in the Interest of Z.A., a Child

Reversed and Remanded and Opinion Filed August 6, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00126-CV
IN THE INTEREST OF Z.A., A CHILD
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. FA-20-0213
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Partida-Kipness
Alleged father E.S.S. appeals the termination of his parental rights following
a bench trial. In two issues, E.S.S. contends the trial court erred in denying his
motion for continuance and terminating his parental rights without sufficient
evidence to prove that he committed alleged acts or omissions. We sustain E.S.S.’s
issues, reverse the trial court’s judgment, and remand the case to the trial court for
further proceedings consistent with this opinion.
BACKGROUND
Z.A. is a male born on June 21, 2019. R.A. is his mother, and E.S.S. is his
alleged father. The Texas Department of Family and Protective Services (the
Department) received and investigated multiple reports of R.A.’s neglectful
supervision and physical abuse of Z.A. After the third report, the Department
investigator met with R.A. to discuss family members with whom Z.A. could be
placed. R.A. identified E.S.S. as Z.A.’s father. She claimed that E.S.S. had not had
anything to do with her since she told him that she was pregnant. She said he had
never seen Z.A. and thought E.S.S. was in prison. E.S.S. was, in fact, in prison and
had been there since Z.A. was born.
The Department removed Z.A. from R.A.’s custody. On February 10, 2020,
the Department filed a petition for Z.A.’s protection and for termination of R.A.’s
and E.S.S.’s parental rights. The Department’s petition also sought a determination
of parentage as to E.S.S. Alternatively, if E.S.S. appeared in the case and was
adjudicated as Z.A.’s father, but reunification could not be achieved, the Department
sought termination of his parental rights on multiple statutory grounds. E.S.S. was
still in prison when the Department filed its petition. Although he did not file a
formal answer, he did file a pro se letter on February 21, 2020, in which he stated
that he was Z.A.’s biological father. His letter also indicated his desire to retain his
parental rights “to raise my son.”
The trial court held an adversary hearing on February 24, 2020. E.S.S.
appeared at the hearing by teleconference. After the hearing, the trial court issued a
temporary order in which it found sufficient evidence of a danger to Z.A.’s physical
health and safety to justify Z.A.’s removal. The trial court also ordered E.S.S. to
submit to genetic testing with arrangements for testing to be made by the
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Department. The Department scheduled genetic testing for E.S.S. on August 10,
2020, in Greenville, Texas. E.S.S. was out of prison at that time and residing in the
Dallas Transitional Center in Hutchins, Texas. He did not appear for the
appointment. The Department rescheduled testing for September 24, 2020. E.S.S.
missed that appointment as well. But the record contains conflicting evidence as to
whether the Department successfully notified E.S.S. of this appointment. E.S.S. was
arrested on October 29, 2020, and placed in Grayson County Jail. The Department
attempted to schedule a third appointment through the Grayson County Jail. No
appointment was made, however, and the record does not reflect why.
The trial court held a permanency hearing on November 30, 2020, and issued
a permanency order on December 1, 2020. E.S.S. appeared at the hearing through
court-appointed counsel. In the order, the trial court found, among other things, that
E.S.S. had not complied with the court’s order to submit to genetic testing to
determine parentage. The trial court also reaffirmed that the case was set for final
hearing on February 15, 2021, the same date the trial court set for dismissal
according to section 263.306(a-1)(7) of the family code. See TEX. FAM. CODE §
263.306(a-1)(7) (requiring a trial court to estimate at each permanency hearing
before rendering a final order “a likely date by which the child may be returned to
and safely maintained in the child’s home, placed for adoption, or placed in
permanent managing conservatorship”).
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E.S.S. filed a motion for continuance and demand for jury trial on February 3,
2021. He demanded a jury trial under section 105.002 of the family code. See id. §
105.002 (permitting a jury demand except for suits in which adoption is sought or to
adjudicate parentage under chapter 160). His motion for continuance asserted,
however, that a jury trial could not be safely held because of the ongoing COVID-
19 pandemic. Thus, he sought a continuance under the Texas Supreme Court’s
Thirty-Third Emergency Order Regarding COVID-19. The Department moved to
strike E.S.S.’s jury demand as untimely and asked the trial court to deny E.S.S.’s
motion for continuance because he had cited no reason other than the COVID-19
order to continue the final hearing setting. E.S.S. responded that his jury demand
was not untimely because there is no statutory deadline for such a demand.
Regarding grounds for a continuance, he noted evidence that the Department had
attempted to schedule genetic testing at the Grayson County Jail by the end of
January 2021, but no testing had been scheduled.
The trial court heard E.S.S.’s motion on February 8, 2021. At the hearing, the
court struck the jury demand as untimely, concluded that E.S.S.’s motion for
continuance was based solely on his jury demand, and denied the continuance.
Finding there was not sufficient time to hold another hearing before the February 15,
2021 final hearing deadline, and E.S.S. had not identified any other extraordinary
circumstances to justify a continuance, the trial court conducted the final
permanency hearing. The court received testimony from the Department’s
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caseworker, the CASA advocate assigned to the case, and E.S.S. At the close of
testimony, E.S.S. asked the trial court to order genetic testing again before entering
a termination order. The trial court found there was no credible evidence that E.S.S.
“made any efforts” to inform the Department that he was unable to appear for the
two testing appointments he missed; E.S.S. did not register with the paternity
registry or file a timely admission of paternity; it was not in Z.A.’s best interest to
delay permanency; and it was in Z.A.’s best interest to terminate any parental rights
E.S.S. may have. The trial court issued an order terminating “the parent-child
relationship, if any exists or could exist,” between E.S.S. and Z.A. This appeal
followed.
ANALYSIS
In two issues, E.S.S. contends (1) the trial court should have granted his
motion for continuance based on extraordinary circumstances, and (2) there was not
clear and convincing evidence that he committed any of the alleged grounds for
termination. We address the issues in order.
I. Motion for Continuance
In his first issue, E.S.S. contends the trial court abused its discretion in
denying his motion for a continuance. On appeal, E.S.S. cites the Department’s
pending genetic testing request as an extraordinary circumstance justifying a
continuance. The Department contends E.S.S. did not cite this reason in his motion
but based his motion solely on the alleged inability to hold a jury trial due to the
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COVID-19 pandemic. Because E.S.S.’s jury demand was untimely, the Department
contends the trial court properly denied his motion for a continuance.
We review the denial of a motion for continuance for an abuse of discretion.
Wal–Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas
2009, pet. denied). The denial will be reversed only if the trial court’s action was
arbitrary, unreasonable, or without reference to any guiding rules and principles.
Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—Dallas 2008, no
pet.). A party moving for continuance must show sufficient cause supported by
affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. Failure
to comply with this requirement creates a rebuttable presumption that the trial court
did not abuse its discretion in denying a motion for continuance. Moffitt v. DSC Fin.
Corp., 797 S.W.2d 661, 663 (Tex. App.—Dallas 1990, writ denied). Whether a
continuance should be granted is to be judged in light of facts before the trial judge
at the time the motion is presented. Aguilar v. LVDVD, L.C., No. 08-01-00438-CV,
2002 WL 1732520, at *3 (Tex. App.—El Paso July 25, 2002, pet. denied) (not
designated for publication) (citing Gulf Ins. Co. v. Dunlop Tire and Rubber Corp.,
584 S.W.2d 886, 889 (Tex. Civ. App.—Dallas 1979, writ ref’d n.r.e.)).
E.S.S.’s motion was not supported by an affidavit as required by rule 251.1
Accordingly, there is a rebuttable presumption that the trial court did not abuse its
1
The motion also stated a basis for granting the continuance by operation of law: the supreme court’s
emergency COVID-19 order and his associated jury demand. On appeal, E.S.S. does not contest the trial
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discretion in denying the motion. See Moffitt, 797 S.W.2d at 663. Evidence presented
at the final hearing and in E.S.S.’s written reply in support of his motion was
sufficient to rebut this presumption. See Thrower v. Johnston, 775 S.W.2d 718, 721
(Tex. App.—Dallas 1989, no writ) (evidence supporting movant’s request for
continuance rebutted presumption the trial court did not abuse its discretion in
denying unverified motion for continuance).
The trial court determined that E.S.S.’s motion was based solely on E.S.S.’s
jury demand. Because the court had denied the jury demand as untimely, it also
denied the motion. The need for genetic testing, however, was presented as a ground
for continuance in the final hearing. Indeed, E.S.S.’s inability to appear for two
genetic testing appointments and the parties’ desire to schedule a third appointment
was the primary focus of the hearing.
E.S.S. testified that he moved into the Dallas Transitional Center in Hutchins,
Texas, upon release from prison. Shortly after arriving in Hutchins, he spoke with
the caseworker about genetic testing and indicated that he wanted to delay testing
because he was planning to move to Sherman, Texas, after his home plan was
approved. The caseworker testified, however, that there is no testing center in
Sherman, and the record does not reflect that she conveyed this information to E.S.S.
Regardless, after E.S.S. twice indicated his desire to schedule testing after he moved
court’s denial of his motion on this ground. Accordingly, he has waived any complaint as to the trial court’s
denial of his motion on this ground. TEX. R. APP. P. 38.1(f).
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to Sherman, the caseworker scheduled testing in Greenville while E.S.S. was still
living in Hutchins. It is unclear from the record whether E.S.S. knew of the
appointment because the caseworker was unable to reach him. Although the
caseworker informed E.S.S.’s attorney, there is no evidence that E.S.S. received any
information about the initial appointment.
E.S.S. and the caseworker reconnected after he missed the first appointment.
E.S.S. told the caseworker that he wanted to reschedule, and the caseworker
contacted the Attorney General’s office to schedule a new appointment. The AG’s
office scheduled a new appointment for September 29, 2021, and notified the
caseworker on September 17, 2021. She notified E.S.S. the same day. E.S.S. was
living in Denison at the time. The record does not reflect the location of the second
appointment, but E.S.S. did not appear.
E.S.S. testified that he was unable to make the appointments because he did
not have transportation. According to E.S.S., he did not have a driver’s license or
vehicle, and did not have transportation to get to the testing location for either
appointment. He claimed that he was walking to work while living in Denison and
specifically told the caseworker that he was having trouble arranging transportation
for the testing appointments. According to E.S.S., the caseworker asked whether
E.S.S.’s mother could take him. He said that she could not because she was
undergoing chemotherapy treatment at the time. The caseworker testified, however,
that she never asked E.S.S. whether he could obtain a ride, she did not know whether
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E.S.S. had transportation, and she could not recall whether E.S.S. indicated he could
obtain a ride. When asked whether it would have been difficult for E.S.S. to have
gone to Greenville for testing, the caseworker offered only, “I think that he could of
[sic] found a ride.”
The caseworker testified that the Department attempted to schedule a third
testing appointment at the Grayson County Jail in the hopes of having E.S.S. tested
by the end of January 2021. The test was not scheduled, and the record does not
reflect why. E.S.S. noted this fact in his written reply filed before the hearing. At the
conclusion of testimony, E.S.S.’s counsel asked the court to order genetic testing
before entering a termination order. According to the Department, E.S.S. missed the
two genetic testing appointments because it was not “important enough for him to
go to those visits.” The trial court concluded there was no credible evidence that
E.S.S. made any effort to inform anyone that he was unable to appear for the two
missed testing appointments. We disagree.
Evidence presented at the hearing indicated that E.S.S. was indigent and
without transportation. Further, he was operating under the faulty assumption that
testing would be scheduled in Sherman when he moved there. There was no testing
facility in Sherman, however, and the caseworker did not inform him of this fact.
And, as of the hearing date, E.S.S. was incarcerated in the Grayson County Jail.
Although there is evidence the Department made some attempt to schedule a third
appointment at the jail, there is no evidence as to why that did not happen. His
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attendance at a third appointment would have essentially been assured had it been
scheduled to take place at the Grayson County Jail. When E.S.S. presented his
motion, he asked the trial court to schedule the genetic testing before terminating his
parental rights. In light of the facts before the trial court at the time E.S.S.’s motion
was presented, we conclude the trial court abused its discretion in denying the
motion. See Aguilar, 2002 WL 1732520, at *3.
II. Involuntary Termination
In his second issue, E.S.S. contends the trial court erred in terminating his
parental rights because the Department failed to prove by clear and convincing
evidence that he committed any of the acts or omissions alleged in the Department’s
petition.
The involuntary termination of parental rights involves fundamental
constitutional rights. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). A natural
parent’s desire for—and right to—the companionship, care, custody, and
management of his or her child is an interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982). A termination order is
final and irrevocable, divesting for all time that natural right as well as all legal
rights, privileges, duties, and powers between the parent and child except for the
child’s right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re
M.S., 115 S.W.3d 534, 549 (Tex. 2003) (referring to termination of a parent’s right
to his or her child as “traumatic, permanent, and irrevocable”).
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Both the Texas Family Code and federal due process require that grounds for
termination of parental rights be proved by clear and convincing evidence. TEX.
FAM. CODE § 161.001; Santosky, 455 U.S. at 769. A trial court may order termination
of a parent’s rights to a child under section 161.001 if the court finds by clear and
convincing evidence that termination is in the child’s best interest and that one or
more of the statutory predicate grounds for termination have been satisfied. In re
Z.N., 602 S.W.3d 541, 543 (Tex. 2020) (per curiam); TEX. FAM. CODE § 161.001(b).
Yet, a trial court may terminate a parent’s rights without a best interest finding for
failure to file a timely admission of paternity under 161.002(b)(1). Compare TEX.
FAM. CODE § 161.001(b)(2) with § 161.002(b)(1); see also R.H. v. Tex. Dep’t of
Family & Protective Services, 550 S.W.3d 631, 640 (Tex. App.—El Paso 2013, no
pet.) (overruling alleged father’s complaint “Department failed to prove by clear and
convincing evidence that termination of his parental rights was in the best interest of
the children,” when rights terminated under section 161.002(b)(1), because no best-
interest finding required).
The Department sought termination of E.S.S.’s parental rights on two
alternative grounds. First, the Department sought termination of E.S.S.’s parental
rights as an alleged father on grounds outlined in section 161.002 of the family code.
See TEX. FAM. CODE § 161.002(b) (permitting termination of alleged father’s rights
for failing to file a timely admission of paternity or register with the paternity
registry). Alternatively, if E.S.S. was established as the father, the Department
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sought termination based on acts or omissions alleged under section 161.001 of the
family code. See TEX. FAM. CODE § 161.001 (listing acts and omissions that may
serve as grounds for termination of parental rights). The trial court did not adjudicate
E.S.S. as Z.A.’s father and did not find that he committed any of the acts or omissions
alleged under section 161.001. Indeed, the record does not reflect that the
Department offered any evidence of such acts or omissions. Thus, the Department
relied solely on its first ground for termination.
According to the Department’s petition, the trial court could terminate
E.S.S.’s parental rights as an alleged father if he did not respond to the petition by
filing a timely admission of paternity or failed to register with the paternity registry.2
See TEX. FAM. CODE § 161.002(b)(1), (3). In the final hearing, the Department
argued that section 160.404 of the family code permits rights of “the unknown father
in this case” to be terminated “because no one has registered as [Z.A.’s] father with
the paternity registry.”3 This is incorrect. Section 160.404 pertains only to the
termination of an alleged father’s parental rights when he did not timely register.
TEX. FAM. CODE § 160.404(1). An alleged father who has filed a timely admission
of paternity, however, may not have his parental rights summarily terminated solely
2
The Department’s petition also sought to terminate E.S.S.’s parental rights under section
161.002(b)(4). The Department, however, did not pursue this ground for termination, and it is not addressed
in the trial court’s termination order.
3
The record reflects that the Department argued section “168.404” permitted termination of an
unknown father’s rights because no one had registered with the paternity registry. There is no such section
in the family code. Section 160.404 concerns termination of parental rights for failure to register with the
paternity registry. Thus, we assume the Department intended to refer to this section.
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for failing to register with the paternity registry. Phillips v. Tex. Dep’t of Protective
& Regulatory Servs., 25 S.W.3d 348, 357 (Tex. App.—Austin 2000, no pet.). The
evidence indicates that E.S.S. filed a timely admission.
“A respondent in a proceeding to adjudicate parentage may admit to the
paternity of a child by filing a pleading to that effect or by admitting paternity under
penalty of perjury when making an appearance or during a hearing.” TEX. FAM.
CODE § 160.623(a). “There is no provision in the Texas Family Code that specifies
any particular form or language required for an admission of paternity.” Estes v.
Dallas Cty. Child Welfare Unit of Tex. Dep’t of Human Servs., 773 S.W.2d 800, 801
(Tex. App.—Dallas 1989, writ denied). The threshold for qualifying a statement as
an admission of paternity is exceedingly low. Merely being described as a parent to
the child at issue is sufficient. See id. at 802 (respondent describing “himself as an
indigent parent” was sufficient to qualify as an admission of paternity); see also In
re E.A.M.V., No. 04-18-00866-CV, 2019 WL 1923214, at *2 (Tex. App.—San
Antonio May 1, 2019, pet. denied) (mem. op.) (alleged father’s letter to trial court
clerk asserting he was father of child at issue constituted an admission of paternity);
In re U.B., No. 04-12-00687-CV, 2013 WL 441890, at *2 (Tex. App.—San Antonio
Feb. 6, 2013, no pet.) (alleged father’s letter to court referring to children at issue as
“my children” constituted an admission of paternity); Toliver v. Tex. Dep’t of Family
& Prot. Svcs., 217 S.W.3d 85, 105 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(respondent’s appearance at trial, assertion of paternity, and request that parental
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rights not be terminated constituted an admission of paternity). To be timely, an
admission need only be “filed prior to the final hearing in the suit for termination.”
Estes, 773 S.W.2d at 802; see also Toliver, 217 S.W.3d at 105 (admission of
paternity made at trial was timely).
Once a court finds that an admission of paternity satisfies the statutory
requirements for such an admission, “and that there is no reason to question the
admission, the court shall render an order adjudicating the child to be the child of
the man admitting paternity.” TEX. FAM. CODE § 160.623(b) (emphasis added).
Thus, an alleged father who admits paternity can “stave off summary termination of
his rights [under section 161.002(b)(1)] and require[] the Department to meet the
high burden of proof found in section 161.001.” Phillips, 25 S.W.3d at 357. In other
words, the admission gives him the right to proceed to trial and require the
Department to prove by clear and convincing evidence that he engaged in one of the
types of conduct listed in section 161.001 and that termination is in the best interest
of his child. Id.Here, the Department filed its petition on February 10, 2020. Approximately
one week later, on February 18, 2020, E.S.S. drafted a letter to the district clerk in
which he declared, “I am the biological father to [Z.A.].” E.S.S. also stated in the
letter, “I would like to keep my rights to raise my son.” The pro se letter was filed
into the case on February 21, 2020, and the final hearing was held on February 8,
2021. The trial court declared both in open court and in its order of termination that,
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“after being served with citation in this suit, [E.S.S.] did not respond by timely filing
an admission of paternity . . . .” We conclude, however, that E.S.S.’s letter
constituted a timely admission of paternity, and the trial court erred in finding
otherwise and in not adjudicating E.S.S. as Z.A’s father. See Estes, 773 S.W.2d at
802; TEX. FAM. CODE § 160.623(b).
To terminate an adjudicated parent’s rights under section 161.001, the trial
court must find both that termination is in the child’s best interest and that one or
more of the statutory predicate grounds for termination have been satisfied. In re
Z.N., 602 S.W.3d at 543. The Department alleged that E.S.S. had committed
numerous acts and omissions under section 161.001. See TEX. FAM. CODE §
161.001(b)(1)(C), (D), (E), (H), (O), (Q). However, the Department did not offer
any evidence that E.S.S. committed the acts or omissions alleged under section
161.001. On appeal, the Department cites only evidence purportedly showing that
termination was in Z.A.’s best interest. This, however, is insufficient to terminate an
adjudicated father’s rights under section 161.001. See In re Z.N., 602 S.W.3d at 543.
As previously discussed, the Department focused primarily on disproving
E.S.S.’s paternity, rather than terminating his parental rights. “The paternity of a
child having a presumed, acknowledged, or adjudicated father may be disproved
only by admissible results of genetic testing excluding that man as the father of the
child or identifying another man as the father of the child.” TEX. FAM. CODE §
160.631(b). The trial court was required to adjudicate E.S.S. as Z.A.’s father in light
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of his timely admission. See TEX. FAM. CODE § 160.623(b). Thus, to the extent the
trial court concluded that E.S.S. was not Z.A.’s father—as reflected in its termination
of “the parent-child relationship, if any exists or could exist”—such a conclusion
was in error because the Department offered no genetic testing results to disprove
E.S.S.’s paternity. We sustain E.S.S.’s second issue.
CONCLUSION
E.S.S. moved for a continuance on the grounds that a jury trial could not be
safely held before the dismissal deadline and that additional time was needed for
genetic testing to determine paternity. Although his jury demand was untimely, the
trial court abused its discretion by denying appellant’s motion for continuance and
failing to order genetic testing in the facility where appellant was incarcerated.
E.S.S.’s letter filed with the clerk shortly after the Department filed its petition
constituted an admission of paternity. Thus, the trial court erred in terminating his
parental rights for failure to file a timely admission of paternity and in failing to
adjudicate E.S.S. as Z.A.’s father on this basis. Having sustained both of E.S.S.’s
issues on appeal, we reverse the trial court’s order and remand the case for further
proceedings consistent with this opinion. Such proceedings on remand shall include
the trial court ordering genetic testing of E.S.S. to be conducted at a time and place
accessible to E.S.S.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
210126F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF Z.A., A On Appeal from the 59th Judicial
CHILD District Court, Grayson County,
Texas
No. 05-21-00126-CV Trial Court Cause No. FA-20-0213.
Opinion delivered by Justice Partida-
Kipness. Justices Pedersen, III and
Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion, which include ordering genetic testing of
E.S.S. to be conducted at a time and place accessible to him.
Judgment entered August 6, 2021.
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