Opinion
No. 04-14-00621-CV
02-03-2016
IN THE INTEREST OF C.J.T., a Child
MEMORANDUM OPINION
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 7,848
Honorable Paul Canales, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice REVERSED AND REMANDED
Maria and Cesario G. appeal the trial court's denial of their petition to adopt their grandchild, C.J.T., arguing the trial court abused its discretion by finding that adoption was not in C.J.T.'s best interest. We agree and reverse and remand this case for further proceedings.
BACKGROUND
In 2007, when C.J.T. was about five years old, his parents and sibling died in a car accident. C.J.T. then went to live with his maternal grandmother, Maria, who the trial court appointed as his permanent guardian, and his maternal grandfather, Cesario. In 2011, Maria and Cesario filed a petition to adopt C.J.T., and C.J.T.'s paternal grandparents, Irma and Francisco, intervened to contest the adoption.
After Maria and Cesario filed their petition to adopt C.J.T., Irma and Francisco requested access to C.J.T. Although the trial court granted Irma and Francisco access, this court conditionally granted Maria and Cesario's petition for writ of mandamus because, under section 153.434 of the Family Code, Irma and Francisco's petitions for access were prohibited by statute. In re Gonzalez, No. 04-14-00485-CV, 2014 WL 4922933, at *2-3 (Tex. App.—San Antonio Oct. 1, 2014, orig. proceeding) (mem. op.) (citing TEX. FAM. CODE ANN. § 153.434 (West 2014) ("A biological or adoptive grandparent may not request possession of or access to a grandchild if: (1) each of the biological parents of the grandchild has: (A) died . . . and (2) the grandchild . . . is the subject of a pending suit for adoption")). --------
The case proceeded to a bench trial. Javier Ramirez, a licensed clinical social worker who was ordered to conduct a social study regarding C.J.T.'s adoption, testified he conducted two social studies. Ramirez recommended that Maria and Cesario be permitted to adopt C.J.T. so long as C.J.T. retained his father's surname and so long as Irma and Francisco had access to C.J.T. Ramirez's overall assessment was that Maria and Cesario "were very loving, very caring, [and] provid[ed] a safe environment." Ramirez "found [C.J.T.] to be feeling comfortable, safe, secure, and happy." Ramirez testified Maria and Cesario told him that they wanted to adopt C.J.T. because they loved him.
Ramirez also testified that during his meeting with Irma, "[s]he recalled how she used to care for [C.J.T.], how he used to stay with her while his parents ran errands, and how she and her children had an established relationship with [C.J.T.]. She acknowledged that [in] the five years since the parents' death, her grandson established a more trusting and loving relationship with his maternal grandparents, but it does not mean that she and her children do not love him." Ramirez stated that if Maria and Cesario denied Irma and Francisco access to C.J.T., he would have to "revisit" his adoption recommendation.
Ramirez further testified Francisco and Irma stated they did not object to the adoption but did not want Maria and Cesario to change C.J.T.'s surname or deny them access to C.J.T. Ramirez stated Maria and Cesario never told him they wanted to change C.J.T.'s surname. Ramirez also stated Maria and Cesario allowed Francisco to have access to C.J.T., but then Francisco stopped seeking access and that Irma once took C.J.T. without Maria's permission. Ramirez agreed it was "critical" for C.J.T. to know his father's side of the family, explaining, "I think it's of utmost importance because of the fact that they represent a part of his life."
A copy of Ramirez's report from his social studies was admitted into evidence. Ramirez reported C.J.T. "[o]verall is healthily [sic], nicely groomed and very much feels safe, secured, comfortable living with his maternal grandparents. He stated he loves both his maternal grandparents. . . . [C.J.T.] speaks excellent English and communicates with his Grandparents in 'limited Spanish.' He is proud of his home and his grandparents." The report outlined Maria's monthly income from social security and Cesario's income from his job as an oil field supervisor. A trust fund was set up for C.J.T. as part of a settlement from the accident resulting in his parents' deaths. C.J.T. also has health and dental insurance and "owns his parent's [sic] home as well as an empty lot located south of his parent's [sic] home." Ramirez reported Maria and Cesario's home "is sufficient enough to house" them as well as C.J.T.
Ramirez reported he could find no criminal history for either Maria or Cesario, but Francisco "wanted to share a copy of his FBI rap sheet but . . . had given it to his attorney." The report also contained a list of Irma's arrests. Between 1991 and 2011, Irma had been arrested eight times for various charges, including theft, possession of marijuana, unauthorized use of a vehicle, interference with rights of a guardian, falsely holding herself out as a lawyer, tampering with or fabricating physical evidence, and making a false report to a police officer. Ramirez was able to find no disposition for most of the charges, but his report indicated Irma received probation for the unauthorized use of a motor vehicle and for the three counts of falsely holding herself out as a lawyer.
Francisco, C.J.T.'s paternal grandfather, testified that he "favored" Maria having permanent guardianship of C.J.T., but expressed concern about his access and his family's access to C.J.T. Francisco stated, "I feel betrayed, because I'm -- I am not part of that . . . . My family, my children they don't see my grandson. Nobody sees anybody. . . . We are all hurt. The whole family is damaged . . . ." Francisco stated Maria and Cesario allowed him to have access to C.J.T., but denied him access one time when C.J.T. was out of town. Francisco testified the only restriction Maria and Cesario gave him was that he was not permitted to "include" Irma during his time with C.J.T. Francisco testified he believed adoption was not in C.J.T.'s best interest.
The videotaped deposition of Dr. Gilbert Martinez, who evaluated C.J.T., was admitted into evidence. Dr. Martinez stated his impression was that C.J.T. "was doing very well emotionally . . . . There was no evidence of acting out" and "he didn't really show a lot of evidence for pessimism or self-doubt or other negative depressive symptoms that sometimes affect children." Dr. Martinez testified Maria was "very nurturing, very concerned about [C.J.T.]'s well-being and his health, and she was very cooperative with us." He agreed Maria appeared to be a competent, well-qualified, and appropriate caregiver. Dr. Martinez stated he had "a very strong opinion that [C.J.T.]'s in a very healthy and supportive environment that is positively fostering his development." He also stated it was clear C.J.T. was "afraid of losing his [maternal] grandparents . . . and he has a fear of losing basically the life that he's living right now. . . . [C.J.T.] is a very smart kid, and he knows . . . what's going on with some of the legal issues his grandparents are having, paternal and maternal, and . . . he's scared. . . . He's fearful that . . . he may be taken away from what are essentially his parents now, his grandparents . . . ."
Maria testified she and Cesario had been married for forty-one years and C.J.T., for whom she is the full-time caregiver and guardian, had lived with them for six years. She stated she and Cesario desired to adopt C.J.T. because they wanted "for him to be more secure [and] so he can have a stable environment in a house." She explained that adoption is necessary, instead of remaining C.J.T.'s permanent guardian, "because he needs to feel the love that we have for him, and he can feel protected and lov[ed]." Maria also testified C.J.T. expressed to her several times that he desired to be adopted. Maria stated she understood that if she and Cesario adopted C.J.T., the proceedings Irma filed for access to C.J.T. "would stop." Maria testified the proceedings Irma had filed caused Maria to incur expenses and caused stress and "trauma" in the house.
Maria stated she did not want Irma to see C.J.T. because C.J.T. "doesn't want to see her." She explained Irma had once kidnapped C.J.T. by taking him to Houston without permission and that C.J.T. feared Irma because he remembered the incident. Maria also testified that Francisco once told her "that if he want[ed], he would take [C.J.T.] and [she would] never see him again." Although Maria stated she never restricted Francisco from seeing C.J.T., Maria said she once refused to let Francisco see C.J.T. "because a week before he . . . was screaming at [her] in [her] house" and then "15 minutes later he came back with the police." She also testified that in the past two years, two members of C.J.T.'s father's side of the family (Irma and Francisco's children) had seen C.J.T. Maria explained that after she, Francisco, and Irma reached an agreement about where they could visit with C.J.T., Francisco and Irma asked to visit only a few times. Maria stated she would never keep C.J.T. from his grandparents if he wanted to see them.
Cesario testified he wanted to adopt C.J.T. so C.J.T. "can feel more secure with us." He stated he encouraged C.J.T. to see Francisco because he was his grandfather, but C.J.T. did not want to see Francisco and Cesario did not know why. Cesario further testified C.J.T. responded "bad" when he was required to visit Irma because he "started crying. He didn't want to go. . . He would get angry . . . ."
Jesse Hernandez, a family therapist, testified C.J.T. is "a very bright young man, very intelligent, very forthcoming, witty" and "that [C.J.T.] is very attached to his . . . maternal grandparents." He stated C.J.T. suffered from anxiety and vicarious trauma as a result of hearing stories about his parents dying. Hernandez also stated C.J.T. had three fears: "Number one is that Grandmother Irma will kidnap me. Number two, something will happen to my grandparents, Cesario and Maria. And number three, I worry about school because I've missed a lot of school because of court." Hernandez opined as to the importance of C.J.T. maintaining a relationship with his father's side of the family:
Now, do I think it's important that [C.J.T.] know his paternal side of the family? Of course. That's a big piece of the puzzle, you know. He needs to know his father's side of the family. He needs to be able to understand what his father's side of the family is like. His father was going to be a Border Patrol Agent. His uncle is a pharmacist. They're not evil people. He's got to know that other people care for him. It is important.Hernandez did not deny that "there was a lot of very positive things about [C.J.T.'s] maternal grandparents" and he testified the "psychosocial stressors," such as his school's standardized testing and having to go to court, were "transient." He elaborated, "They're not going to be there for a long time, but they do create some anxiety." Hernandez also testified he had "from six to ten" therapy sessions with Irma "to teach her some cognitive behavior therapy" and he "did the same thing with [Francisco]."
Irma testified C.J.T. was living with her when the car accident occurred. With regard to the kidnapping allegation, she stated she never intended to kidnap C.J.T. and explained:
[O]ne day -- it was a Saturday -- I went by and I saw [C.J.T.] playing outside, so I stopped, and I -- I said -- he was alone playing outside, and I knocked on the door, and [Maria] came out. And I said, "[Maria], can I take [C.J.T.]? I haven't seen him -- we haven't seen him for -- for a while since the accident.". . . And she said, "Oh, yes, yes, you can take him. Do you need some clothing?" And I said, "No, I have enough clothing for him at home." I said, "But I -- I will bring him back the day before school starts again -- vacation." And she said, "That's fine, that's fine. Just call me." I said, "That's fine." So my -- from there my sons took him to the -- my son and my daughter, they took him to Laredo to the movies, and then I had to go out of town to Houston -- that's where I was working at -- just for a couple of days and come back. And when I was working, that's when the office -- the law office
that I was working for received a call from the Sheriff's Office that there was a warrant for my arrest.Irma further testified she had a "good relationship" with C.J.T., her court-ordered visits with C.J.T. were "good," her side of the family misses C.J.T., and when she asked C.J.T. whether he was afraid of her, C.J.T. responded, "No, Grandma, no. I -- I'm okay. . . I know this is going to change one day, and I'm not going to, you know, I'm going to be okay." Irma stated she objected to the adoption because she feared she would be unable to maintain her relationship with C.J.T.
The trial court found adoption was not in C.J.T.'s best interest and accordingly denied Maria and Cesario's petition to adopt C.J.T. The trial court did not sign findings of fact and conclusions of law. Maria and Cesario appeal.
STANDARD OF REVIEW
"The decision as to whether or not to grant an adoption is within the discretion of the trial court, which may not be set aside except for abuse." See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam). "To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable." In re J.G., 412 S.W.3d 83, 87 (Tex. App.—Fort Worth 2013, no pet.). When findings of fact and conclusions of law are not properly requested and none are filed, we must affirm the trial court's judgment if it can be upheld on any legal theory supported by the evidence. In re W.E.R., 669 S.W.2d at 717. We may not consider any comments made by the trial judge as a substitute for findings of fact and conclusions of law. Id. at 716. "For this analysis, we consider whether the court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion." In re J.G., 412 S.W.3d at 88. The trial court judges the credibility of the witnesses, and we may not substitute our judgment for that of the trial court. In re W.E.R., 669 S.W.2d at 716-17; In re J.G., 412 S.W.3d at 89.
"Legal and factual sufficiency are not independent grounds of error in this adoption context, but they are relevant factors in deciding whether the trial court abused its discretion." In re J.G., 412 S.W.3d at 88. "When a party challenges the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In a "matter of law" challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id.; see In re D.D. T., No. 11-04-00022-CV, 2005 WL 283579, at *2-3 (Tex. App.—Eastland Jan. 31, 2005, no pet.) (mem. op.) (applying legal sufficiency standard to determine whether denial of adoption was an abuse of discretion). If there is no evidence to support the finding, we will examine the entire record in order to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co., 46 S.W.3d at 241. "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disregard contrary evidence unless a reasonable finder of fact could not. Id.
"When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem., 46 S.W.3d at 242; see In re J.G., 412 S.W.3d at 90. In reviewing a challenge that a finding is against the great weight and preponderance of the evidence, we consider and weigh all of the evidence and may set aside the verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); see In re DDT, 2005 WL 283579, at *2-3 (applying factual sufficiency standard to determine whether denial of adoption was an abuse of discretion).
C.J.T.'S BEST INTEREST
The sole objection to the adoption was that adoption would allow Maria and Cesario to deny C.J.T.'s father's side of the family access to C.J.T. Maria and Cesario contend section 153.434 of the Family Code "should be construed as precluding a trial court from denying an adoption based on concern that the adoption will cut off a grandparent's ability to seek court-ordered possession and access to the grandchild adoptee." Section 153.434 provides:
A biological or adoptive grandparent may not request possession of or access to a grandchild if:
(1) each of the biological parents of the grandchild has:
(A) died;
(B) had the person's parental rights terminated; or
(C) executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates the Department of Family and Protective Services, a licensed child-placing agency, or a person other than the child's stepparent as the managing conservator of the child; and
TEX. FAM. CODE ANN. § 153.434 (West Supp. 2015). Irma responds the court should construe section 153.434 in accordance with its plain meaning.
(2) the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent.
The primary objective when construing a statute is to ascertain and give effect to the legislature's intent. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Courts seek to determine that intent "first and foremost" from the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). Courts apply the plain meaning of the text unless a different meaning is supplied by legislative definition or is apparent from context, or the plain meaning leads to absurd results. Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 669 (Tex. 2010).
During the pendency of the adoption proceeding, the conditions set out in section 153.434 were satisfied. See In re Gonzalez, 2014 WL 4922933, at *3. Both of C.J.T.'s biological parents died and C.J.T. was the subject of a pending suit for adoption. The plain language of section 153.434 provides that if these conditions are satisfied, then "[a] biological or adoptive grandparent may not request possession of or access to a grandchild." TEX. FAM. CODE ANN. § 153.434. The plain language of section 153.434 does not provide that a trial court may not consider whether an adoption would likely result in a child's loss of access to his family and whether or not that is in the child's best interest.
Section 162.016 requires the trial court to determine whether adoption is in the child's best interest. TEX. FAM. CODE ANN. § 162.016 (West 2014). The maintenance of a child's relationship with his family can be relevant to determining the child's best interest. See Nelson v. Nelson, No. 01-13-00816-CV, 2015 WL 1122918, at *4 (Tex. App.—Houston [1st Dist.] Mar. 12, 2015, pet. filed) (mem. op.) (citing Lenz v. Lenz, 79 S.W.3d 10, 16-17 (Tex. 2002)). The plain language of section 153.434 does not provide otherwise. See TEX. FAM. CODE ANN. § 153.434. However, maintaining family relationships solely out of "considerations of sympathy and solitude" regarding the family members is not relevant to determining what is in the child's best interest. Oldfield v. Campbell, 191 S.W.2d 897, 899 (Tex. Civ. App.—Waco 1945, no writ).
Maria and Cesario argue they established adoption was in C.J.T.'s best interest as a matter of law based on Ramirez's report, and the trial court improperly speculated about Irma and Francisco's future access to C.J.T. However, there was evidence that Maria had denied Francisco access to C.J.T., Maria and Cesario did not want Irma to be around C.J.T., and they would not force C.J.T. to see family members he did not want to see. Hernandez testified C.J.T., who suffered from vicarious trauma from losing his parents in a tragic accident and from anxiety about losing maternal grandparents, needed to know he had other family members who cared for him. Furthermore, Irma testified she had a good relationship with C.J.T. This evidence, when disregarding all contrary evidence, would enable reasonable and fair minded people to conclude adoption was not in C.J.T.'s best interest. See City of Keller, 168 S.W.3d at 827; In re J.G., 412 S.W.3d at 88-89. We hold there is legally sufficient evidence to support the trial court's finding and the trial court had sufficient information upon which to exercise its discretion. See In re J.G., 412 S.W.3d at 88-89.
Maria and Cesario argue, alternatively, the trial court erred in applying its discretion because its finding is against the great weight and preponderance of the evidence. The following facts were undisputed: Maria and Cesario love and care for C.J.T. and provide him with a safe, stable environment in which C.J.T. is happy and feels safe and comfortable. Maria and Cesario desired to adopt C.J.T., and C.J.T. desired to be adopted. Maria and Cesario allowed members from C.J.T.'s father side of the family, including the children of Irma and Francisco, to spend time with C.J.T.
There was also evidence that Maria and Cesario allowed Francisco to spend time with C.J.T., and denied Francisco's requests to spend time with C.J.T. on two occasions; once when C.J.T. was out of town and once after Francisco confronted Maria at her home and then called the police. C.J.T.'s anxiety was transient and caused (at least in part) by the proceedings filed by Irma and Francisco for access to C.J.T. The only evidence about time Irma spent with C.J.T. was when C.J.T. lived with her prior to his parents' death nearly six years before trial, the incident when Irma took C.J.T. to Houston, and when Irma obtained court-ordered visits. Although the trial court could have credited Irma's testimony that C.J.T. was not scared of her, there was undisputed evidence that C.J.T. did not desire to see or be forced to visit with her. Considering and weighing all of the evidence, the trial court's finding that adoption was not in C.J.T.'s best interest is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See In re J.G., 412 S.W.3d at 88-89; Cain, 709 S.W.2d at 176. Therefore, we hold the trial court erred in the application of its discretion. See In re J.G., 412 S.W.3d at 90.
CONCLUSION
We reverse the trial court's judgment denying Maria and Cesario's petition to adopt C.J.T. and remand the case for further proceedings. See, e.g., In re D.D.T., 2005 WL 283579, at *3 (reversing and remanding after holding trial court abused its discretion in denying adoption petition); Oldfield, 191 S.W.2d at 899 (same).
Luz Elena D. Chapa, Justice