in the Interest E.J.C. and R.A.C., the Children ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-295-CV
IN THE INTEREST OF E.J.C. AND R.A.C.,
THE CHILDREN
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Andrew H. appeals from the trial court’s order terminating the parent-child
relationship between him and two of his children, Amy and Bobby (both
pseudonyms). In twenty-one issues, Andrew challenges the legal and factual
sufficiency of the evidence to support termination under family code section
161.001(1)(D), (E), (F), and (N) and the jury’s best-interest findings and argues
1
… See Tex. R. App. P. 47.4.
that delayed service of process deprived him of his right to due process. We
affirm.
Background
Amy and Bobby are the biological children of Andrew H. and Yolanda C.
Amy and Bobby were born on January 3, 2001, and June 10, 2003,
respectively. At the time of the termination proceedings, Amy was seven and
Bobby was five. Although the trial court also terminated Yolanda’s parental
rights, this appeal concerns only Andrew’s relationships with Amy and Bobby.
Andrew testified that Amy and Bobby were born when he and Yolanda
lived together. He said that during his relationship with Yolanda, he abused
alcohol, which “interfered with everything” and caused him to suffer
“blackouts.” He testified that he snorted and injected cocaine several times but
stopped because he “didn’t like it.” Andrew admitted that he and Yolanda both
used cocaine while caring for Amy. He also said that he occasionally let the
children stay with their maternal grandmother, Virginia S., whom he knew to
be a cocaine user.
Yolanda testified that while she and Andrew lived together, they both
used cocaine “almost every day.” Yolanda testified that Andrew used cocaine
in Amy’s presence, and she recounted an incident when Andrew once left a
needle on the bathroom counter when Amy was two years old. She added that
2
Andrew drove under the influence of cocaine with both children in the vehicle.
She also stated that Andrew drank alcohol daily throughout the relationship,
often to the point of passing out.
Yolanda testified that Andrew physically abused her by punching,
slapping, and kicking her “almost every day” in the children’s presence. She
stated that Andrew hit her multiple times during both pregnancies and once
threw a night stand at her while she was pregnant with Bobby. Andrew denied
having abused Yolanda, although he admitted that he raised his voice and
“probably did” push her.
Yolanda also testified that Andrew was emotionally abusive and told her
she “was no good,” “was [a] no good mother,” and “couldn’t make it without
him” in front of Amy on several occasions, causing Amy to cry. Yolanda
claimed that Andrew often yelled at Amy as well.
Andrew testified that Yolanda moved out in April 2004 and took the
children with her. He attributed the breakup to Yolanda’s turning twenty-one,
at which point she began frequenting clubs and neglecting the children.
Yolanda testified that after she moved out, Andrew threatened to kill her and
the children; as a result, she obtained a protective order against Andrew, and
he pleaded guilty to making a terroristic threat. Andrew said that after Yolanda
left, he saw her once in December 2004 but never spoke with her again,
3
though he said he tried to contact her every three months. He had no contact
with the children after Yolanda moved out and said, “I just leave [the] kids with
[Yolanda’s mother].” Andrew said that Yolanda eventually moved without
telling him where she was going, so he lost contact with the children.
In January 2007, the Texas Department of Family and Protective Services
(“the Department”) removed the children and their younger half-sister, Carrie
(a psuedonym), from Yolanda’s home in response to an allegation that Yolanda
and Carrie’s father, Daniel H., were neglecting and abusing the children. The
Department instituted termination proceedings in January 2007, seeking to
terminate Andrew’s, Yolanda’s, and Daniel’s parental rights. The Department
did not serve Andrew with process until December 2007; we will describe the
circumstances surrounding the delayed service later in this opinion.
Andrew testified that he first learned when he was served with process
that the Department had removed the children and placed them in Virginia’s
(Yolanda’s mother’s) home. He said he went to Virginia’s house to see the
children immediately after being served. The Department later removed the
children from Virginia’s home, and Andrew said that he saw the children
“maybe” five times during the pendency of the suit. Department caseworker
Patricia Mosqueda testified that Andrew attended only three of the nine
Department-scheduled visitations with his children. Andrew said that he missed
4
scheduled visitations because of his work schedule. He said his inability to see
the children made them “sad; they missed me.”
Andrew claimed that he now abstains from alcohol, although he wrote on
an Internet web page that he is a “social drinker.” 2 Andrew sought to have the
children placed in the home he shared with his current wife, Sandra, and her
two children, but he admitted having told a Department employee that Sandra
was unwilling to share in the responsibility of caring or providing for Amy and
Bobby. Andrew testified that his marriage to Sandra was solid, but he also
admitted that he had posted personal advertisements on several web sites,
seeking sexual encounters with other women.3
Andrew’s adult daughter from a prior marriage, Anna H., testified that
Andrew is currently supportive of her son, who calls him “Grandpa.” Anna
testified that if Andrew’s rights were not terminated, she would assist in raising
Amy and Bobby. Anna denied ever having seen Andrew hit Yolanda or any
other domestic violence. But she said that Andrew probably abused
prescription medications before the children were born.
2
… The trial court admitted this evidence only for the purposes of
impeaching Andrew’s testimony regarding his alcohol use.
3
… The trial court admitted this evidence for the limited purpose of
impeaching Andrew’s testimony regarding his marital relationship.
5
Caseworker Mosqueda testified that the Department provided a service
plan with a goal of family reunification—which required a drug and alcohol
assessment, counseling, and parenting classes—and arranged visits between
Andrew and the children. She stated that Andrew initially refused to submit to
drug testing, though later drug tests came back negative. Mosqueda said that
the Department planned on Amy and Bobby remaining with their half-sister,
Carrie.
Christine Snow, the children’s CASA caseworker, testified that during a
telephone conversation with Andrew, his speech was noticeably slurred, despite
his claiming he was alcohol-free. Snow testified that the children never
mentioned their father prior to his visitations, and she advised that terminating
Andrew’s parental rights would serve the children’s best interests.
James Latham, a licensed psychotherapist, testified that he oversaw
Andrew’s counseling at the Department’s request and met with Andrew seven
times. Regarding Andrew’s Internet sex ads, Latham stated that generally,
such postings are often “fantasy”; however, after reading the postings, he
responded that they “certainly would raise some concerns” about Andrew’s
relationship with Sandra.
Latham described Andrew’s cocaine and alcohol abuse as “modest” and
“under control,” respectively, and said that Andrew still “drinks socially.”
6
Latham stated that although Andrew gets “a little hot headed at times,” he was
not abusing his children. But he said that a history of physical abuse “would
not surprise [him]” and that he knew Andrew had battered Yolanda in Amy’s
presence.
Latham stated that, at present, Andrew was “adequately” parenting
Sandra’s children, who lived with him and Sandra. Latham also said that, as
a counselor, he believed Andrew could provide a safe environment and could
parent Amy and Bobby without problems.
Beverly Bailey, an employee with the district attorney’s office and a
licensed professional counselor, testified that although “there are different
schools of thought” on the issue, children under the age of three who witness
domestic abuse may develop “bonding issues, attachment issues, [and] trust
issues.” Bailey also testified that a parent’s absence “would in fact impact that
relationship, because they wouldn’t have that closeness” and that “there is a
lot that is lost” when a parent is absent. She testified that home instability can
create future problems, such as “not eating, not sleeping, crying,” and
“psychosomatic symptoms” in preschool children.
7
Andrew’s case was tried to a jury in late June 2008.4 The jury found that
Andrew had violated paragraphs (D), (E), (F), and (N) of family code section
161.001(1) and that termination was in Amy’s and Bobby’s best interest. See
Tex. Fam. Code Ann. § 161.001(1)(D), (E), (F), (N), (2) (Vernon 2008). The
trial court terminated Andrew’s parental rights and appointed the Department
as their permanent managing conservator. Andrew filed this appeal.
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). In a termination case, the State 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) (Vernon
Supp. 2008); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly
scrutinize termination proceedings and strictly construe involuntary termination
4
… The trial court had previously terminated Yolanda’s parental rights in
November 2007 and Daniel’s parental rights in January 2008.
8
statutes in 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.).
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 subdivision (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).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 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 (Vernon 2002). 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).
9
When 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 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 verdict.
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, 574. 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
10
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 the parent violated the relevant conduct provision of
section 161.001(1) and that the termination of the parent-child relationship
would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of 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.
Discussion
1. Grounds for termination
In his first eight issues, Andrew argues that the evidence is legally and
factually insufficient to support the jury’s endangering-environment and
endangering-conduct findings under sections 161.001(1)(D) and (E). See Tex.
Fam. Code Ann. § 161.001(1)(D), (E).
Endangerment means to expose to loss or injury, to jeopardize. Boyd,
727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort
Worth 2003, no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
To prove endangerment under subsection (D), the Department had to prove that
11
Andrew (1) knowingly (2) placed or allowed his children to remain (3) in
conditions or surroundings that endangered their physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(1)(D). Under subsection (E),
the relevant inquiry is whether evidence exists that the endangerment of the
children’s physical well-being was the direct result of Andrew’s conduct,
including acts, omissions, or failures to act. See Tex. Fam. Code Ann.
§ 161.001(1)(E); J.T.G., 121 S.W.3d at 125. Additionally, termination under
subsection (E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E). However, it is not necessary that the parent’s conduct be
directed at the children or that the children actually suffer injury. Boyd, 727
S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the
children’s well-being may be inferred from parental misconduct standing alone.
Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort
Worth 2004, pet. denied). To determine whether termination is necessary,
courts may look to parental conduct occurring both before and after the
children’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth
2001, no pet.).
12
Stability and permanence are paramount in the upbringing of children.
See In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort W orth 2002, pet.
denied). A factfinder may infer from past conduct endangering the well-being
of the children that similar conduct will recur if the children are returned to the
parent. See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet.
denied), disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H.,
89 S.W.3d at 17.
In this case, Yolanda testified that Andrew regularly abused her when he
lived with her, including hitting her with his closed fist, kicking her, slapping
her, and throwing a night stand at her. She said that he abused her when she
was pregnant with Bobby and sometimes in Amy’s and Bobby’s presence. She
also said that he verbally abused her in front of the children. When Yolanda left
Andrew in 2004, he threatened to kill her and the children; Andrew later
pleaded guilty to making a terroristic threat.
Yolanda testified that Andrew drank heavily and daily; Andrew testified
that he drank to the point of blacking out. Andrew gave conflicting testimony
about when he had last had a drink; at one point, he testified that he had not
had a drink in a year and a half and that he did not drink at all anymore, but he
also testified that his last drink had been on the previous New Year’s Eve, i.e.,
seven months before trial. His psychotherapist testified that Andrew still drank
13
socially, and evidence admitted for impeachment showed that Andrew had
written in Internet chat rooms that he still drank occasionally and socially. A
Department caseworker testified that Andrew’s speech sounded slurred when
she called him two months before trial.
Yolanda also testified that Andrew had snorted cocaine; that after Amy’s
birth he began to inject cocaine; that he used cocaine when Amy and Bobby
were around; and that he left a needle on the bathroom counter when Amy was
two years old. Andrew admitted that he had used cocaine after Amy was born,
about five years before trial, but he said that he had only used cocaine three or
four times and that he did not like it.
The record also shows that Andrew knew the children were in a
dangerous environment after Yolanda left him. Andrew told a caseworker that
his relationship with Yolanda ended because she was “just crazy” and drank
and partied too much, but he made no effort to rescue the children from her
care or obtain custody of them after Yolanda left. He also testified that he had
left the children in the care of Yolanda’s mother despite his concern that she
was buying and using cocaine in her home.
Andrew argues that Yolanda’s testimony about physical and verbal abuse
and drug and alcohol use is not legally or factually sufficient to support the
jury’s endangerment findings because she was the only witness to so testify.
14
But the trier of fact may believe all, part, or none of the testimony of any
witness. In re T.N., 180 S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no
pet.). The jury could, and evidently did, believe Yolanda’s testimony and
resolve the conflicts between her testimony and Andrew’s against him. See id.;
see also In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet.
denied) (stating that the factfinder’s function “is to judge the credibility of the
witnesses, assign the weight to be given their testimony, and resolve any
conflicts or inconsistencies in the testimony”).
Andrew also contends that evidence of events that transpired when he
lived with Yolanda is too remote to prove endangerment, citing Wetzel v.
Wetzel, 715 S.W.2d 387, 390–91 (Tex. App.—Dallas 1986, no pet.). In
Wetzel, the Dallas court held that evidence showing that a mother had abused
her children four years before trial was insufficient to prove endangerment at
the time of trial because the record showed that the mother was suffering from
mental disorders at the time of the abuse and that her mental disorders had
since been cured and there was no evidence that she abused the children at the
time of trial or might do so in the future. Id. Our case is distinguishable on
several grounds. First, there is no evidence that Andrew suffered from a mental
condition that caused him to abuse Yolanda and from which he could be cured.
There was evidence that Appellant had used drugs in the past and was addicted
15
to alcohol in the past, a condition from which a person can “recover,” but there
was also evidence that Andrew still drank alcohol, and the jury could have
believed that he was not “in recovery.” Thus, unlike the mother in Wetzel, we
cannot say that all of Andrew’s problems existed in the remote past. Further,
even if the evidence showed that Andrew had recovered from his drug use and
alcohol addiction, nothing in the record ties his drug and alcohol use to his
physically abusing Yolanda, apart from Andrew’s testimony that he was
frequently inebriated during his relationship with Yolanda. Second, the fact that
Andrew’s abusing Yolanda stopped four years before trial is not because he
was “cured,” like the mother in Wetzel, but because Yolanda left him and he
no longer had access to her or to the children. Under the circumstances of this
case, the jury was free to infer from Andrew’s past conduct that similar
conduct would recur if the children were returned to him. See In re D.L.N., 958
S.W.2d at 941.
Viewing the evidence in the light most favorable to the jury’s verdict, we
hold that the jury could reasonably have formed a firm belief or conviction that
Andrew placed or knowingly allowed the children to remain in endangering
conditions or surroundings and engaged in endangering conduct or knowingly
left the children with persons who engaged in endangering conduct. See Tex.
Fam. Code Ann. §161.001(1)(D), (E). Thus, the evidence was legally sufficient
16
to support the jury’s endangering-conditions and endangering-conduct findings.
See In re J.P.B., 180 S.W.3d at 573. Viewing the entire record, we hold that
a factfinder could reasonably form a firm conviction or belief that Andrew
violated paragraphs (D) and (E); thus, the evidence is also factually sufficient.
See In re C.H., 89 S.W.3d at 28. W e overrule Andrew’s first through eighth
issues.
Because a finding that a parent violated a single provision of section
161.001(1), when coupled with a finding that termination is in the children’s
best interest, is sufficient to support termination, we need not consider
Andrew’s ninth through sixteenth issues, in which he complains that the
evidence is insufficient to support the other grounds for termination found by
the jury. See Tex. R. App. P. 47.1
2. Best Interest
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt
and permanent placement of the child in a safe environment is also presumed
to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon
2002). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include
17
(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 these individuals to
promote the best interest of the child;
(6) the plans for the child by these individuals or by the
agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
18
The children did not testify, and their desires are not otherwise expressed
in the record, but Latham testified that the children developed a strong
emotional bond with Andrew, even though Andrew said he had seen them just
five times during the pendency of the case. Mosqueda testified that they were
also bonded to and protective of their half-sibling, Carrie. Andrew testified that
he wanted to keep the children in contact with Carrie, but he had no plan for
doing so.
Concerning emotional and physical danger to the children now and in the
future, Yolanda’s testimony that Andrew physically abused her and abused
drugs and alcohol in the past was some evidence from which a factfinder could
infer that a danger for such abuse existed in the future. Andrew offered no
excuse for his behavior when he lived with Yolanda. Bailey testified that
introducing the children to an unfamiliar person would have a “high impact” on
the children and that an unstable home can create future emotional and
behavioral problems.
Regarding Andrew’s parenting abilities, his plans for the children, and the
stability of his home, Andrew testified about his prior failed marriages and
relationships and admitted that he was not very involved in his six children’s
lives at times. He told the jury about his plans for the children’s living
arrangements in the home he shared with his current wife, Sandra, and said
19
that Sandra’s involvement with the children was an important part of his plan,
but he also admitted that he had told a Department employee that Sandra
would not share in the responsibility of caring for the children. Further, Sandra
did not attend visitations with Andrew, and the Department’s home study
suggests she was unenthusiastic about having Andrew’s children in her home,
though Andrew said that she had changed her mind in the five weeks before
trial. Andrew’s adult daughter, Anna, indicated that his marriage to Sandra was
a stable relationship, but the jury also heard testimony about Andrew’s trolling
the Internet for sex partners, including one online personal ad in which Andrew
wrote, “[I] am in a f***** up relationship with a woman who doesn’t love me,
oh well . . .” on May 26, 2008—about a month before trial.5 Andrew also
admitted that in February 2008, he emailed Mosqueda and told her that he
wanted to give up his parental rights and never hear from the Department
again; he explained at trial that he was frustrated because Mosqueda was
meddling in his life too much. On the other hand, by the time of trial, Andrew
had completed a drug and alcohol assessment, a psychological examination,
5
… The trial court admitted the personal ad in question, as well as similar
ads from other Internet dating sites, for impeachment and instructed the jury
that it could consider the ad only if the jury found that the ad did impeach
Andrew’s testimony regarding his marital relationship.
20
and a parenting class and had participated in counseling, which tends to show
that he was cooperating with the Department and working his service plan.
Mosqueda testified that the Department’s plan for the children was
adoption and that Amy and Bobby were in an “adoptive placement” foster
home with their half-sister, Carrie. The record reflects no other evidence about
the Department’s plan or the “adoptive placement” foster family with whom the
children were living.
Viewing the evidence in the light most favorable to the jury’s verdict, we
hold that the jury could reasonably form a firm belief or conviction that
termination of Andrew’s parental rights was in Amy’s and Bobby’s best
interest; thus, the evidence is legally sufficient to support the jury’s best-
interest finding. See Tex. Fam. Code Ann. §161.001(2); In re J.P.B., 180
S.W.3d at 573. Viewing the entire record, we hold that a factfinder could
reasonably form a firm conviction or belief that termination was in the children’s
best interest; thus, the evidence is also factually sufficient. See In re C.H., 89
S.W.3d at 28. We overrule Andrew’s seventeenth through twentieth issues.
3. Delayed service of process
In his twenty-first issue, Andrew argues that the Department’s failure to
serve him with process until eleven months after the Department filed its
21
termination petition and eight months before trial violated his right to due
process.
A parent is entitled to service of citation in a suit affecting the parent-
child relationship. Tex. Fam. Code Ann. § 102.009(7) (Vernon 2008). The
Department must exercise due diligence to locate a parent:
(b) If a parent of the child has not been personally served in a suit
in which the Department of Family and Protective Services seeks
termination, the department must make a diligent effort to locate
that parent.
....
(e) The department shall be required to provide evidence to the
court to show what actions were taken by the department in
making a diligent effort to locate the missing parent and relative of
the missing parent.
Id. § 161.107 (Vernon 2008). At the initial status hearing, the trial court must
make findings as to whether the Department has exercised due diligence to
locate all persons entitled to service. Id. § 263.202(a)(1) (Vernon 2008). And
the Department must describe its efforts to locate and serve parents in a report
filed with the trial court before each permanency hearing except the first. Id.
§ 263.303(b)(ii) (Vernon 2008).
The record shows that the Department filed its petition on January 11,
2007, seeking to terminate the parental rights of Andrew, Yolanda, and Daniel.
Yolanda testified that when the Department removed the children from her
22
home, she gave the Department investigator Andrew’s name, but she did not
know where he was living.
In its March 9, 2007 status hearing order, the trial court noted that
Andrew had not been served and did not appear. In its June 13, 2007
permanency report, the Department told the trial court that all persons entitled
to service had been served. The trial court’s June 21 permanency hearing order
appears to acknowledge that Andrew had not been served, but it merely states
that “[t]he Court has evaluated . . . the department’s efforts to obtain the
assistance of each parent to provide information necessary to locate an absent
parent.”
Department liaison officer Albert Hiller testified that when he was
preparing for an October 5 permanency hearing, he could not find any evidence
that Andrew had been served. Hiller said he found Andrew’s address using an
Internet search engine. At the October 5 hearing, the trial court found that
Andrew had not been served, but it also found that the Department had
exercised due diligence in attempting to locate him.
Hiller obtained a civil citation and sent it and the suit papers to the Bexar
County sheriff’s office. In November 2007, the sheriff’s office reported that
it had made three unsuccessful attempts to serve Andrew. It eventually served
23
Andrew on December 6, 2007. Among the papers the sheriff served on
Andrew was a notice of a January 3, 2008 hearing.
Andrew did not file a formal answer or appear for the January 3 hearing,
but he did email the court clerk, and the trial court found that the email was
sufficient to be an answer. At the hearing, the trial court terminated the parent-
child relationship between Carrie and her father (who was served and did not
file an answer), but it deferred Andrew’s case and extended the statutory
dismissal deadline until July 11, 2008. See Tex. Fam. Code Ann. § 263.401(b)
(Vernon 2008). The Department set up a service plan for Andrew, and the trial
court eventually appointed counsel to represent Andrew. The trial in Andrew’s
case began on June 30, 2008, about two weeks before the extended dismissal
deadline.
Andrew concedes that the family code does not impose a deadline for
service of process other than section 263.401’s one-year dismissal deadline.
See id. § 263.401(a). But he argues that the delayed service in this case
deprived him of his right to due process under Texas and federal law by denying
him a meaningful opportunity and right to reunite with his children. Andrew did
not present his due process complaint to the trial court, but he argues that the
delayed service rises to the level of public-interest-based fundamental error that
he can raise for the first time on appeal.
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To preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.
103(a)(1). If a party fails to do this, error is not preserved, and the complaint
is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
But error is not waived if it falls within the narrow category of
“fundamental error,” which requires no trial court predicate for appellate review.
In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003), cert. denied, 541 U.S. 945
(2004). Fundamental error exists in those instances in which error directly and
adversely affects the interest of the public generally, as that interest is declared
by the statutes or Constitution of our State, or instances in which the record
affirmatively and conclusively shows that the court rendering the judgment was
without jurisdiction of the subject matter. Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 577 (Tex. 2006).
In In re BLD, the supreme court refused to extend the fundamental error
doctrine to parental-rights termination cases, noting that such cases—unlike
juvenile proceedings, to which the fundamental error doctrine does apply—are
not quasi-criminal in nature. 113 S.W.3d at 352 (declining to review
unassigned jury charge error in termination case as fundamental error). The
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court further held that an alleged due process violation does not rise to the level
of fundamental error in a termination case. Id. at 353–54.
The supreme court does, however, recognize fundamental error in the
limited situations “in which error directly and adversely affects the interest of
the public generally, as that interest is declared by the statutes or Constitution
of our State.” See Mack Trucks, Inc., 206 S.W.3d at 577. But when an
alleged error affects the rights of only particular litigants, as in this case, it does
not adversely affect the interest of the public generally and does not rise to the
level of fundamental error. See Newman v. King, 433 S.W.2d 420, 422 (Tex.
1968) (holding that error affecting a child plaintiff’s rights affects the rights of
only the particular minor and the particular litigants, does not adversely affect
the interest of the public generally, and does not constitute fundamental error
warranting reversal in the absence of objection); see also Worden v. Worden,
148 Tex. 356, 224 S.W.2d 187, 190–91 (1949) (holding no violation of
fundamental public policy in a court’s judgment of child custody).
We therefore hold that Andrew’s delayed-service complaint does not rise
to the level of fundamental error. Because he did not raise his complaint in the
trial court, he waived it. See Tex. R. App. P. 33.1(a); Bushell, 803 S.W.2d at
712. We overrule Andrew’s twenty-first issue.
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Conclusion
Having overruled Andrew’s first through eighth and seventeenth through
twenty-first issues, and not reaching his ninth through sixteenth issues, we
affirm the trial court’s termination order.
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: April 2, 2009
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