judgment within the statutorily required time frame.  However, the record shows that the prior suit here was dismissed because the trial judge had a conflictBas a former ad litem attorney for the children in a prior suit.  The suit was re-filed in a different court the next day. This case was not a forced dismissal under the statute and therefore, section 263.401 does not apply. Accordingly, appellant=s argument on this point is without merit and her fourth point of error is overruled. 

The judgment of the trial court is affirmed.

/s/        Leslie Brock Yates

Justice

Judgment rendered and Opinion filed June 6, 2002.

Panel consists of Justices Yates, Edelman, and Wittig^[5].

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  Appellant later gave birth to a fourth child, J.D.W., Jr.

^[2]  Appellant=s husband is the biological father of appellant=s three other children. 

^[3]  Specifically, the court found by clear and convincing evidence that appellant Aengaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.@  See Tex. Fam. Code Ann. ' 161.001(1)(E).

^[4]  In addition, we note that TDPRS submitted an affidavit from Vicki Gentry, who had personal knowledge based on her experience as the TDPRS caseworker for appellant=s children from 1997 to 1999. 

^[5]  Senior Justice Wittig sitting by assignment.