in the Interest Of: J.A.S.C., J.A.L.C., N.D.C, and G.S.C , 2014 Tex. App. LEXIS 4359 ( 2014 )

AFFIRMED; Opinion Filed April 22, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-01577-CV
IN THE INTEREST OF J.A.S.C., J.A.L.C., N.D.C, AND G.S.C, CHILDREN
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-12-08960-T
MEMORANDUM OPINION
Before Justices FitzGerald, Lang, and Fillmore
Opinion by Justice Lang
This is an appeal from a decree, entered pursuant to a mediated settlement agreement
(MSA), terminating Father’s parental rights to his four children and appointing the Dallas
County Child Protective Services Unit of the Texas Department of Family and Protective
Services (CPS) as the children’s permanent managing conservator. 1 In two issues, Father asserts
the evidence is legally and factually insufficient to support the termination. We affirm.
I. BACKGROUND 2
The children, J.A.S.C., J.A.L.C., N.D.C., and G.S.C., were removed from the home in
May 2012 after CPS received three referrals for physical neglect and negligent supervision. At
1
Mother’s parental rights were also terminated, but she is not a party to this appeal.
2
Because the decree was entered pursuant to an MSA, the evidentiary record is limited and consists only of the prove-up testimony of the
CPS caseworker and the children’s guardian ad litem. However, in addition to evidence presented at the hearing, the trial court could also take
judicial notice of its own records and prior pleadings in the case with or without a party’s request. See In re Estate of Clark, 198 S.W.3d 273, 275
(Tex. App,–-Dallas 2006, pet. denied). The trial court was well aware of the extended duration of this matter, as well as the pleadings and orders
in its file. Id. Moreover, in reciting the facts in their briefs, the parties rely on documents contained in the clerk’s record. Accordingly, we also
rely on them in providing the background of the case.
the time, J.A.S.C. was three years old, J.A.L.C., was two years old, N.D.C. was eighteen months
old, and G.S.C. was three months old. Father and Mother were provided a service plan and
ordered to complete parenting classes, individual counseling, and psychological evaluations.
Over the next several months, Father and Mother completed the parenting classes and
psychological evaluations and attended counseling. The children were gradually returned home
between February 2013 and March 2013, and for the next six months, CPS provided in-home
counseling and monitored the home. During this time, the parents were to (1) learn and apply
“realistic expectations for the age and developmental capabilities” of each child; (2) demonstrate
an ability to provide basic necessities for the children such as food, clothing, shelter, medical
care, and supervision; and (3) maintain safe housing.
The children were again removed from the home in September 2013. The family had
recently moved, and a home visit by the CPS caseworker and the children’s guardian ad litem
revealed the apartment complex where the family was living was “run down,” “dirty,” and
“unsafe” with visible drug activity. The home visit also revealed a limited supply of food and
spoiled milk.
At the trial court’s suggestion, the parties mediated the case. The mediation resulted in
an MSA which was signed by the parties, their counsel, and the guardian ad litem and which
provided that (a) the parents’ rights to the children would be terminated on “‘O’ grounds for
failure to fully complete court-ordered services and best interest,” 3 and (b) CPS would be
appointed managing conservator of the children. The MSA also provided in relevant part as
follows:
THE FOLLOWING MEDIATED SETTLEMENT AGREEMENT IS NOT
SUBJECT TO REVOCATION AND IS ENTERED INTO PURSUANT TO
SECTION 153.0071 OF THE TEXAS FAMILY CODE. THIS
3
See TEX. FAM. CODE ANN. § 161.001(1)(O), (2) (West 2014).
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AGREEMENT IS SIGNED BY EACH PARTY TO THE AGREEMENT
AND EACH PARTY’S ATTORNEY WHO IS PRESENT AT THE TIME
THE AGREEMENT IS SIGNED. A PARTY IS ENTITLED TO
JUDGMENT ON THIS MEDIATED SETTLEMENT AGREEMENT
NOTWITHSTANDING RULE 11, TEXAS RULES OF CIVIL
PROCEDURE, OR ANOTHER RULE OF LAW.
1. All parties agree that this agreement, as forth herein below, is in the best
interest of the children the subject of this suit, given the circumstances.
***
4. Each signatory to this settlement has entered into the settlement freely and
without duress after having consulted with professionals of his or her
choice.
5. This stipulation is signed voluntarily and with the advice and consent of
counsel, if one was appointed or employed, on the dates set out below and
subject to the court’s approval, and its provisions are intended to be
incorporated into a final order.
***
20. THE PARTIES HERETO AGREE THAT THIS MEDIATED
SETTLEMENT AGREEMENT IS BINDING ON SAID PARTIES
AND THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.
The agreement was filed that same day with the court and proved-up the following day.
At the prove-up hearing, the CPS caseworker testified that Father and Mother agreed to
termination based on the “O” ground and that she believed termination of the Father’s and
Mother’s parental rights was in the children’s best interest. She explained both parents had a
history of “being evicted,” a “chronic pattern of neglect, physical and medical,” and a “chronic
history of not providing . . . adequate nutrition for the children.” She also testified that three of
the four children were diagnosed as having “failure to thrive” when they were removed from the
home in 2012. Asked about the removal of the children from the home in September 2013, she
stated she found no adequate food for the children, the parents had again been evicted, and the
apartments where they lived were subsequently condemned.
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Corroborating the caseworker’s testimony regarding the removal of the children in
September 2013, the children’s guardian ad litem also testified that the parents had “no physical
or psychological reason” preventing them from working and providing for the children. He
agreed with the caseworker that termination of the parents’ rights and appointment of CPS as the
children’s managing conservator was in the children’s best interest.
The trial court approved the MSA and entered a decree incorporating the terms of the
MSA. Asserting generally that he “was coerced into signing [the MSA] by duress, coercion,
intimidation, and threats” and did not believe termination of his rights was in the children’s best
interest, Father subsequently filed a motion for new trial. The motion was not set for hearing and
was overruled by operation of law.
II. SUFFICIENCY OF THE EVIDENCE
Father’s contention, in his two issues, is that the evidence is legally and factually
insufficient to support the termination. He asserts that the undisputed evidence showed he
completed all required services, and the return of the children to him in February and March
2013 demonstrated improvements in his parenting skills and children’s physical well-being. He
further asserts the termination was based improperly on his financial problems and difficulty
finding stable housing, and that he felt pressure and was under “great duress” when he signed the
MSA. In response, CPS argues that the MSA was binding and the trial court was required to
follow it.
A. Applicable Law
1. Mediated Settlement Agreements
Texas has a policy of encouraging “the peaceable resolution of disputes” particularly in
disputes involving the parent-child relationship. In re Lee, 411 S.W.3d 445, 448 (Tex. 2013)
(quoting TEX. CIVIL PRAC. & REM. CODE ANN. § 154.002 (West 2011)). In furtherance of that
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policy, a trial court may refer a suit affecting the parent-child relationship to mediation and, if an
MSA is reached, must enter a judgment on the MSA without inquiry into whether the MSA is in
the best interest of a child. See TEX. FAM. CODE ANN. § 153.0071(c) (West 2014); Lee, 411
S.W.3d at 447.
Under section 153.0071 of the Texas Family Code, an MSA “is binding on the parties” if
the agreement:
(1) provides, in a prominently displayed statement that is in boldfaced type or
capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party’s attorney, if any, who is present at the time the
agreement is signed.
Id. § 153.0071(d), (e). A trial court may only decline to enter judgment on an MSA if it finds
that a party to the agreement was a victim of domestic violence, the violence impaired the party’s
ability to make decisions, and the MSA is not in the child’s best interest. Id. § 153.0071(e-1);
Lee, 411 S.W.3d at 452.
2. Termination
Parental rights may be terminated only if the court finds by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas
Family Code and (2) termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001
(West 2014). To terminate under section 161.001(1)(O), as the trial court did here, the court
must find the parent failed to comply with the provisions of a court order that specifically
established the actions the parent needed to take to obtain the return of a child who was removed
from the parent as a result of abuse or neglect and was in the permanent or temporary managing
conservatorship of CPS for at least nine months. See id. § 161.001(1)(O). Termination under
“O” does not allow for “consideration of excuses for noncompliance nor does it consider
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‘substantial compliance’ to be the same as completion.” In re I.G., 383 S.W.3d 763, 771 (Tex.
App.-–Amarillo 2012, no pet.). To determine best interest, the court may consider the Holley
factors, 4 such as the parental abilities of the person seeking custody and the stability of the home;
statutory factors under section 263.307 of the family code, such as the willingness and ability of
the child’s family to effect positive environmental and personal changes within a reasonable
period of time; and any other relevant information. See In re J.J.C., 302 S.W.3d 436, 447-48
(Tex. App.-–Houston [14th Dist.] 2009, pet. denied).
B. Standard of Review
Due to the severity and permanency of the termination of parental rights, an appellate
court applies a heightened standard in reviewing the sufficiency of the evidence to support a
termination. See In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re S.L., 188 S.W.3d 388
(Tex. App.-–Dallas 2006, no pet.). The question the appellate court must answer is whether the
proof is such that a reasonable fact finder could have formed a firm belief or conviction about the
truth of the allegations. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). In reviewing the
legal sufficiency of the evidence, the court considers all the evidence in the light most favorable
to the finding. Id. at 266. In conducting this review, the court assumes the fact finder resolved
disputed facts in favor of the finding if a reasonable fact finder could do so and disregards all
evidence that a reasonable fact finder could have disbelieved or found to have been incredible.
Id. In reviewing the factual sufficiency of the evidence, the court considers disputed and
conflicting evidence and will conclude the evidence is insufficient only if, in light of the entire
record, it determines the disputed evidence is so significant that a reasonable fact finder could
not have resolved that disputed evidence in favor of its finding. Id.
4
See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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C. Application of Law to Facts
In arguing the evidence is legally and factually insufficient to support the termination,
Father does not dispute the children were removed due to neglect, the children were in the
temporary managing conservatorship of CPS for at least nine months, or the existence of a court
order specifying the actions necessary for the return of his children. See TEX. FAM. CODE ANN. §
161.001(1)(O). Nor does he dispute the MSA meets the statutory requirements of section
153.0071 or allege he is a victim of family violence. Id. § 153.0071(d), (e-1). His sole
complaint with respect to the MSA itself is that he signed it under pressure and “great duress,”
but nothing in the record supports that. See TEX. R. APP. P. 38.1(i). In fact, the MSA stipulates
that the parties entered into it freely, without duress, and with the advice and consent of counsel.
Because no allegation of family violence was made, the trial court was required to rule on the
MSA without a determination of whether it was in the children’s best interest, and Father was
bound by the terms of the MSA which provided that he failed to fully complete court-ordered
services and that termination of his rights were in the children’s best interest. See id. §
153.0071(e); see also Lee, 411 S.W.3d at 447; I.G., 383 S.W.3d at 771 (concluding evidence
legally and factually sufficient to terminate under “O” where Father admitted he failed to fully
comply with provisions of court order that specified actions necessary for return of children).
Moreover, other evidence also supports the termination. Although the evidence shows
the children were returned to Father after he completed parenting classes, submitted to a
psychological evaluation, and began attending counseling, the evidence also shows that just one
month prior to trial he was found not to have adequate food for the children and being evicted
from an apartment located in a complex that was subsequently condemned due to safety
concerns. This was consistent with the pattern of behavior he had shown prior to the return of his
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children and contrary to the requirement that he maintain safe housing and provide the children
basic necessities, such as food and shelter.
We conclude, on this record and applying the proper standard of review, the trial court
could have reasonably formed a firm belief or conviction that Father failed to comply with the
requirements for the return of his children and that termination was in the children’s best interest.
See, e.g., In re A.M., 385 S.W.3d 74, 82-84 (Tex. App.-–Waco 2012, pet. denied) (concluding
evidence factually sufficient to support best interest prong even though Mother showed recent
improvements where evidence also showed, among other problems, that Mother had history of
neglecting and endangering the children, had unstable housing, and unstable employment); In re
J.S., 291 S.W.3d 60, 66 (Tex. App.-–Eastland 2009, no pet.) (concluding evidence legally and
factually sufficient to support termination on “O” grounds where evidence showed that, while
Mother complied with visitation, medication, and counseling requirements, she failed to achieve
goals of maintaining safe and appropriate housing and providing for her children’s needs). We
resolve Father’s two issues against him.
III. CONCLUSION
Having resolved Father’s two issues against him, we affirm the trial court’s judgment.
/Douglas S. Lang/
DOUGLAS S. LANG
131577F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.A.S.C., J.A.L.C., On Appeal from the 301st Judicial District
N.D.C, AND G.S.C, CHILDREN Court, Dallas County, Texas
Trial Court Cause No. DF-12-08960-T.
No. 05-13-01577-CV Opinion delivered by Justice Lang. Justices
FitzGerald and Fillmore participating.
In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s
judgment.
Judgment entered this 22nd day of April, 2014.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
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