in the Interest of S.L., J.L., and L.L., Children ( 2022 )

AFFIRMED and Opinion Filed March 28, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00874-CV
IN THE INTEREST OF S.L., J.L., AND L.L., CHILDREN
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-53803-2020
MEMORANDUM OPINION PER CURIAM
Before Justices Schenck, Smith, and Garcia
Father appeals the trial court’s final order terminating his parental rights to
S.L. and challenges several other temporary orders and rulings throughout the
lengthy proceeding.1 He raises nine issues on appeal: (1) whether the trial court
erred by conferring sole managing conservator status upon an individual without
standing; (2) whether the trial court erred by refusing to allow a contested hearing
on a recusal motion; (3) whether the trial judge’s assignment complied with Texas
Government Code section 74.055(b); (4) whether the trial court denied Father his
constitutional right to due process by refusing to allow him to testify in his pro se
1
The order also terminated Father’s rights to J.L. and L.L. Father’s brief only challenges the
termination of his rights to S.L. We, therefore, limit our discussion to the termination of Father’s rights to
S.L. See TEX. R. APP. P. 47.1. We affirm the termination of Father’s parental rights to J.L. and L.L.
capacity; (5) whether the trial court erred when it conditioned Father’s contact with
the children on the payment of $15,000; (6) whether the appointed guardian ad litem
acted outside her statutory role; (7) whether the trial court denied Father his
constitutional right to due process by refusing to allow him to testify in his pro se
capacity;2 (8) whether the trial court violated Father’s “fundamental rights to family
integrity” guaranteed by the Constitution; and (9) whether the trial court violated his
due process rights under Texas Family Code sections 161.001(b)(1)(A)–(U), (b)(2).
We overrule Father’s issues and affirm the trial court’s termination of his parental
rights to S.L.
Briefs and Evidence Filed Under Seal
Before considering Father’s issues, we must address a preliminary matter. In
both this Court and the trial court, the record is filed under seal. The parties’ briefs
are likewise filed under seal.
This raises a significant dilemma on appeal because our opinions are a matter
of public record, even when designated as memorandum opinions pursuant to rule
of appellate procedure 47.4. See TEX. GOV’T CODE ANN. § 552.022(a)(12) (“final
opinions, including concurring and dissenting opinions, and orders issued in the
adjudication of cases” are “public information”); TEX. R. CIV. P. 76a.1 (“No court
order or opinion issued in the adjudication of a case may be sealed.”). Facts that are
2
Father has not alleged a separate due process violation from the one raised in issue four. His seventh
issue is repetitive and therefore overruled.
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necessary for us to dispose of the issues presented by this appeal are included in the
sealed record.
We have made every effort to preserve the confidentiality of the information
sealed. But we cannot decide this appeal without mention of some key facts. See
MasterGuard L.P. v. Eco Techs. Int’l LLC, 441 S.W.3d 367, 371 (Tex. App.—Dallas
2013, no pet.); R.V.K. v. L.L.K., 103 S.W.3d 612, 614–15 (Tex. App.—San Antonio
2003, no pet.) (court “attempted to strike a fair balance” between the parties’ interest
in keeping the sealed portion of record confidential with interest of court and public
in fulfilling responsibilities as court of record). We have, however, avoided specific
details as much as possible and have made some references deliberately vague to
avoid disclosure of sensitive details.
Procedural Background
Mother and Father divorced in July 2015. The court appointed Mother sole
managing conservator of their three children, S.L., J.L., and L.L. Father was
appointed possessory conservator. Mother and Father seemingly got along and
worked together to abide by the custody arrangement for several years.
In July 2020, Father filed a petition to modify the parent-child relationship.
He attached an affidavit from his wife (the children’s stepmother), in which she
alleged Mother was neglecting S.L., and S.L. was the victim of potential sexual
abuse. In August 2020, Mother filed her counter-petition to modify the parent-child
relationship.
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Over the next several months, Mother and Father filed various emergency
motions and requests for temporary orders. Father and his family were unhappy
with several of the rulings and believed the “system” was not taking into account
S.L.’s best interest. Father began posting information about the case on social
media, which at one time resulted in over three hundred calls to CPS from strangers
concerning S.L.’s well-being. He also posted the personal information of Mother,
the judge, and the attorneys involved in the case encouraging justice for S.L. The
trial court eventually signed a “gag” order preventing Father, his attorneys, and his
agents from posting and/or publicizing certain information about the case.
In April 2021, Mother filed her second amended counterpetition to modify the
parent-child relationship, in which she requested that the court terminate Father’s
parental rights to the children. She alleged Father (a) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the physical or emotional well-being of the children; (b) engaged in
conduct or knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children; (c) had been the
major cause of the failure of the children to be enrolled in school as required by the
Texas Education Code; and (d) had been the major cause of the children’s absence
from the home without the consent of the parents or guardian for a substantial length
of time or without the intent to return.
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The court held a termination hearing in September 2021. Father failed to
appear. According to S.L.’s grandfather, S.L. and Father were in Arizona three
weeks before the hearing, but he was not aware of their location at that time.
The trial court terminated Father’s parental rights to all three children and
appointed Mother managing conservator. This appeal followed.
Pro Se Status
Numerous attorneys represented Father in the trial court, but they
subsequently withdrew as his counsel. During the last several trial court hearings,
Father represented himself pro se. He continues to represent himself pro se on
appeal.
We will construe pro se pleadings and briefs liberally; however, we hold pro
se litigants to the same standards as licensed attorneys. See Wash. v. Bank of N.Y.,
362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.). Pro se litigants are not
exempt from the rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex.
2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (“There
cannot be two sets of procedural rules, one for litigants with counsel and the other
for litigants representing themselves.”). This includes error preservation rules.
Harrison v. Reiner, 607 S.W.3d 450, 464 (Tex. App.—Houston [14th Dist.] 2020,
pet. denied). To do otherwise would give a pro se litigant an unfair advantage over
a litigant who is represented by counsel. Moreno v. Silva, 316 S.W.3d 815, 817
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(Tex. App.—Dallas 2010, pet. denied). With these parameters in mind, we now
consider Father’s issues.
Appointment of Temporary Sole Managing Conservator
In his first issue, Father argues the trial court erred by appointing S.L.’s aunt
as temporary sole managing conservator in a July 2021 temporary order. He
contends the erroneous ruling allowed a party without standing to have exclusive
rights and duties associated with S.L.
First, Father did not comply with the briefing rules for appellate procedure.
See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the
record.”). Although he included this issue in his “Issue Presented” section, he only
provided two short paragraphs in his “Summary of the Argument.” He failed to
provide a clear and concise argument, with appropriate citations to the record, and
relevant authority in support of his argument. Id. When a party fails to adequately
brief a complaint, he waives the issue on appeal. See Hogan v. Aspire Fin., Inc., No.
05-19-00385-CV, 2021 WL 2176929, at *3 (Tex. App.—Dallas May 28, 2021, pet.
denied) (mem. op.). Because Father failed to comply with rule 38.1(i), we conclude
he waived review of his complaint.
Even if Father adequately briefed this issue, he would not succeed. It is well-
settled that a temporary order is superseded by entry of a final order of termination,
thereby rendering moot any complaint about the temporary order. See Interest of
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A.M.C., No. 05-19-00184-CV, 2020 WL 4726639, at *3 (Tex. App.—Dallas Aug.
14, 2020, no pet.) (mem. op.); see also In re A.K., 487 S.W.3d 679, 683 (Tex. App.—
San Antonio 2016, no pet.). The trial court’s termination order named Mother sole
managing conservator of the children thereby ending the aunt’s role as temporary
sole managing conservator. The final termination order mooted Father’s complaint.
We overrule Father’s first issue.
Motion to Recuse and Disqualify the Assigned Judge
In his second and third issues, Father argues the trial court erred by refusing
to conduct a hearing on his recusal motion and that the appointed judge’s assignment
failed to comply with Texas Government Code section 74.055(b).
Although Father listed his second issue in his “Issue Presented” section, he
failed to address and expand the argument in his argument section or anywhere else
in his brief. Because Father failed to comply with appellate rule 38.1 by providing
a clear and concise argument, with appropriate citations to the record and relevant
authority in support of his argument, he waived his complaint about any failure to
conduct a hearing on the recusal motion. See TEX. R. APP. P. 38.1(i); Hogan, 2021
WL 2176929, at *3.
To the extent Father challenges the assigned judge’s qualifications under
Texas Government Code section 74.005(b), he likewise waived his issue. The judge
was assigned the case on September 8, 2020, and Father filed his recusal motion on
May 27, 2021. Section 74.053(c) provides that “An objection under this section
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must be filed no later than the seventh day after the date the party receives actual
notice of the assignment or before the date of the first hearing or trial, including
pretrial hearings, commences, whichever date occurs earlier.” TEX. GOV’T CODE
ANN. § 74.053(c). Father waited over eight months to file his recusal motion
challenging the assigned judge’s qualifications. Father has not argued that he
received actual notice of the assignment outside of the seven-day deadline for
objecting. Moreover, Father filed the motion after the May 20, 2021 hearing, at
which point the assigned judge had presided over the case for months.
Because Father neither objected within seven days of receiving notice of the
assignment nor before the first hearing, he waived his complaint. See id.; see also
Ferguson v. Tex. Dep’t of Transp., No. 11-15-00110-CV, 2017 WL 3923510, at *8
(Tex. App.—Eastland Aug. 31, 2017, no pet.) (mem. op.) (“When a judge is
assigned, a party that objects to the assignment must file an objection or motion
within seven days of receiving notice of the assignment.”). We are mindful of
Father’s pro se status; however, pro se litigants are not exempt from the rules of
procedure, which includes error preservation rules. Harrison, 607 S.W.3d at 464.
Father’s third issue is overruled.
Refusal to Allow Father to Testify Pro se
In his fourth issue, Father argues the trial court refused to allow him to testify
while acting pro se, which denied him due process. Our review of the record does
not support Father’s assertion.
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While the trial court did not allow Father to testify during the May 2021
hearing, the court told Father he could make any arguments he wanted. Instead of
making any further arguments, he called Mother to the stand and questioned her.
Moreover, the May hearing was continued; therefore, the trial court still had
the opportunity to ameliorate any alleged due process violations when the hearing
recommenced. The record indicates the court did just that. When the hearing
resumed in July, Father testified extensively about the family’s past and current
situation without any restriction from the trial court. Before the hearing ended, the
trial court asked Father if he had “any desire to put any further testimony on the
record on any of the matters the Court has addressed this morning.” Father did not
add anything further.
Father has not argued that his due process rights were violated during any
other hearings. We note that when given the opportunity to appear and argue at the
most important hearing of the children’s lives, the termination hearing, Father failed
to attend. Instead, he absconded with S.L. to an undisclosed location.
Accordingly, Father failed to show the trial court violated his due process
rights. Father’s fourth issue is overruled.
Conditioning Contact With Children on Payment of $15,000
In his fifth issue, Father argues the trial court erred by including language in
a July 2021 temporary order that required him to pay $15,000 to have contact with
S.L. We disagree with Father’s interpretation of the temporary order.
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Father argues the requirement violates section 153.001(b) of the family code,
which states, “A court may not render an order that conditions the right of a
conservator to possession of or access to the child on the payment of child support.”
See TEX. FAM. CODE ANN. § 153.001(b). The temporary order did not condition
Father’s contact with S.L. on the payment of child support, but instead ordered
payment of the cost of her enrollment in a therapy program and conditioned his
contact based on payment of therapy. Regardless, even if we concluded the cost of
therapeutic services was part of Father’s child support, the temporary order was
superseded by entry of the final order of termination, thereby rendering moot any
complaint about the temporary order. See A.M.C., 2020 WL 4726639, at *3; see
also A.K., 487 S.W.3d at 683. We overrule Father’s fifth issue.
Appointment of Guardian Ad Litem
In his sixth issue, Father argues the guardian ad litem acted outside of her
statutory role. Again, the record belies Father’s argument.
Family Code section 107.002(c)(4) states that a guardian ad litem is entitled
to attend all legal proceedings in the case but may not call or question a witness or
otherwise provide legal services unless the guardian ad litem is a licensed attorney
who has been appointed in the dual role. TEX. FAM. CODE ANN. §107.002(c)(4).
Here, Father objected during the May 2021 hearing when the guardian ad litem
began asking questions.
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The court reviewed section 107.002(c)(4) and then asked the guardian ad litem
if she was a licensed attorney. The guardian ad litem answered affirmatively, and
the trial court overruled Father’s objection. Subsequently, during the July 2021
hearing, the guardian ad litem again confirmed her dual role with the trial court.
Under these facts, we conclude the trial court did not err. The court confirmed
the guardian ad litem was a licensed attorney prior to allowing her to ask questions
and participate in the hearings. Thus, the court adequately complied with section
107.002(c)(4). We overrule Father’s sixth issue.
Termination of Parental Rights
In his eighth and ninth issues, Father argues the trial court violated his
“fundamental rights to family integrity” as guaranteed by the Constitution and
violated his due process rights under family code section 161.001(b)(1)(A)-(U).
Father spends a great deal of time arguing about his “fundamental rights to
family integrity”; however, the case law he relies on is wholly inapplicable to the
facts of this case. For instance, he cites Troxel v. Granville, 530 U.S. 57 (2000), to
support his claim that “so long as a parent adequately cares for his or her children
(i.e., is fit) there will normally be no reason for the State to interject itself into the
private realm of the family . . . .” Troxel did not involve termination of parental
rights but rather visitation rights of grandparents, an issue not relevant to this case.
Father also argues that a family has the right to make “private decisions about
what is best for the family unit, free from unwarranted state intervention.” Father’s
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arguments and cited authority could be relevant if the State had initiated the
termination; however, Mother filed the petition for termination. Thus, there was no
intervention by the State into any of his “fundamental rights to family integrity.”
Father’s eighth issue is overruled.
We liberally construe Father’s ninth issue as challenging the legal sufficiency
of the evidence supporting termination under section 161.001(b)(1)(D) and (E).3
Father has not challenged the trial court’s finding that termination was in the best
interest of S.L.; therefore, we limit our analysis to the statutory termination grounds.
See TEX. R. APP. P. 47.1.
While parental rights are of a 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 the emotional and physical interests
of the child not be sacrificed merely to preserve that right. Interest of A.C., 560
S.W.3d 624, 630 (Tex. 2018); Interest of L.J.H., No. 05-21-00183-CV, 2021 WL
4260769, at *9 (Tex. App.—Dallas Sept. 20, 2021, no pet.) (mem. op.). Because the
primary focus of a termination suit is protection of the child’s best interests, a parent
may forfeit parental rights by his acts or omissions. In re A.V., 113 S.W.3d 355, 361
(Tex. 2003).
3
Father’s brief does not mention factual sufficiency in any context.
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The Texas Family Code balances the convergent and divergent interests of
parent and child by adopting a two-part standard that permits termination of the
parent–child relationship only if (1) the parent’s acts or omissions satisfy at least one
statutory ground for termination and (2) termination is in the child’s best interest.
See TEX. FAM. CODE ANN. § 161.001(b)(1), (2); A.C., 560 S.W.3d at 630. Both
elements require “clear and convincing evidence.” A.C., 560 S.W.3d at 630; L.J.H.,
2021 WL 4260769, at *9. “Clear and convincing evidence” means the measure or
degree of proof that 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. TEX. FAM.
CODE ANN. § 101.007.
The heightened proof standard in termination cases alters the appellate
standard of legal sufficiency review in favor of a standard that honors not only the
elevated burden of proof, but also the deference an appellate court must have for the
factfinder’s role. A.C., 560 S.W.3d at 630. In conducting a legal-sufficiency review,
the reviewing court cannot ignore undisputed evidence contrary to the finding but
must otherwise assume the factfinder resolved disputed facts in favor of the finding.
Id. at 630–31; J.F.C., 96 S.W.3d at 266. Evidence is legally sufficient if, viewing
all the evidence in the light most favorable to the fact-finding and considering
undisputed contrary evidence, a reasonable factfinder could form a firm belief or
conviction that the finding was true. A.C., 560 S.W.3d at 631.
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The trial court found by clear and convincing evidence that Father had
a. knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endanger the physical or emotional
well-being of the children;
b. engaged in conduct or knowingly placed the children with persons
who engaged in conduct that endangers the physical or emotional well-
being of the children;
c. been the major cause of the failure of the children to be enrolled in
school as required by the Texas Education Code; and
d. been the major cause of the children’s absence from the home
without the consent of the parents or guardian for a substantial length
of time or without the intent to return.
Father has not challenged (c) and (d) above. Generally, his failure to
challenge these two findings would support affirmance of the termination order. See
M.C. v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305, 309 (Tex. App.—
El Paso 2009, pet. denied) (trial court need only find one statutory ground to support
termination). However, because findings to terminate parental rights under
subsections 161.001(b)(1)(D) or (E) (the trial court’s (a) and (b) findings above) can
affect parental rights to other children through subsection 161.001(b)(1)(M), due
process requires courts of appeal to review and detail its analysis as to termination
of parental rights under subsection (D) or (E) when challenged on appeal, even if the
termination can be upheld on other grounds. Interest of Z.M.M., 577 S.W.3d 541,
542–43 (Tex. 2019) (per curiam); Interest of L.J.H., 2021 WL 4260769, at *9.
Father first asserts the trial court erred because it “likely . . . applied the usual
preponderance of the evidence standard of proof.” Father’s argument is belied by
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the very language of the order, which states that the court made its findings “by clear
and convincing evidence.” Thus, this argument is without merit.
Father next urges the Court to consider the subsection (D) and (E) termination
findings because they impact the future termination rights of his other children.4 See
TEX. FAM. CODE ANN. § 161.001(b)(1)(M). He cites relevant case law but
completely fails to provide any analysis explaining how or why the evidence is
legally insufficient to support the termination findings by clear and convincing
evidence. See id. § 161.001(b)(1)(D), (E).
Despite the shortcomings in Father’s analysis, we will consider whether the
evidence is legally sufficient to support termination of his parental rights to S.L.
Again, we are mindful that the record in this case is sealed. We will do our best to
protect the parties involved while detailing some evidence supporting our
conclusion.
Psychological evaluations indicated Father met the diagnostic criteria for
Bipolar I Disorder, recurrent, with his symptoms manifesting episodically every few
years with significant consequences. For example, in 2013, prior to the divorce,
Father believed he was Jesus and the Archangel Michael. He left the family for
weeks at a time and during one of his absences, he spent time with the Hopi Indians.
4
Father has a child by another woman not subject to this proceeding.
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After the divorce, Father disappeared for months and did not see or speak to
the children. He sent Mother periodic text messages alleging the world would end
soon, and he had a special role in the revolution. His text messages indicated his
mental state was unstable and unpredictable. Father, however, described his
behavior as seeking a deeper meaning in life. While he realized he was “eccentric,”
he did not think he was “crazy.”
Father’s psychological evaluations further indicated he lacked insight and
understanding into his behavior, and he denied his minor shortcomings. He showed
limited interest in taking feedback and following recommendations of others.
Father was described as charismatic, and people tended to follow him. Father
appeared to use this to his advantage and ultimately created an environment where
S.L. was completely dependent on him, did not trust others, and believed things
Father told her that were blatant lies. Evidence indicates this contributed to the
alienation between S.L. and Mother. Father’s psychological evaluation noted such
actions were consistent with Narcissistic Personality Disorder because he had gone
to great lengths to obtain his desired outcome and, in many cases, he took dramatic
steps to discredit those whose thoughts did not align with his. Father indicated that
despite being told he needed therapy, he would not follow doctors’ recommendations
if he did not agree with them.
Reports from those involved in the case expressed tremendous concern about
S.L.’s emotional well-being the longer she remained with Father. Despite the “gag”
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order, Father continued to post information on social media further exposing S.L.’s
privacy. This included S.L.’s personal medical history, along with allegations of
sexual abuse. To be clear, while the case involved allegations of sexual abuse, CPS
was unable to substantiate any of the allegations after investigating.
Father subjected S.L. to more than fourteen exams, many of which were
invasive, despite no substantiation of the sexual abuse allegations. Instead, there
were indications S.L. was being coached or manipulated. Counselors involved
believed Father had caused long-term psychological damage to S.L. by creating an
image in her mind as a victim of sexual abuse and promoting that image on the
internet. During one interview, Father described S.L. as “iconic for the movement
to protect children.”
Father intentionally alienated and isolated S.L. from others. He encouraged
S.L. to only trust him and went so far as to tell her to record conversations between
her and the guardian ad litem, which made it difficult for the guardian ad litem to
build rapport and do her job. The many counselors and therapists involved, along
with the guardian ad litem, universally believed that if Father remained in S.L.’s life,
he would threaten any chance she had of receiving the psychological help she
needed.
In addition, Father was unemployed, and his source of income appeared to
come from a GoFundMe or PayPal account that strangers contributed to. The
guardian ad litem report noted that on the several occasions she visited S.L.
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unannounced, S.L. appeared unkept, distracted, anxious, and suspicious towards the
guardian ad litem.
We have carefully examined and analyzed the sealed records. We conclude
that the grounds upon which the trial court based its findings for termination are
supported by clear and convincing evidence and are more than ample to show that
termination was in the best interest of S.L. because Father knowingly allowed S.L.
to remain in conditions that endangered her emotional well-being and engaged in
conduct which endangered her emotional well-being. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E). The sealed record is replete with such evidence and in the
best interests of S.L. it would serve no purpose to reveal more detailed examples
than those provided. We overrule Father’s eighth and ninth issues.
Conclusion
We affirm the trial court’s judgment.
PER CURIAM
210874F.P05
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