IN THE INTEREST OF v. <<

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Court of Appeals of Texas, San Antonio.

IN THE INTEREST OF R.R.C., a Child

No. 04-17-00306-CV

Decided: October 04, 2017

Sitting: Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

MEMORANDUM OPINION

Appellant R.C. appeals the trial court's order terminating his parental rights to his child, R.R.C. Appellant contends the evidence was legally and factually insufficient to support the trial court's finding with regard to the statutory ground for termination and its finding that termination was in the child's best interest. In addition, he contends he was not given reasonable notice of the resetting of the trial date. We affirm the trial court's order.

BACKGROUND

The Department of Family and Protective Services (“the Department”) filed its original petition for conservatorship of three children, A.R.C., R.R.C., and Z.L.C., and for termination of their parents' parental rights on May 26, 2016. Subsequent DNA testing excluded Appellant as the father of A.R.C. and Z.L.C. Thus, it was determined that Appellant was the biological father of only R.R.C., who was four years old at the time of trial.

The termination hearing commenced on May 4, 2017. Appellant was not present, and his attorney's announcement of “not ready” was overruled by the trial court. The State first called the Department caseworker, Miguelina Wooten. Wooten testified that in January 2016, L.V., the mother of the children at issue, delivered a baby who tested positive for methadone. Mother admitted to the use of heroin and methadone during her pregnancy with Z.L.C. The children were placed on a “safety plan” and the Department did not seek removal of the children until May 2016 when allegations of physical abuse, sexual abuse, and neglectful supervision by the parents surfaced.

As to Appellant, Wooten testified that he received and signed the family service plan prepared by the Department and that he was currently not in compliance with his court-ordered service plan. She elaborated that he completed “a couple of things on his service plan, but he stopped services” around the Christmas holidays. Wooten specified that Appellant failed to provide proof of employment, did not complete a psychological evaluation, and did not start therapy. Appellant had not maintained significant contact with R.R.C., last visiting her in February 2016. According to Wooten, he had not provided emotional or financial support for the child. All three children were living in a foster-adopt home at the time of trial.

In closing, counsel for the Department argued that it was in the child's best interest that parental rights be terminated. She stated that Appellant “did a little bit and kind of stopped in February. Significant drug issues, criminal activity. ․ Didn't work any type of plan.” She asked that the child be kept with her current foster family, who planned to adopt all three children. At the conclusion of the bench trial, the trial court found that Appellant's parental rights to R.R.C. should be terminated pursuant to Texas Family Code section 161.001(b)(1)(N) and (O), and that termination of the parent-child relationship was in the best interest of the child. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(N), (O); 161.001(b)(2) (West Supp. 2016). Appellant was the only party to appeal the termination order.

STANDARD OF REVIEW

To terminate parental rights pursuant to section 161.001, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See id. § 161.001; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “ ‘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 (West 2014).

In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must “look at all the evidence 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 at 266. “[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. “A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id.

In reviewing the factual sufficiency of the evidence to support the termination of parental rights, a court “must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” Id. “A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” Id. “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id.

STATUTORY TERMINATION GROUNDS

Appellant challenges the sufficiency of the evidence to support the trial court's finding that he constructively abandoned the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N). Appellant does not challenge the finding that he failed to comply with the provisions of a court order establishing the actions necessary to obtain R.R.C.'s return. See id. § 161.001(b)(1)(O). Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d at 362. “ ‘If multiple predicate grounds are found by the trial court, we will affirm based on any one ground because only one is necessary for termination of parental rights.’ ” In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.) (quoting In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.)). Because Appellant does not challenge the trial court's second predicate finding which can support the order of termination, we need not review the sufficiency of the evidence to support the other ground. In re K.W., 335 S.W.3d at 769-70; In re D.P.R.V., No. 04-09-00644-CV, 2010 WL 2102989, at *1 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.). We thus overrule Appellant's first issue.

BEST INTEREST

There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, “the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest.” TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016). In determining whether a child's parent is willing and able to provide the child with a safe environment, the court should consider: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id. § 263.307(b).

Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.

The foregoing factors are not exhaustive, and “[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). “A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest.” Id.

In this case, the evidence showed that Appellant failed to complete the majority of his family service plan, aside from attending domestic violence courses. A failure to complete service plans can be one of a number of the acts or omissions by a parent that are relevant to a best-interest analysis. See In re K.F., 402 S.W.3d 497, 507 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); In re A.B., 269 S.W.3d 120, 129 (Tex. App.—El Paso 2008, no pet); see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (noting a parent's failure to complete a service plan supports a finding that termination is in the child's best interest). The caseworker testified that Appellant had not shown proof of employment and had not maintained contact with the child in the months leading up to trial. Therefore, the trial court could have believed that Appellant had not demonstrated a willingness to reunite with and to parent his child.

In contrast, the trial court could have believed the children were currently in a safe environment with the individuals seeking custody. See Holley, 544 S.W.2d at 372. R.R.C. was living with a foster family who also had possession of her two sisters—to whom she was bonded—and the family planned to adopt all three girls. Having reviewed the record, we hold the evidence

is sufficient to support the trial court's finding that termination was in the child's best interest. We therefore overrule Appellant's second issue.

NOTICE

Finally, Appellant argues he was not given reasonable notice of the resetting of the trial date. In suits affecting the parent-child relationship, including termination proceedings, procedures for contested hearings “shall be as in civil cases generally.” TEX. FAM. CODE ANN. § 105.003 (West 2014) (procedure for contested hearing); see also id. § 101.032 (West 2014) (suit affecting parent-child relationship includes suit for termination of parent-child relationship). Under rule 245, Texas Rules of Civil Procedure, the parties must be given “notice of not less than forty-five days” of a first setting for trial. TEX. R. CIV. P. 245. However, a case previously set for trial may be reset with “any reasonable notice.” See In re R.M.R., No. 04-09-00253-CV, 2009 WL 4668899, at *3 (Tex. App.—San Antonio Dec. 9, 2009, pet. denied) (mem. op.) (holding that rule 245 does not require forty-five days' notice of a subsequent setting); Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (same). A party may waive an objection to lack of notice in compliance with rule 245 if it proceeds to trial and fails to object to the lack of notice. In re J.(B.B.) M., 955 S.W.2d 405, 408 (Tex. App.—San Antonio 1997, no pet.); Fifteen Thousand One Hundred Ninety Six Dollars v. State, No. 03-16-00015-CV, 2016 WL 6833102, at *2 (Tex. App.—Austin Nov. 17, 2016, no pet.) (mem. op.).

Here, Appellant was appointed counsel on May 26, 2016. Appellant was present for the full adversary hearing on June 6, 2016 at which time a status hearing was set for July 27, 2016. Appellant was not present at the July 27, 2016 status hearing, but counsel was present. At that hearing, the case was set for the initial permanency hearing on November 29, 2016 and the first setting for trial was set for March 23, 2017. Counsel signed the Status Hearing Order and Pre-Trial Scheduling Order and the next day Appellant signed his family service plan.

The record indicates Appellant was present at the November 29, 2016 permanency hearing. At that time, Appellant requested a new attorney, who was appointed on January 10, 2017. At the November 29, 2016 hearing, a permanency hearing was set for February 22, 2017 and the trial date remained set for March 23, 2017.

At the February 22, 2017 hearing, the trial date was reset from March 23, 2017 to May 4, 2017. Appellant and his counsel were present at this time. Thus, Appellant had 70 days' notice of the reset trial date. At this time, the case was also set for mediation on April 27, 2017. Appellant appeared at the mediation.

The morning of trial on May 4, 2017, Appellant did not appear. The case was called again that afternoon and Appellant still was not present. Counsel announced “not ready,” but did not otherwise complain that his client did not have notice of the trial date.

We conclude Appellant waived his notice complaint by failing to object on that ground at trial. See TEX. R. APP. P. 33.1(a); In re J.(B.B.) M., 955 S.W.2d at 408. Even if the error had been preserved, we nonetheless conclude Appellant did receive reasonable notice of the reset trial date. The record shows that Appellant and his counsel were present at the February 22, 2017 permanency hearing at which trial was reset to May 4, 2017. The record thus indicates Appellant had more than 45 days' notice of the trial date. Accordingly, we overrule Appellant's third issue.

CONCLUSION

The trial court's order is affirmed.

Rebeca C. Martinez, Justice