in the Interest of J.F.S.

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00289-CV
NO. 09-13-00290-CV
____________________
IN THE INTEREST OF C.G., B.G., R.S. JR., AND D.S.
AND
IN THE INTEREST OF J.F.S.
_______________________________________________________ _____________ _
On Appeal from the County Court at Law
Polk County, Texas
Trial Cause Nos. PC05350 and PC05442
________________________________________________________ ____________ _
MEMORANDUM OPINION
These cases concern the termination of the parental rights of three adults
and the decision by the trial court that terminating the parents’ rights was in the
best interest of five children. In Cause Number PC05350, the trial court signed an
order terminating the rights of B.L. (Betty) 1 to four of her minor children, C.G.,
1
To protect the identities of the minors involved in these termination cases,
we identify the parents by aliases and the minors by initials. See Tex. R. App. P.
9.8.
1
B.G., R.S. Jr., and D.S. In the same case, the court terminated the rights of A.G.
(Adam) to his minor children, C.G. and B.G., and terminated the rights of R.S.
(Richard) to two of his minor children, R.S. Jr. and D.S. In Cause Number
PC05442, the trial court signed an order terminating Betty’s and Richard’s parental
rights to J.F.S.
In each of the cases, the trial court found, by clear and convincing
evidence, that statutory grounds existed for the terminations and that terminating
the parent-child relationships was in each child’s best interest. See Tex. Fam. Code
Ann. § 161.001(1)(D), (E), (K), (N), (O), (Q), (2) (West Supp. 2013). Betty,
Richard, and Adam appealed. In Cause Number PC05350, we affirm the trial
court’s order of termination, and we dismiss Adam’s appeal. In Cause Number
PC05442, we affirm the trial court’s order of termination.
Adam’s Appeal
Adam failed to perfect a timely appeal from the trial court’s order of
termination, which is dated June 20, 2013. See Tex. R. App. P. 26.1(b), 28.1(a),
(b). Also, Adam’s notice of appeal, filed on July 29, 2013, was not filed within the
period in which we can grant an extension of time to perfect an appeal.2 See Tex.
2
We denied Adam’s motion for an extension of time to file his notice of
appeal in an order dated August 22, 2013. Because Adam failed to timely appeal,
2
R. App. P. 26.3. We dismiss Adam’s appeal as untimely. See Tex. R. App. P.
25.1(b).
Richard’s Appeal
After timely perfecting his appeal, Richard filed a motion asserting that a
court in Oklahoma, having made an initial child custody determination with
respect to R.S. Jr. and D.S., had exclusive jurisdiction over decisions concerning
them to the exclusion of the trial court in Polk County, Texas. According to
we also deny his Motion to Dismiss. In his motion, Adam requests that we order
the case involving his children dismissed for lack of jurisdiction. In light of his
untimely appeal, if Adam wishes to pursue his challenge to the trial court’s
exercise of jurisdiction over C.G. and B.G. in Cause Number PC05350, and before
we may consider his claim that the trial court was without jurisdiction to modify
the Oklahoma court’s prior child custody determination, he must collaterally attack
the trial court’s order of termination or pursue a bill of review. See generally In re
E.R., 385 S.W.3d 552, 566 (Tex. 2012) (stating that if service was invalid, section
161.211 of the Texas Family Code does not bar a collateral attack after the sixth
month after the date the order was signed because the resulting judgment is void);
Caldwell v. Barnes, 154 S.W.3d 93, 96-98 (Tex. 2004) (noting elements necessary
to demonstrate that a party is entitled to relief in a bill of review proceeding);
Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994)
(noting that in a collateral attack a party must show that the underlying judgment is
void). Additionally, we note that Betty does not challenge the trial court’s
jurisdiction. But, even if she had, Adam attached a certified copy of the Oklahoma
court’s order terminating his parental rights to C.G. and B.G. to his motion to
dismiss. We judicially notice the certified copy of the Oklahoma court’s order
terminating his rights. See Tex. R. Evid. 201. Accordingly, the record shows that
Adam was not presently a parent of either C.G. or B.G. who was residing in
Oklahoma when the Department initiated the modification proceeding at issue. See
Tex. Fam. Code Ann. § 161.206(b) (West 2008); see also id. § 101.024(a) (West
2008). For that additional reason, Adam’s motion to dismiss is denied.
3
Richard’s motion to dismiss, the trial court in Texas was without jurisdiction to act
on the Department’s petition.
The construction of the “home state” provision in section 152.201 of the
Texas Family Code is a question of law that we review de novo. See Powell v.
Stover, 165 S.W.3d 322, 324 (Tex. 2005); see also Tex. Fam. Code Ann. § 152.201
(West 2008). With respect to modifying custody orders of other states, the Texas
Family Code provides that courts authorized under Texas law to establish, enforce,
or modify child custody determinations have the authority to modify a child
custody determination made by a court of another state if (1) the court in this state
has jurisdiction to make an initial determination, and (2) the court in this state
“determines that the child, the child’s parents, and any person acting as a parent do
not presently reside in the other state.” Tex. Fam. Code. Ann. § 152.203 (West
2008); see also id. § 152.102(6) (West 2008).
The record in the trial court shows that the district court in Polk County
possessed jurisdiction with respect to making an initial child custody
determination. See id. § 152.201. The evidence further shows that Texas was R.S.
Jr.’s and D.S.’s home state because both children had been living with a parent in
Texas for at least six consecutive months before February 2012, the date the child
custody proceedings in Texas commenced. See id. §§ 152.102(7), 152.201(a)(1)
(West 2008). There is also evidence in the record supporting the trial court’s
4
determination that R.S. Jr.’s and D.S.’s parents, Richard and Betty, do not
presently reside in Oklahoma. 3 See id. § 152.203(2). We conclude the evidence in
the record established that the trial court had jurisdiction to modify the Oklahoma
court’s prior custody determination affecting R.S. Jr. and D.S. See id. § 152.203; In
re S.C.S., No. 05-06-01600-CV, 2008 WL 1973570, at *2 (Tex. App.—Dallas May
8, 2008, no pet.). We deny Richard’s motion to dismiss.
In the sole issue raised in both of Richard’s briefs that address the
termination of his parental rights to his children, Richard asserts his trial counsel
was ineffective because his counsel failed to file an answer “denying paternity,
admitting paternity, or a Counter-petition seeking to establish or exclude [him] as
the father of [R.S. Jr., D.S., and J.F.S.].” To establish ineffective assistance of
counsel, Richard must show that: (1) counsel’s performance was deficient; and (2)
the deficient performance prejudiced the defense. See In re J.P.B., 180 S.W.3d
570, 574 (Tex. 2005); see also Strickland v. Washington, 466 U.S. 668, 687
3
The record shows that Betty, but not Richard, filed a general request that
asked the trial court to state its findings and conclusions in writing; however, Betty
did not specify that she wanted findings or conclusions on any specific issue, such
as whether any person acting as a parent presently resided in Oklahoma. Among
the trial court’s findings and conclusions is a recital stating that the trial court had
jurisdiction over the subject matter and all parties. After the trial court filed its
findings and conclusions, no party asked the trial court to make any additional
findings or conclusions; therefore, any omitted findings that are supported by the
evidence are deemed to be “supplied by presumption in support of the judgment.”
Tex. R. Civ. P. 299.
5
(1984). To prevail on appeal, Richard is required to show that his representation
fell below an objective standard of reasonableness, and he must also demonstrate a
reasonable probability exists that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. See Strickland, 466 U.S. at 688, 694;
In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003). In considering whether counsel’s
performance was deficient, we consider all of the circumstances that surround the
case, and we “primarily focus on whether counsel performed in a ‘reasonably
effective’ manner.” M.S., 115 S.W.3d at 545. Our review of counsel’s performance
is highly deferential, and we presume that counsel’s conduct fell within the range
of reasonable professional assistance, which includes “the possibility that counsel’s
actions [were] strategic.” Id. “‘An allegation of ineffective assistance must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.’” Walker v. Tex. Dep’t of Family & Protective Servs., 312
S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (quoting
In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.)).
Because the trial court’s findings and conclusions include several grounds—
as alleged in the Department’s petitions—justifying the termination of Richard’s
parental rights, and the best interest finding is not premised solely on the ground
that Richard failed to timely respond to the Department’s petitions, it appears the
trial court would have still terminated Richard’s parental rights even had he timely
6
responded to the Department’s petitions. See Tex. Fam. Code Ann. § 161.002(b)
(West 2008) (allowing termination of an alleged father’s parental rights for failing
to respond by timely filing an admission of paternity or a counterclaim for
paternity). The trial court also found that termination of Richard’s parental rights
was in each child’s best interest. Given the trial court’s findings, we conclude the
trial court would terminate Richard’s parental rights in another trial. For example,
the Department’s pleadings, the evidence admitted during the trial, and the trial
court’s findings reflect that Richard has been sentenced to serve a term of life in
prison for burning the family’s residence, that he had knowingly placed or allowed
his children to remain in conditions or surroundings that endangered their physical
or emotional well-being, that he did not regularly visit or maintain contact with his
children, that he did not demonstrate that he had the ability to provide them with a
safe environment, that he had failed to comply with the provisions of a court order
establishing the actions he needed to take to obtain the return of his children, and
that it was in the best interest of the children to terminate Richard’s parental rights.
These findings, independent of Richard’s counsel’s failure to admit paternity or
file a counter-petition, are findings that the trial court could have used as the
grounds to terminate Richard’s parental rights. See id. § 161.001 (West Supp.
2013). They are also not challenged in the appeal.
7
Under Strickland’s second prong, we must determine whether counsel’s
defective performance caused Richard harm. See Strickland, 466 U.S. at 687, 694.
The test we apply is whether “‘there is a reasonable probability that, but for
counsel’s unprofessional error(s), the result of the proceeding would have been
different.’” M.S., 115 S.W.3d at 549-50 (quoting Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001)). Given the trial court’s findings favorable to the
Department’s claim that Richard’s rights should be terminated, as well as the trial
court’s finding that the terminations were in each child’s best interest, we are not
persuaded that Richard’s parental rights would not have been terminated had
Richard’s trial counsel filed a timely response to the Department’s petitions. In our
view, the record is sufficient to demonstrate that the trial court would have
terminated Richard’s parental rights on the other grounds of termination that are
supported by the Department’s pleadings and the evidence admitted during the
trial.
We conclude that Richard has not demonstrated on this record that he was
harmed because his attorney failed to timely respond to the Department’s petitions.
We overrule the sole issue that Richard has raised in each of his appeals.
Betty’s Appeal
Betty raises two identical issues in her appeals: (1) whether the evidence is
legally and factually sufficient to support the orders terminating her parental rights
8
to her five children, C.G., B.G., R.S. Jr., D.S., and J.F.S.; and (2) whether she was
denied the effective assistance of counsel at trial. In a legal sufficiency review of
an order terminating parental rights, we review all the evidence from the trial “in
the light most favorable to the finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.” In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). With respect to Betty’s factual sufficiency
argument, we must “give due consideration to evidence that the factfinder could
reasonably have found to be clear and convincing.” Id. Under a factual sufficiency
standard, the findings the trial court made are sufficient unless, based on the entire
record, the disputed evidence that could not have been credited in favor of the
finding is so significant that the trial court could not have reasonably formed a firm
belief or conviction that the fact at issue was true. See id.
During the trial, the Department bore the burden of proving, by clear and
convincing evidence, that the parent engaged in certain proscribed conduct as
specified in the Family Code. In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). The
Department also bore the burden of proving by clear and convincing evidence that
a decision to terminate Betty’s rights was in each child’s best interest. See id. The
Family Code defines clear and convincing evidence as “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. §
9
101.007 (West 2008). Based on the Department’s pleadings, the trial court could
terminate Betty’s parental rights if the Department proved by clear and convincing
evidence that: (1) she committed one of the statutory grounds for termination
found in section 161.001(1) of the Family Code, and that (2) termination was in
each child’s best interest. See id. § 161.001(1), (2). Betty challenges both the trial
court’s findings that she committed statutory violations and the trial court’s
findings that the terminations were in each child’s best interest.
The trial court terminated Betty’s parental rights on six grounds, including
that Betty constructively abandoned her children and had knowingly engaged in
criminal conduct, was convicted and imprisoned, resulting in her being unable to
care for her children for a period that extended through February 7, 2014. See id. §
161.001(1)(N), (Q). The trial court also found that the terminations of Betty’s
parental rights were in each child’s best interest. See id. § 161.001(2). Based on its
findings, the trial court terminated Betty’s parent-child relationships with C.G.,
B.G., R.S. Jr., D.S., and J.F.S.
Section 161.001(1)(Q) of the Family Code provides that a trial court may
terminate a parent’s rights to her child if the parent has “knowingly engaged in
criminal conduct that has resulted in the parent’s: (i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than
two years from the date of filing the petition[.]” See id. § 161.001(1)(Q). Section
10
161.001(1)(Q) applies prospectively, thus “‘if the parent is convicted and
sentenced to serve at least two years and will be unable to provide for his or her
child during that time, the State may use subsection Q to ensure that the child will
not be neglected.’” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (quoting In re
A.V., 113 S.W.3d 355, 360 (Tex. 2003)). Although parole decisions are inherently
speculative, evidence that a parent might be paroled is relevant in determining
whether a parent will be released. Id. at 109. However, the mere introduction of
evidence regarding possible parole dates does not prevent a factfinder from
forming a firm conviction or belief that the parent will remain incarcerated for the
two-year period at issue. Id.
Having reviewed the testimony from the trial, we conclude that there is
sufficient evidence in the record to support the trial court’s determination that
Betty knowingly engaged in criminal conduct which resulted in her conviction.
The record shows that Betty was arrested for possession of methamphetamine in
February 2012. At trial, Betty admitted that on the day she was arrested, she had
methamphetamine in her purse and that she was using methamphetamine. Based
on Betty’s plea bargain agreement for possessing methamphetamine, the trial court
sentenced Betty to an eight-year prison sentence; then, the trial court probated
Betty’s sentence and placed her on probation. The trial court also heard testimony
from another witness who testified that in December 2012, Betty violated the terms
11
of the trial court’s probation order, that she was arrested and then incarcerated, and
that she has been incarcerated since December.
According to Betty, she is currently serving an eight-year sentence; absent
her release on parole, she will not be released until the latter part of 2019.
Although Betty testified that she expected to be released on parole in September
2013, she also acknowledged that she might not be paroled. The evidence admitted
during the trial about when Betty will be released conflicted. Weighing all of the
evidence, and giving due deference to the trial court’s findings, we conclude the
trial court could reasonably form a firm conviction that Betty, due to her
incarceration, would not be able to care for her children during the two-year period
at issue. See id; see also Tex. Family Code Ann. § 161.001(1)(Q) .
After the Department established that Betty’s knowing criminal conduct
resulted in her incarceration for the period at issue, the burden shifted to Betty to
produce evidence showing that she had arranged to take care of her children while
incarcerated. See In re H.R.M., 209 S.W.3d at 110; In re Caballero, 53 S.W.3d
391, 396, 397-98 (Tex. App.—Amarillo 2001, pet. denied). In part, Betty points to
the testimony of her sister to support her claim that she made adequate
arrangements for her children to be cared for while she was incarcerated. However,
there was evidence admitted during trial that one of Betty’s children was
physically abused by Betty’s sister during a prior placement. In her testimony,
12
Betty’s sister also implies that she would rely on Betty’s mother and father in
caring for Betty’s children.
Betty also points to the testimony of her parents to show that she made
arrangements for her children to be cared for while she was incarcerated. While
Betty’s mother testified that she was willing to get a home study done on her
home, she agreed that she had not talked with the Department about taking any of
Betty’s children. Also, Betty’s mother’s testimony about her willingness to care for
the children was equivocal, as she testified that she could “[p]robably[]” take the
oldest two children. The testimony of Betty’s father implies that the care of Betty’s
children would be left to three people; him, Betty’s mother, and Betty’s sister.
Betty agreed that none of her family members would be able to care for all of her
children. The testimony of Betty and her family members does not address how
Betty’s children would be cared for if she did not obtain her release on parole.
Considering all of the testimony, the trial court could reasonably conclude that
Betty’s family had not made any concrete plans to care for Betty’s children in the
event she failed to obtain her release on parole.
The Department presented evidence that supports the trial court’s conclusion
that Betty’s proposal to allow her parents and her sister to care for her children was
inadequate. The Department provided the trial court with testimony that Betty’s
children, after being placed with Betty’s sister, were removed from that home due
13
to the physical abuse of one of the children. Because of the prior allegation of
abuse, the Department determined that Betty’s sister was not a suitable placement
for the care of Betty’s children. There was also evidence supporting the trial
court’s conclusion that Betty’s children would not receive adequate care if placed
with Betty’s parents. According to the Department, when they contacted Betty’s
parents, the Department was told that the parents were not in a position to take care
of Betty’s children. Betty’s parents also did not name other family members who
were interested in caring for Betty’s children. Additionally, the Department
presented evidence showing that Betty’s parents intended to involve Betty’s sister
in caring for Betty’s children if they were placed with them; yet, the Department
ruled out Betty’s sister as a placement because of the prior allegation of physical
abuse involving one of Betty’s children.
Having carefully reviewed all of the evidence under the standard for legal
and factual sufficiency, we conclude the trial court could reasonably form a firm
belief or conviction that Betty violated section 161.001(1)(Q) by knowingly
engaging in criminal conduct resulting in her conviction, imprisonment, and
inability to care for her children for the two-year period at issue. See Tex. Fam.
Code Ann. § 161.001(1)(Q). In light of our conclusions that factually and legally
sufficient evidence support Betty’s termination under section 161.001(1)(Q), we
need not address Betty’s remaining legal and factual sufficiency arguments, as they
14
relate to the other grounds of termination. See Tex. R. App. P. 47.1; In re A.V., 113
S.W.3d 355, 362 (Tex. 2003) (“Only one predicate finding under section
161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child’s best interest.”).
Betty also challenges the legal and factual sufficiency of the evidence to
support the trial court’s best interest findings. “[T]here is a strong presumption that
the best interest of a child is served by keeping the child with a parent.” In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006). Nevertheless, a 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) (West 2008). In reviewing the
trial court’s best interest findings, we consider:
(1) the child’s desires;
(2) the child’s emotional and physical needs now and in the future;
(3) any 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 the individuals seeking custody to
promote the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the parent’s acts or omissions which may indicate that the existing
parent-child relationship is improper; and
15
(9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam. Code Ann. §
263.307(b) (West 2008).
Betty argues that the Department’s evidence failed to address several of the
Holley factors. However, the absence of evidence about some of the considerations
that may factor into a best interest determination does “not preclude a factfinder
from reasonably forming a strong conviction or belief that termination is in the
child’s best interest, particularly if the evidence were undisputed that the parental
relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex.
2002).
The trial court in this case considered testimony that bore on the interests of
the children in terminating or preserving Betty’s parental rights. There was
evidence that Betty had not seen her children since September 2012, when she
violated the terms of her probation by leaving the State of Texas and moving to
Oklahoma. There was also evidence that the children were happy with their
placement in foster care, that they were receiving the services that they needed, and
that they were doing well. Witnesses from the Department, as well as the CASA
volunteer, expressed their opinions that the children’s best interests would be
served by terminating Betty’s parental rights.
16
There was also evidence from which the court could have inferred that Betty
had poor parenting skills. There was testimony that Betty used methamphetamine
while she was pregnant with J.F.S. and while her other children were under her
supervision, and that she was using methamphetamine when the house in which the
family lived caught fire. Additionally, the trial court could have viewed Betty’s
plans for the children as short-range, as her plans depended on her release on
parole. Additionally, Betty’s plans envisioned that three of her children would be
taken care of by her sister, although her children’s prior placement with her sister
had proven unsuccessful due to an allegation of physical abuse. The trial court
could have viewed Betty’s short-range plans as inadequate, and Betty never clearly
defined a plan that considered she might remain incarcerated until 2019.
On this record, it was reasonable for the trial court to view the Department’s
plan for foster care with a goal of adoption as the plan that better served each
child’s best interest. We conclude that the trial court, on this record, could
reasonably form a firm conviction or belief that termination of Betty’s parental
rights was in the best interest of each child. We overrule Betty’s first issue in both
of her appeals.
In issue two in both of her appeals, Betty contends she received ineffective
assistance of counsel at trial because her counsel failed (1) to object to testimony
regarding the results of a positive methamphetamine test, (2) to object to the
17
Department calling her as a witness, (3) to advise her to invoke her Fifth
Amendment right against incrimination, (4) to object to questions concerning her
drug use while she was pregnant, and (5) to request that counsel be allowed to be
present when the trial court interviewed B.G. in chambers.
The trial court did not conduct an evidentiary hearing on Betty’s motion for
new trial, so there is no explanation regarding the reasons for counsel’s alleged
inactions. See Walker, 312 S.W.3d at 623 (“We may not speculate to find trial
counsel ineffective when the record is silent regarding counsel’s reasons for his
actions.”). Additionally, Betty has failed to demonstrate that the outcome of the
termination proceeding would have been different had trial counsel provided the
advice that appellate counsel suggests she should have gotten. See Strickland, 466
U.S. at 694. Even without Betty’s testimony, the record contains evidence that
Betty failed to comply with the provisions of her court ordered family service plan
for a period of not less than nine months. See Tex. Fam. Code Ann. §
161.001(1)(O). Because Betty’s claims are not firmly founded in the record, and
she has not shown that the result in her case would have been different, she has not
shown that she is entitled to relief on her ineffective assistance claim. We overrule
Betty’s second issue in both of her appeals.
18
Conclusion
For the reasons we have explained, we dismiss Adam’s untimely appeal, and
we deny his motion to dismiss. We further conclude the trial court had jurisdiction
to modify the Oklahoma court’s prior child custody determination that concerned
C.G., B.G, R.S. Jr., and D.S.; therefore, we deny Richard’s motion to dismiss. As
we are not persuaded that Richard demonstrated that he received ineffective
assistance of counsel, his sole issue in both appeals is overruled. Finally, based on
our conclusion that the evidence is legally and factually sufficient to support the
trial court’s orders of termination and that Betty’s ineffective assistance issue is
without merit, we overrule both of Betty’s issues in her appeals. In accordance
with these rulings, we affirm the trial court’s orders of termination.
Trial Cause Number PC05350 AFFIRMED, APPEAL DISMISSED as to
A.G.
Trial Cause Number PC05442 AFFIRMED.
______________________________
HOLLIS HORTON
Justice
Submitted on October 17, 2013
Opinion Delivered December 12, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.
19