in the Interest of E.C.C.

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00338-CV
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IN THE INTEREST OF E.C.C.
__________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 15-09-09360-CV
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OPINION
Appellant, the father of the minor child E.C.C.,1 appeals from an order
terminating his parental rights. The jury found, by clear and convincing evidence,
that statutory grounds exist for termination of appellant’s parental rights, and that
termination of appellant’s parental rights is in the best interest of E.C.C. See Tex.
Fam. Code Ann. § 161.001(b)(1)(D), (E), (H), (N), (Q), (2) (West Supp. 2017). In
two appellate issues, appellant argues that (1) the State’s failure to prepare a family
1
We will refer to the minor child as “E.C.C.” We will refer to the child’s father
as “appellant[.]”
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plan of service denied him due process and (2) the trial court lacked jurisdiction. We
affirm the trial court’s order.
PERTINENT BACKGROUND
CPS caseworker Veronica Stubblefield testified that she received the case
involving E.C.C. when it was transferred from Anderson County to Montgomery
County in December of 2016. Stubblefield explained that E.C.C. was removed from
her grandmother’s home in July 2016 because multiple family members were using
drugs around her, and there was also family violence. According to Stubblefield,
E.C.C. tested positive for methamphetamine, as did two family members.
Stubblefield testified that appellant was incarcerated when E.C.C. was
removed, and appellant had been incarcerated for possession of methamphetamine
since 2014, before E.C.C.’s birth. Stubblefield testified that appellant was sentenced
to ten years of confinement, and he had been denied parole in April 2017.
Stubblefield explained that appellant has never seen or spoken to E.C.C., and that
appellant would have to be released from prison to be considered as a placement for
E.C.C. According to Stubblefield, CPS does not usually set visitation with parents
who are incarcerated. Stubblefield testified that she did not know whether the trial
court’s order naming CPS the temporary managing conservator of E.C.C. was sent
to appellant.
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Stubblefield testified that although CPS policy and the Family Code require a
service plan to be developed for each parent within a specific period of time, a
service plan was not timely prepared for appellant. According to Stubblefield, the
caseworker from Anderson County informed appellant regarding classes he could
take in prison. Stubblefield explained that she spoke with appellant by phone, and
appellant informed her that he did not have a service plan, so she eventually prepared
a service plan for appellant approximately six weeks before the permanency hearing.
According to Stubblefield, the service plan stated that it would be amended once
appellant is released from prison and set forth some items that might be required of
appellant, such as psychological evaluation and drug screening, among other things.
Stubblefield testified that she never attempted to return the child to appellant because
appellant is incarcerated. Stubblefield explained that CPS was not seeking
termination due to failure to complete a service plan.
Appellant testified that prior to his incarceration, his “source of income was
through the illegal sale of drugs.” According to appellant, when he was arrested in
April of 2014, he had been living in motels for two or three weeks, and prior to that
time, he was in a faith-based drug rehabilitation center. Appellant explained that he
is incarcerated because he was convicted of possession of methamphetamines. In
addition, appellant testified that he was arrested when E.C.C.’s mother handed him
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a bag of methamphetamine and instructed him to run, and appellant explained that
he told E.C.C.’s mother, “you better get clean and take care of my baby.” Appellant
explained that E.C.C.’s mother had previously told him she might be pregnant, but
they were not sure “because she has irregular periods due to her use of
methamphetamines.” Appellant testified that because he is incarcerated, he was not
present when E.C.C. was born, and he has never held, fed, or spoken to the child.
Appellant testified that he has been denied parole twice, and he explained that his
projected release date is June 13, 2018.
According to appellant, when he was notified that the child was in the care of
CPS, he asked for a family service plan because legal research he had done in prison
indicated that he should have a family service plan. Appellant stated that he has
“[s]till never received one.” Appellant asked the trial judge not to terminate his
parental rights because he wanted the child to be placed with appellant’s mother.
According to appellant, CPS did not give his family a fair chance to have the child
placed with them, and no one has explained why. Appellant opined that his parents
could provide a safe, stable environment for the child. Appellant testified that he
does not feel that he has abandoned the child, and he explained that during his
incarceration, he has written to the child and tried to support the child mentally and
spiritually.
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Court Appointed Special Advocate (“CASA”) supervisor Marilyn McQueeny
testified that CASA is a volunteer-driven organization whose job is to make
recommendations to the court regarding the best interest of the child, with the
ultimate goal of insuring that every child is placed in a safe, stable, nurturing
permanent home. McQueeny explained that CASA’s recommendation for E.C.C.’s
best interest was termination of both parents’ rights and to allow E.C.C. to be
adopted. CASA volunteer Shari Wood testified that E.C.C. had grown happier and
more trusting of people in E.C.C.’s current placement, and Wood recommended
termination of both parents’ rights and adoption of E.C.C.
ISSUE ONE
In his first issue, appellant contends the State’s failure to prepare a family plan
of service for him denied him due process. Appellant cites the provision of the
Family Code that provides that CPS shall file a service plan not later than the forty-
fifth day after the date the court renders a temporary order appointing CPS as the
child’s temporary managing conservator. See Tex. Fam. Code Ann. § 263.101 (West
Supp. 2017). In addition, appellant cites other provisions of the Family Code that
require CPS to designate personnel to ensure compliance with the service plan,
govern what a service plan must contain, provide for the development of a service
plan jointly by the child’s parents and a CPS representative, require that the court
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must evaluate the parties’ compliance with the service plan, and require that CPS
must prepare a permanency plan that includes compliance with the service plan. See
Tex. Fam. Code Ann. § 263.005 (West 2014); Id. §§ 263.102, 263.103(a),
263.303(b), 263.3025(b) (West Supp. 2017). Appellant acknowledges in his brief
that “[c]ase law does not provide a case on point addressing the complete lack of a
service plan as a fundamental due process issue.” Appellant asserts that, read
together, the statutes “clearly demonstrate that the legislative intent is for due
process to be afforded to parents in CPS cases.”
The record reflects that appellant’s rights were terminated for knowingly
allowing E.C.C. to remain in conditions or surroundings that endangered E.C.C.’s
physical or emotional well-being; engaging in conduct or knowingly placing E.C.C.
with persons who engaged in conduct that endangered E.C.C.’s physical or
emotional well-being; voluntarily, with knowledge of the pregnancy, abandoning
E.C.C.’s mother during her pregnancy and continuing through the birth, as well as
failing to support or provide medical care for the mother during the period of
abandonment before E.C.C.’s birth, and remaining apart from E.C.C. or failing to
support E.C.C. since birth; constructively abandoning E.C.C.; and knowingly
engaging in criminal conduct that resulted in his conviction and imprisonment and
inability to care for E.C.C. for not less than two years. See Tex. Fam. Code Ann. §
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161.001(b)(1)(D), (E), (H), (N), (Q), (2). We need not determine whether the Family
Code’s provisions requiring the State to provide Appellant with a service plan raises
a fundamental due process issue, because the trial court’s order terminating
appellant’s parental rights was not based upon any failure by appellant to complete
a service plan, and any such error would be harmless. See id. Accordingly, we
overrule issue one.
ISSUE TWO
In his second issue, appellant contends that the trial court lacked jurisdiction
because the trial court entered an order establishing the parent-child relationship
between appellant and E.C.C., and although CPS also filed a petition to terminate
appellant’s parental rights, CPS did not demonstrate materially and substantially
changed circumstances or file a motion to modify the order. As support for his
argument, appellant cites sections 155.001(a) and 155.003(a) of the Family Code.
See id. § 155.001(a) (West Supp. 2017) (providing that a trial court acquires
continuing, exclusive jurisdiction in connection with a child on rendition of a final
order); Id. § 155.003(a) (West 2014) (providing that a court with continuing,
exclusive jurisdiction may modify its order regarding conservatorship and
possession of the child, access to the child, and support of the child). Section
156.101(a) of the Family Code provides that the trial court may modify an order
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regarding conservatorship, possession, or access if modification is in the child’s best
interest and the circumstances of the child, a conservator, or other affected party
have materially and substantially changed. Id. § 156.101(a) (West 2014).
According to appellant, two conflicting “live” orders now exist: one
adjudicating him as E.C.C.’s father, naming him joint managing conservator, and
ordering him to pay half of any medical expenses not covered by insurance; and
another order terminating his parental rights. Appellant asserts that the Family Code
“does not give a court of continuing jurisdiction the ability to do anything other than
modify its original order.”
Section 161.001 of the Family Code, which provides for involuntary
termination of parental rights, does not require evidence of a material and substantial
change. See In the Interest of N.R.T., 338 S.W.3d 667, 673 (Tex. App.—Amarillo
2011, no pet.); see also Tex. Fam. Code Ann. § 161.001. A suit to terminate parental
rights differs from a suit for modification. See Slatton v. Brazoria Cty. Protective
Servs. Unit, 804 S.W.2d 550, 554 (Tex. App.—Texarkana 1991, no writ). “[T]he
distinction between section 156.101 governing a modification proceeding, and
section 161.001 governing a termination proceeding, is more than procedural or
semantic.” In the Interest of C.T., No. 12-09-00401-CV, 2010 WL 4880631, at *4
(Tex. App.—Tyler Nov. 30, 2010, no pet.) (mem. op.). A modification proceeding
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and a termination proceeding involve different issues and have different standards
of proof. Id. Unlike the consequences of modification, the consequences of
termination are permanent. Id. at *5. In addition, while a modification proceeding
determines whether circumstances of the child or a conservator have materially and
substantially changed and whether modification is in the child’s best interest, a
termination proceeding determines whether the parent engaged in any of the acts or
omissions listed in section 161.001 and whether termination is in the child’s best
interest. Interest of C.T., 2010 WL 4880631, at *4. Furthermore, a trial court’s order
terminating parental rights must be supported by clear and convincing evidence, but
an order modifying conservatorship is simply reviewed for abuse of discretion. Id.
Because the statutory schemes for modification and termination differ as
explained above, we conclude that the trial court did not lack jurisdiction to enter an
order terminating appellant’s parental rights. Accordingly, we overrule issue two.
Having overruled both of appellant’s issues, we affirm the trial court’s order
terminating appellant’s parental rights to E.C.C.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on November 21, 2017
Opinion Delivered January 18, 2018
Before McKeithen, C.J., Kreger and Johnson, JJ.
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