in the Interest of I.D., a Child ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00030-CV
IN THE INTEREST OF I.D., A CHILD
On Appeal from the County Court at Law No. 2
Gregg County, Texas
Trial Court No. 2020-621-CCL2
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
After Mother admitted that she was using Vicodin, marihuana, and methamphetamine
and that she had slapped her two-year-old son, B.B.,1 while under the influence of
methamphetamine, the Department of Family and Protective Services sought to establish a safety
plan that would allow Mother to go to rehabilitation. Mother identified Cherise and Frank
Young as the persons with whom she wanted B.B. to stay while she went to rehabilitation.
When Mother failed to go to the agreed treatment center and the Department lost contact with
her, the Department confirmed that the Youngs would care for B.B. and removed him from
Mother’s care. About one year later, while this case was pending, Mother gave birth to I.D., who
was also removed from Mother’s care after she admitted to using methamphetamine during her
pregnancy.2 I.D. was also placed with the Youngs. After a final hearing, the trial court
appointed the Youngs sole managing conservators of B.B. and I.D. and appointed Mother
possessory conservator of the children.3
In its final order in this case, the trial court found that the appointment of a parent or both
parents as managing conservators of I.D. would not be in the child’s best interest because the
1
We refer to the minor children by their initials and to their parents by pseudonyms. See TEX. R. APP. P. 9.8.
2
Mother tested positive for methamphetamine three times while pregnant with I.D., who was born on March 31,
2020.
3
Mother was appointed possessory conservator of B.B. in the trial court’s cause number 2019-698-CCL2, which is
on appeal under our cause number 06-22-00029-CV. She was appointed possessory conservator of I.D. in the trial
court’s cause number 2020-621-CCL2, which is on appeal in this case. The two cases were consolidated for trial.
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appointment would significantly impair I.D.’s physical health or emotional development.4 See
TEX. FAM. CODE ANN. § 153.131(a). Instead, the trial court appointed the Youngs permanent
managing conservators of I.D., with the rights and duties specified in Section 153.371 of the
Texas Family Code. Section 153.371 provides that, “[u]nless limited by court order . . . a
nonparent . . . appointed as a managing conservator of the child has . . . (10) the right to
designate the primary residence of the child.” TEX. FAM. CODE ANN. § 153.371(10) (Supp.).
The trial court’s order did not limit the Youngs’ right to designate I.D.’s primary residence. The
final order also appointed Mother possessory conservator of I.D. and entered an order regarding
her possession of and access to the child. In addition, the final order terminated the parental
rights of the alleged father, D.E., to the child, found that D.E. had executed a valid waiver of
interest in the child, and found that termination of D.E.’s parental rights was in the best interest
of I.D.
In her appeal in this case, Mother complains of the final order appointing her possessory
conservator of I.D. In her second and third issues, Mother asserts that (1) the evidence is legally
and factually insufficient to support the trial court awarding the Youngs the right to establish the
residence of I.D. without imposing a geographical restriction and (2) the trial court abused its
discretion by excluding the testimony of Mother’s expert witness. These issues are identical to
the issues addressed in our opinion issued this day in In the Interest of B.B., a Child, cause
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Mother does not challenge this finding. To the extent Mother’s brief could be construed to challenge the trial
court’s failure to appoint her managing conservator of I.D., we find that she has waived this issue because her brief
does not contain citations to appropriate legal authority and does not contain a clear and concise argument applying
such authorities to the facts of this case. See TEX. R. APP. P. 38.1(i). “[A] point of error not adequately supported
by either argument or authorities is waived.” In re A.B., 646 S.W.3d 83, 96 (Tex. App.—Texarkana 2022, pet.
denied) (quoting In re N.L.G., No. 06-06-00066-CV, 2006 WL 3626956, at *2 (Tex. App.—Texarkana Dec. 14,
2006, pet. denied) (mem. op.)).
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number 06-22-00029-CV, and for the reasons stated therein, we likewise overrule these issues in
this case.
Mother also asserts that there is factually insufficient evidence to support the trial court’s
finding that termination of D.E.’s parental rights was in the best interest of I.D.5 Because Mother
lacks standing to challenge the termination of D.E.’s parental rights and because we overrule her
other issues, we will affirm the trial court’s judgment.
I. Procedural Background
After genetic testing eliminated one man as the possible father of I.D., Mother identified
D.E. as his father, and the Department filed a first amended petition seeking, inter alia, the
determination of the parentage of D.E. through genetic testing and termination of D.E.’s parental
rights to I.D. D.E. filed a pro se answer denying parentage and agreeing to genetic testing. In
the first amended petition, a third man was also alleged to be the father of I.D., but genetic
testing also eliminated him as I.D.’s father, and he was dismissed from the case. The
Department then filed a second amended petition that alleged D.E. was the father of I.D. and
sought the termination of Mother’s and D.E.’s parental rights to I.D. Although the trial court
entered an order for the genetic testing of D.E. to determine his parentage of I.D., the testing had
not been performed at the time of the final hearing.
Apparently, at the final permanency hearing before final hearing, the Department orally
represented that the Department had changed its primary goal from termination to
conservatorship. Although the Department pointed out before the final hearing that its pleadings
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D.E. did not appeal the termination of his parental rights.
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on file sought termination and that conservatorship was a concurrent goal, the trial court limited
the proceeding to a conservatorship. Nevertheless, at the beginning of the third day of trial,
D.E.’s attorney announced that his client had executed an affidavit of waiver of interest in the
child and that he would like the court to terminate his parental rights. 6 The trial court accepted
the affidavit of waiver of interest and found that it was in the best interest of the child. In its
final order, the trial court terminated the parental rights of D.E. and found that termination was in
the best interest of I.D. See TEX. FAM. CODE ANN. § 161.204 (authorizing termination of the
parental rights of “a man who has signed an affidavit of waiver of interest in the child, if the
termination is in the best interest of the child”).
II. Mother Lacks Standing to Challenge the Termination of D.E.’s Parental Rights
In her first issue, Mother complains that there is factually insufficient evidence to support
the trial court’s finding that termination of D.E.’s parental rights was in the best interest of I.D.
Although Mother acknowledges that Section 161.204 authorizes the trial court to terminate the
parental rights of a man based on an affidavit of waiver of interest in a child, she contends that it
does not apply in this case because the trial court limited the trial to a conservatorship, rather
than termination. Mother cites no authority in support of this contention. In addition, Mother
argues that D.E.’s parental rights could not be terminated based solely on his assertion in the
affidavit of waiver of interest that termination was in the best interest of the child. Rather, she
argues, there must be additional evidence to support the best-interest finding. See In re K.D.,
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In the affidavit of waiver of interest, D.E. waived all interest in I.D., relinquished any parental rights he may have
had, asked the court to terminate his parental rights, and acknowledged that termination of his parental rights was in
the best interest of the child.
5
471 S.W.3d 147, 164 (Tex. App.—Texarkana 2015, no pet.) (holding that a similar statement in
an affidavit of relinquishment of parental rights, while relevant to the best-interest finding, still
requires the State to establish that termination is in the best interest of the child by clear and
convincing evidence). Because, she argues, there was no other evidence that termination of
D.E.’s parental rights was in the best interest of I.D., the evidence was factually insufficient to
support the trial court’s best-interest finding.
The Department contends that Mother does not have standing to complain about any
alleged error in the termination of D.E.’s parental rights because any such error does not affect
her rights. We agree. “Standing is implicit in the concept of subject-matter jurisdiction, which is
never presumed and cannot be waived.” In re D.W.G.K., 558 S.W.3d 671, 677 (Tex. App.—
Texarkana 2018, pet. denied) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444–45 (Tex. 1993)). “A party ‘may not complain of errors that do not injuriously affect it or
that merely affect the rights of others.’” Id. at 678 (quoting Torrington Co. v. Stutzman, 46
S.W.3d 829, 843 (Tex. 2000)). The termination of D.E.’s parental rights did not injuriously
affect Mother’s rights; it only affected the rights of D.E. and I.D. See D.F. v. Tex. Dep’t of
Family & Protective Servs., No. 03-16-00883-CV, 2017 WL 1315441, at *3 (Tex. App.—Austin
Apr. 4, 2017, no pet.) (mem. op.) (finding mother did not have standing to challenge termination
of father’s parental rights); In re D.C., 128 S.W.3d 707, 713 (Tex. App.—Fort Worth 2004, no
pet.) (finding mother did not have standing to challenge termination of unknown father’s parental
rights).
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In its final order, the trial court gave the Youngs, as sole managing conservators, the
exclusive right to represent I.D. in legal actions and to make other legal decisions for the child.
See TEX. FAM. CODE ANN. § 153.371(8) (Supp.) (listing rights of nonparent appointed as sole
managing conservator to include “right to represent the child in legal action and to make other
decisions of substantial legal significance concerning the child”). Neither D.E. nor the Youngs,
on behalf of I.D., have appealed the trial court’s judgment. Nor has Mother explained how the
termination of D.E.’s rights affected or injured her own.
Because Mother lacks standing to challenge the termination of D.E.’s parental rights, we
overrule this issue.
III. Disposition
For the reasons stated, we affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: October 5, 2022
Date Decided: October 6, 2022
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