in the Interest of G.A.H. and K.D.B., Children ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00015-CV
IN THE INTEREST OF G.A.H. AND
K.D.B., CHILDREN
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Appellant G.H. (Father)2 appeals the termination of his parental rights to
G.A.H. (Ginny) and K.D.B. (Katie). We will affirm.
I. Background
In September 2009, the Department of Family and Protective Services (the
Department) received a referral that Ginny and Katie were in danger from
neglectful supervision. The referral alleged that the children’s mother would
1
See Tex. R. App. P. 47.4.
2
We use aliases for the children and the parents and foster parents
throughout this opinion. See Tex. R. App. P. 9.8(b)(2).
leave them with family members and would not pick them up for as long as a
month. In December 2009, the Department took Ginny and Katie from their
mother and placed them in foster care with the Browns. Mr. Brown is the brother
of the children’s maternal grandmother. Father was aware of CPS’s involvement
and signed a release allowing the children to be placed with the Browns.
Ginny and Katie’s case was assigned to conservatorship worker Melanie
Scott. Scott could not locate Father. The only information the children’s mother
could provide was that Father was living ―in Kansas City somewhere.‖ 3 Scott
eventually contacted Father’s mother on March 3, 2010, who also could not
provide a contact address or phone number. Father’s mother told Scott that
Father ―was just kind of living here and there, that he didn’t have a stable
environment and there was no way to get ahold of him.‖
In August of 2010, Father finally contacted Scott. Father admitted that he
had received Scott’s messages through his mother but had not attempted to
contact Scott or anyone at CPS because he did not have stable housing or
employment. At the time he called Scott, Father had been employed for a
month. Scott obtained Father’s address and mailed him his service plan on
August 23, 2010. On September 14, 2010, Father and Scott spoke again over
the phone. Father told Scott he had received the service plan, and they
3
The parental rights of the girls’ mother were terminated earlier in this case
by an interlocutory order on October 27, 2010. The mother has not appealed the
termination of her rights and is not a party to this appeal.
2
discussed providers where Father could engage in services. Scott gave Father
the phone numbers of various resources and told him that it was his
responsibility to complete the services and fax or e-mail her documentation.
During their August phone call, Father expressed an interest in visiting his
daughters on Ginny’s birthday, and Scott offered to arrange visitation for him if he
came to Texas. Father also told Scott he was going to mail Ginny a birthday
present. When they spoke again in September, Father told Scott that his sister
was getting married and that the wedding would ―interfere‖ with his plans to visit
his children. He never visited the children or sent any presents. Father never
wrote or called his daughters, despite being told by Scott that he could.
Trial was held on December 7, 2010. Father appeared by counsel but not
in person. Father’s counsel stated that she was not aware that Father would not
be attending the trial until the day before when he faxed a doctor’s note
explaining that he was on prescription medication and unable to drive.
At trial, Scott testified to the trouble in locating and communicating with
Father. She further stated that she believed it was in the children’s best interest
for Father’s parental rights to be terminated. Scott said that CPS’s permanent
plan for the children was for them to be adopted by their foster parents, the
Browns.
Mr. Brown, the only other witness at trial, testified that he spoke to Father
once in December 2009 and once in February 2010 regarding blood work to
determine whether he was Katie’s father. Brown said that Father has made no
3
attempt to visit the girls while they were in the Browns’ care and that he did not
provide any financial support or supplies to help care for the children. He
testified that the girls call him ―dad‖ and Mrs. Brown ―mom‖ and that they would
love to adopt the children.
The trial court found that Father’s parental rights should be terminated
under section 161.001 of the family code and ordered that managing
conservatorship continue with the Department. This appeal followed.
II. Standard of Review
A parent’s rights to ―the companionship, care, custody, and management‖
of his or her children are constitutional interests ―far more precious than any
property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the Department seeks not just to limit
parental rights but to erase them permanently—to divest the parent and child of
all legal rights, privileges, duties, and powers normally existing between them,
except for the child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West
2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize
termination proceedings and strictly construe involuntary termination statutes in
4
favor of the parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161,
167 (Tex. App.—Fort Worth 2008, no pet.).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2010); § 161.206(a).
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.‖ Id. § 101.007 (West 2008). Due process demands this heightened
standard because termination results in permanent, irrevocable changes for the
parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
III. Discussion
Father appeals the termination of his parental rights in six issues. The
Department argues that Father’s first, fourth, fifth, and sixth issues have been
forfeited because he did not file a statement of points as required by the family
code. See Tex. Fam. Code Ann. § 263.405 (West 2008). Father admits that he
never filed a statement of points, but claims in his second issue that the failure
was the result of ineffective assistance by his trial counsel.4 We therefore
address Father’s second issue first.
4
A claim of ineffective assistance of counsel in a parental rights termination
case may be brought on appeal despite a failure to file a statement of points. In
re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009).
5
A. Ineffective Assistance of Counsel
To prove ineffective assistance, the appellant must show (1) that counsel’s
performance was deficient and (2) that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); see J.O.A., 283 S.W.3d at 342 (applying Strickland to a parental rights
termination case). ―This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.‖
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. ―To make this showing, [Father]
would be required to demonstrate that he could prevail on appeal on [the] issues
raised in his late-filed statement of points.‖5 In re B.G., 317 S.W.3d 250, 256
(Tex. 2010); see also J.O.A., 283 S.W.3d at 344 (noting that appellant father
must show that ―had counsel properly preserved error by filing the statement of
points, the court of appeals would have reversed the termination‖ based on the
issues he would have raised in his statement of points). If Father’s trial counsel
could not have filed any meritorious claim on appeal, a failure to file a statement
of points ―would not necessarily indicate deficient representation.‖ Robinson v.
5
Father never filed a statement of points, even an untimely one. However,
he argued in his first amended motion for new trial and in his first, fourth, fifth,
and sixth issues on appeal that the evidence was legally and factually insufficient
to support the termination of his rights and that the denial of his motion for a
continuance and the denial of his motion for an extension of the dismissal date
precluded him from presenting evidence necessary for his defense. Because he
does not claim that he would have raised any other issues in his statement of
points besides those he attempts to raise now on appeal, we will assume for the
purposes of our evaluation under Strickland that these would be the issues he
would have raised.
6
Dep’t of Family & Protective Servs., 317 S.W.3d 410, 411 (Tex. App.—Houston
[1st Dist.] 2010, no pet.). Thus, in order to evaluate Father’s claim of ineffective
assistance of counsel, we review the merit of his other issues. See J.O.A., 283
S.W.3d at 344–47 (evaluating appellant father’s issues on appeal under the
second prong of the Strickland test).
1. The Motions for Continuance and Extension of Dismissal Date
In his first issue, Father argues that the trial court abused its discretion by
denying his motion for continuance and his motion for an extension of the
dismissal date. To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot
conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
On December 1, 2010, six days before trial, Father filed a motion for
continuance. Father claimed only that he ―need[ed] time to complete services
and be part of his children’s li[ves]‖ and that the continuance ―is not sought solely
for delay but that justice may be done.‖ Texas Rule of Civil Procedure 251 states
that no continuance will be granted ―except for sufficient cause supported by
7
affidavit, or by consent of the parties, or by operation of law.‖ Tex. R. Civ. P.
251. A trial court is presumed to have correctly exercised its discretion when it
denies a motion that does not comply with the requirements of Rule 251.
Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
Father’s motion for continuance was not supported by affidavit, and he
does not argue that the other parties consented to a continuance or that under
some other operation of law a continuance was required. The trial court did not
abuse its discretion in denying Father’s motion for continuance. See In re
C.P.V.Y., 315 S.W.3d 260, 270 (Tex. App.—Beaumont 2010, no pet.) (presuming
that the trial court did not abuse its discretion by denying a motion for
continuance that was not supported by affidavit); In re Z.C., 280 S.W.3d 470, 478
(Tex. App.—Fort Worth 2009, pet. struck) (holding that because a motion for
continuance was unsworn and unsupported by affidavit, ―under the plain
language of the rule, the trial court was without discretion to grant it‖).
Also on December 1, 2010, Father filed a motion requesting an extension
of the dismissal date. Section 263.401 of the family code requires that the trial
court dismiss the suit affecting the parent-child relationship after one year unless
trial has commenced or the court has granted an extension. Tex. Fam. Code
Ann. § 263.401(a) (West Supp. 2010). Section 263.401(b) also requires the
moving party to prove (1) ―that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department‖ and (2)
that continuing the appointment of the department as temporary managing
8
conservator is in the best interest of the child. Id. § 263.401(b). The dismissal
date for this case was set for December 27, 2010. In his motion, Father argued
only that ―[t]he circumstances of the case and the needs of the children are such
that it would not be in the best interest of the children to dismiss the suit or to
render final orders‖ and that an extension would be ―in the best interest of the
children.‖
Father did not testify at the hearing and there is no affidavit in the record
demonstrating any extraordinary circumstances that would support an extension.
See In re D.K., No. 02-09-00117-CV, 2009 WL 5227514, at *2 (Tex. App.—Fort
Worth Dec. 31, 2009, no pet.) (mem. op.) (holding that trial court did not abuse its
discretion by denying appellant’s motion for extension when she presented no
evidence in support); see also In re Z.J.C., No. 10-09-00026-CV, 2009 WL
2179976, at *5 (Tex. App.—Waco July 22, 2009, no pet.) (noting that the
appellant could not show harm by court’s denial of her motion for continuance
because she ―never alleged in her motion for continuance, her motion for new
trial, or in her brief on appeal how much time she needed or what other
resources could have been discovered had she had additional time to prepare for
trial‖). At the hearing on the motion, Father’s trial counsel stated that the
extension was needed so that Father could complete his services. The
Department objected to an extension because Father had more than ample
opportunity to begin his services. Father’s attorney claimed that all of the
parenting classes offered in Father’s vicinity were booked. This does not explain
9
his failure to complete any of his other services, including drug assessment,
anger management courses, psychological evaluation, or counseling. ―We have
repeatedly held that when a parent, through his or her own choices, fails to
comply with a service plan and then at the time of the termination trial requests a
continuance or an extension of the statutory dismissal deadline in order to
complete the plan, the trial court does not abuse its discretion by denying the
continuance or extension.‖ In re K.P., No. 02-09-00028-CV, 2009 WL 2462564,
at *4 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (mem. op.). Father failed to
prove any extraordinary circumstances that would warrant an extension. The
trial court did not abuse its discretion in denying Father’s motion for an extension.
Father would not prevail on his first issue.
2. Sufficiency of the Evidence
In his fourth, fifth, and sixth issues, Father complains that the evidence
presented at trial is legally and factually insufficient to support the trial court’s
termination of his parental rights under section 161.001 of the family code.
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may
not be based solely on the best interest of the child as determined by the trier of
fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In
10
this case, the Department alleged proof under subsections (B) and (N) of section
161.001 of the family code as to Father.6 Section (B) states that the court may
order termination of the parent-child relationship if the court finds that the parent
has ―voluntarily left the child alone or in the possession of another not the parent
without expressing an intent to return, without providing for the adequate support
of the child, and remained away for a period of at least three months.‖ Tex. Fam.
Code Ann. § 161.001(1)(B) (West 2008). Section (N) allows for termination if the
parent has
constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of Family
and Protective Services or an authorized agency for not less than six
months, and:
(i) the department or authorized agency has made reasonable
efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained
significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the
child with a safe environment.
Id. § 161.001(1)(N).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
6
In his fifth issue, Father claims that the trial court found that Father
―voluntarily left the child[ren] alone or in the possession of another without
providing adequate support of the child[ren] and remained away for a period of at
least six months.‖ Tex. Fam. Code Ann. § 161.001(1)(C). However, it does not
appear that the trial court made such a finding or terminated Father’s parental
rights under this subsection. We need not address Father’s fifth issue.
11
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
reasonable factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness-credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573–74. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that Father violated subsections (B) or (N) of section 161.001(1). Tex. Fam.
Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in favor of
12
the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction in the truth of its finding, then the evidence is factually
insufficient. H.R.M., 209 S.W.3d at 108.
In his fourth issue, Father argues that there is legally and factually
insufficient evidence to support a finding that he left the children in the
possession of the Browns without expressing an intent to return.7 See Tex. Fam.
Code Ann. § 161.001(1)(B).
Brown testified that Father was aware that the Department had placed the
children with the Browns and that Father indicated that he wanted the children to
live with the Browns. Scott testified that Father was aware that the Department
had been trying to find him for months but Father chose not to contact the
Department. Father did express to Scott an interest in visiting his daughters on
Ginny’s birthday, but he later told Scott that a family wedding would prevent him
from travelling, and he never made any other plans to travel to Texas. He never
visited the children or sent any presents. Father never wrote or called his
daughters, despite being told by Scott that he could. When Father called the
Browns to request a blood test, he did not ask to speak to the children and said
nothing about wishing to see them. Mr. Brown testified that Father has not
shown any interest in seeing the children since they have been in the Browns’
7
Subsection (B) also requires evidence that Father did not provide ―for the
adequate support of the child, and remained away for a period of at least three
months,‖ see Tex. Fam. Code Ann. § 161.001(1)(B), but Father does not
challenge those findings in his argument on appeal.
13
care. Father never expressed to Mr. Brown an intent to return for his children.
Father never provided the Browns with financial support for his children.
There was no evidence that Father was interested in gaining custody of
the children, moving to Texas to be with the children, or bringing the girls to
Missouri. The evidence supports the trial court’s inherent finding that Father had
no plans for a permanent reunification with his children. One suggestion of a
single visit that was never followed through on is not an expression of an intent to
return. A factfinder could have reasonably formed a firm conviction that Father
voluntarily left the children in the Browns’ possession without expressing an
intent to return. We hold there is legally and factually sufficient evidence to
support termination under subsection (B). Father would not prevail on his fourth
issue.
Along with a best interest finding, a finding of only one ground alleged
under section 161.001(1) is necessary to support a judgment of termination. See
Tex. Fam. Code Ann. § 161.001. Thus, even if we were to hold that Father could
prevail under his sixth issue (that there was insufficient evidence to support
termination under subsection (N)), because the judgment could be supported
under subsection (B), we need not address Father’s sixth issue. See Tex. R.
App. P. 47.1; see also In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth
2007, no pet.); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no
pet.).
14
Having determined that Father would not have prevailed on any of the
issues he would have brought had he timely filed a statement of points, we hold
that Father failed to demonstrate that his trial counsel’s failure to file a statement
of points prejudiced his defense and deprived him of a fair trial. See Strickland,
466 U.S. at 687, 104 S. Ct. at 2064. We overrule Father’s second issue.
Because Father did not file a statement of issues, he has forfeited the
issues raised in his first, fourth, fifth, and sixth points. See Tex. Fam. Code Ann.
§ 263.405(i); In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010). We overrule those
issues.
B. Motion to Extend the Deadline to File a Statement of Points
In his third issue, Father argues that the trial court abused its discretion in
denying his motion to extend the deadline to file a statement of points.
The trial court signed the final order of termination on December 7, 2010.
Father filed his motion for new trial and notice of appeal on January 6, 2011. He
did not file a statement of points with his notice of appeal. On January 19, 2011,
Father filed an amended motion for new trial and a motion to extend the deadline
to file a statement of points, which the trial court denied.
A party wishing to appeal a termination order must file with the trial court a
statement of points on which the party intends to appeal within fifteen days from
the day the order was signed. Tex. Fam. Code Ann. § 263.405(b). A trial court
may grant a motion to extend the deadline to file a statement of points if the
movant shows good cause for his failure to timely file and the new deadline is
15
within thirty days of the termination order. Tex. R. Civ. P. 5; In re M.N., 262
S.W.3d 799, 803 (Tex. 2008). The motion itself was not filed within thirty days of
the termination order. The trial court did not abuse its discretion by denying the
late-filed motion. However, even if the trial court abused its discretion in denying
Father’s motion, Father cannot show harm because, as discussed above, Father
would not have prevailed on appeal. See Tex. R. App. P. 44.1(a). We overrule
Father’s third issue.
Conclusion
Having overruled Father’s six issues, we affirm the judgment of the trial
court.
LEE GABRIEL
JUSTICE
PANEL: McCOY, MEIER, and GABRIEL, JJ.
DELIVERED: October 6, 2011
16