Opinion
No. 05-16-00950-CV
12-06-2016
IN THE INTEREST OF H.S., A MINOR
On Appeal from the 302nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-13-22239-U
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Schenck
Opinion by Justice Fillmore
Father appeals the trial court's final decree terminating his parental rights to his child, H.S., contending the evidence is legally and factually insufficient to support the statutory grounds for termination found by the trial court. We affirm the trial court's judgment.
Background
After H.S. was born on August 26, 2013, he and his mother (Mother) lived with his maternal grandmother (Grandmother). On December 4, 2013, Grandmother filed an original petition, seeking to be named H.S.'s conservator. In an affidavit attached to the petition, Grandmother stated that, on December 1, 2013, Mother and Father were involved in a physical altercation while in possession of H.S., and the police were called to Father's home. The police used a Taser on Father and took him to "Parkland Psychiatric Ward," while Mother was arrested on an outstanding warrant. The Department of Family and Protective Services (the Department) was notified about the incident, and a caseworker met with Grandmother and Mother. Grandmother stated she was concerned about H.S.'s emotional and physical safety if he had unsupervised contact with Mother and believed H.S. would be in imminent danger if he visited Father. Grandmother requested that Mother and Father be denied access to H.S. or, alternatively, allowed only supervised visitation with him.
Father appeared at a temporary hearing on December 18, 2013, at which Grandmother was named H.S.'s temporary sole managing conservator and Mother and Father were named temporary possessory conservators. The associate judge who conducted the hearing ordered that Grandmother supervise Mother's visitation with H.S. and Father's visitation was to be supervised at Hannah's House "for as many hours as can be scheduled, 1 x weekly." The associate judge noted she would consider other visitation arrangements for Father "if alternative supervisors are presented." Mother and Father were both ordered to pay child support to Grandmother of $100 per month, effective February 1, 2014. The associate judge noted the Department would continue its investigation into Grandmother's home.
On August 1, 2014, the trial court signed an order in Grandmother's suit affecting the parent-child relationship. Neither Mother nor Father were present at, or participated in, the hearing preceding the entry of the order. In the order, the trial court established the parent-child relationship between Father and H.S. based on DNA testing that had been performed, named Grandmother the sole managing conservator of H.S., and named Mother and Father possessory conservators of H.S. Mother was ordered to pay child support to Grandmother. Because Father was incarcerated, he was not ordered to pay child support. Mother was given possession of H.S. for an hour and a half every Wednesday and Thursday, with the visit to be supervised by Grandmother. Father was given possession of H.S. every first and third Saturday for no longer than two hours with the visit to be supervised at Hannah's House.
The Department received a referral on June 23, 2015, of neglectful supervision of H.S. by Grandmother at a hotel where the two were staying temporarily. The referral stated that Grandmother, a former heroin user, was currently using methamphetamine, and H.S. was "running up and down the hotel hallways" while in Grandmother's care. Grandmother and H.S. had left the hotel, but the Department eventually located them. After Grandmother tested positive for methamphetamine use, the Department took possession of H.S. on July 20, 2015, and filed a combined motion to modify the trial court's prior order and original petition for protection of a child, for conservatorship, and for termination on July 21, 2015, seeking to be named H.S.'s managing conservator.
On August 12, 2015, the trial court entered temporary orders requiring Grandmother to participate in a psychological evaluation, counseling, drug treatment, "NA/AA mtgs," a drug/alcohol assessment, and random drug and alcohol urinalysis, and to follow through with any recommendations made by the service providers. Grandmother was also allowed weekly visits with H.S. The Department completed a family service plan for Grandmother with a goal of reuniting H.S. with Grandmother.
Father sent a letter to "whom it may concern" on September 1, 2015, which was filed as his answer to the Department's petition. Father stated he had been served with the Department's petition, was incarcerated, and "was unaware of the allegations brought against [Mother] and [Grandmother]." He requested "all information" about H.S.'s affairs and that H.S.'s care be given to "my father [J.C.P.] until I'm release[d] or settle my affairs." Father provided no contact information for J.C.P. The trial court appointed an attorney ad litem to represent Father.
The case was mediated on May 27, 2016. Grandmother was present in the courthouse during the mediation, and Father participated in part of the mediation by telephone. During the mediation, Father proposed several names of relatives who could take custody of H.S. However, Father had limited or no contact information for those individuals. Mother did not participate in the mediation. Grandmother signed a mediated settlement agreement (the MSA), in which she agreed to the termination of her conservatorship of H.S., and the Department agreed Grandmother would be allowed quarterly visits with H.S. while he was in the Department's care and visits twice a year with H.S. after his adoption, if the adoptive parents agreed to the visits.
At the trial of the case on July 18, 2016, the Department sought to enforce the MSA against Grandmother and to terminate Mother's and Father's parental rights to H.S. Before trial commenced, the trial court noted it had been informed by the Dallas County Sheriff's Department that, after Father was transferred from prison to the Dallas County Jail for the trial of this case, he had been involved in three incidents and there were safety concerns in placing Father in the "holdover" and then bringing him to the civil courthouse without an exact time the trial would start. The trial court, on its own motion, ruled that Father would participate in the trial by telephone from the Dallas County Jail. Mother did not appear at trial, and counsel represented she had learned on the morning of trial that Mother was in the Collin County Jail.
Although the State "bench filed" the MSA and the trial court reviewed the agreement during the trial, the MSA is not in the appellate record.
According to Brittney Collins, the caseworker assigned to H.S., Grandmother completed most of the required services, but continued to test positive for methamphetamine and amphetamine usage. Mother did not attend all scheduled visitations with H.S., provided no support for H.S. while he was in the Department's care, and did not identify anyone with whom the Department could place H.S. During the pendency of the case, Collins had not had any communication with Father, and Father had neither visited H.S. nor paid the Department any money to support H.S. According to Collins, Father had not, either personally or through counsel, contacted her with suggestions on how Father could be supportive of H.S. or could care for H.S. Collins acknowledged that Father had been incarcerated the entire time the case was pending.
Collins testified that H.S. was currently in foster care and had adjusted well. The Department's plan was for H.S. to be adopted by his foster parents. In Collins's opinion, termination of Mother's and Father's parental rights and Grandmother's conservator rights was in H.S.'s best interest.
Grandmother testified she had an opiate addiction, but was receiving care and "had been off of opiates for over fifteen years." She also admitted she had positive drug tests during the pendency of the case. Grandmother knew about Mother's "serious drug problem," Father's "ongoing drug problem," and Father's "ongoing criminal issues." According to Grandmother, in the past, Father broke into her house and also attempted to assault her. Grandmother testified she was not in the position to care for H.S. at the present time. She believed her "situation," particularly as it related to Mother and Father, was potentially dangerous for H.S. Grandmother's goal was to make sure H.S. was safe, and she agreed to terminate her conservatorship of H.S. so that he could adopted.
Father testified he last saw H.S. in December 2014, when he "got out briefly." He claimed Grandmother charged him $300 a day to see H.S., and he was currently in prison for a "case [he] caught for trying to earn money to pay [Grandmother]" Father testified the "case" was for a robbery that occurred on January 11, 2015, he had been incarcerated since that time, and he received a two-year sentence for the offense. Father testified he would be released on "May 1st."
Father admitted he had not provided any support for H.S., but claimed his incarceration made it impossible for him to do so. According to Father, during the mediation, he provided the Department with the names of individuals with whom H.S. could be placed. However, he did not have addresses for any of the individuals and did not have telephone numbers for some of the individuals at the time of the mediation. Father claimed he had contacted some of these individuals about caring for H.S., but they did not know how to contact the Department.
Father denied he had a drug problem or broke into Grandmother's house. He testified Mother was living with Grandmother at the time and invited him to the house. Mother told him to "sneak" through the window because Grandmother did not approve of him or his family. Father denied he had any "incidents" during the time he was in the Dallas County Jail.
The trial court adopted the MSA and terminated Grandmother's conservatorship rights to H.S. The trial court found Mother had failed to support H.S. in accordance with her ability during a period of one year ending within six months of the date of the filing of the Department's petition, had constructively abandoned H.S., and had demonstrated an inability to provide H.S. with a safe environment and found termination of Mother's parental rights was in the best interest of H.S. The trial court found Father (1) voluntarily left H.S alone or in the possession of another, not the parent, without expressing an intent to return and without providing for the adequate support of the child, and had remained away for a period of at least three months; (2) voluntarily left H.S. alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months; (3) failed to support H.S. in accordance with his ability during a period of one year ending within six months of the date of the filing of the Department's petition; and (4) knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for H.S. for not less than two years from the date of the filing of the Department's petition, see TEX. FAM. CODE ANN. § 161.001(b)(1)(B), (C), (F), (Q) (West Supp. 2016), and that termination of Father's parental rights was in the best interest of H.S. See id. § 161.001(b)(2).
Analysis
In two issues, Father challenges the legal and factual sufficiency of the evidence to support the statutory grounds for termination found by the trial court. Father does not challenge the trial court's finding that termination of his parental rights was in H.S.'s best interest.
Standard of Review
Because the fundamental liberty interest of a parent in the care, custody, and control of his child is one of constitutional dimensions, Troxel v. Granville, 530 U.S. 57, 65-66 (2000), involuntary parental termination proceedings must be strictly scrutinized. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). In parental termination cases, due process requires the petitioner to justify termination by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). Evidence is clear and convincing if it "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); E.N.C., 384 S.W.3d at 802.
However, parental rights are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right."); see also In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
On appeal, we apply a standard of review that reflects the elevated burden of proof at trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014) (factual sufficiency); In re J.F.C., 96 S.W.3d 256, 264-66 (Tex. 2002) (legal sufficiency). When the legal sufficiency of the evidence is challenged in a case involving the termination of parental rights, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could form a firm belief or conviction that its finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing J.F.C., 96 S.W.3d at 266). Giving deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, we assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean that a court must disregard all evidence that does not support the finding. Id. If, after conducting a review of the record evidence, we determine no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.
When conducting a factual sufficiency review of a decree terminating parental rights, we give "due deference" to the factfinder's findings and do not supplant the fact finder's judgment with our own. A.B., 437 S.W.3d at 503; In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). We determine whether, on the entire record, "the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A.B., 437 S.W.3d at 502 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. at 503. "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. (quoting J.F.C., 96 S.W.3d at 266).
Termination of Parental Rights
A trial court may terminate the parent-child relationship if the factfinder determines (1) a parent committed one or more of the enumerated statutory acts in section 161.001(b)(1) of the family code, and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). In this case, the trial court found Father voluntarily left H.S. alone or in the possession of another not the parent, without expressing an intent to return and without providing for the adequate support of the child, and remained away for a period of at least three months, TEX. FAM. CODE ANN. § 161.001(b)(1)(B); voluntarily left H.S. alone or in the possession of another without providing for the adequate support of the child, and remained away for a period of at least six months, id. § 161.001(b)(1)(C); failed to support H.S. in accordance with Father's ability during a period of one year ending within six months of the date of the filing of the Department's petition, id. § 161.001(b)(1)(F); and knowingly engaged in criminal conduct that resulted in Father's conviction for an offense and confinement or imprisonment and inability to care for H.S. for not less than two years from the date of filing the Department's petition. Id. § 161.001(b)(1)(Q).
We first consider Father's complaint that the evidence is legally and factually insufficient to support the trial court's finding pursuant to section 161.001(b)(1)(C) of the family code that Father voluntarily left H.S. alone or in the possession of another without providing for the adequate support of the child and remained away for a period of at least six months. "This ground is commonly characterized as the 'abandonment' of a child by a parent." In re T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *4 (Tex. App.—Houston [1st Dist.] Dec. 13. 2012, no pet.) (mem. op.). The six month period must be a period of at least six consecutive months. Id.
Father argues the State failed to prove he voluntarily left H.S. with another person because Grandmother obtained conservatorship of H.S. pursuant to a court order. Grandmother filed a petition seeking conservatorship of H.S. on December 4, 2013, due to her concerns about his emotional and physical safety if left with Father and Mother, and was named sole managing conservator of H.S. on August 14, 2014. Father appeared in the litigation and participated in a DNA test ordered by the trial court to establish paternity. However, Father made no request to be named managing conservator of H.S. and did not oppose Grandmother's request to be named H.S.'s managing conservator. See Jordan v. Dossey, 325 S.W.3d 700, 727 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (affirming termination of mother's parental rights based on abandonment of child when mother voluntarily relinquished child, instituted no civil court proceedings seeking child's return for over six months, and made no "earnest effort" to regain custody of child). "[T]he controlling issue should be whether the parent was aware of, consented to, and participated in the arrangement for the child's support." In re R.M., 180 S.W.3d 874, 878 (Tex. App.—Texarkana 2005, no pet.). Father's conduct in the conservatorship proceedings indicated his agreement that Grandmother would care for H.S. See id. Accordingly, the State established that Father voluntarily left the child in the possession of Grandmother.
Father relies on In re J.K.H., No. 06-09-00035-CV, 2009 WL 2948575, at *3 (Tex. App.—Texarkana Sept. 16, 2009, no pet.) (mem. op.), in which the court determined that a father who left his children in the care of their mother pursuant to a default divorce decree naming the mother as the sole managing conservator of the children had not "voluntarily" left the children in the care of another. We conclude the evidence in this case that Father participated in the litigation, did not oppose Grandmother's request to be named sole managing conservator, and did not seek to be named H.S.'s managing conservator makes it akin to R.M., in which the parent was aware of, consented to, and participated in the arrangement for the child's support.
Father next argues the evidence is legally and factually insufficient to support a finding that he failed to provide adequate support for H.S. because he made arrangements for H.S.'s support by participating in the litigation that led to Grandmother being named H.S.'s managing conservator. While an abandoning parent is not required to "personally support" the child, Holick, 685 S.W.2d at 21, the parent must "make arrangements" for the child's adequate support. In re C.L.B., No. 10-13-00203-CV, 2014 WL 702798, at *10 (Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.). Although we agree with Father that, under certain circumstances, a parent may make arrangements to adequately support his child by agreeing to allow another person to be named the conservator of the child, see Holick, 685 S.W.2d at 21; R.M., 180 S.W.3d at 878, Grandmother did not remain in possession of H.S. Rather, the Department removed H.S. from Grandmother's care on July 20, 2015, due to a report that she was failing to adequately supervise H.S. and because tests confirmed Grandmother was using illegal drugs.
Father was aware by September 1, 2015 that H.S. was in the Department's care, but made no attempt to regain custody of H.S.; did not provide to the Department, prior to the mediation on May 27, 2016, the names or contact information of any family members who could potentially care for or support H.S.; did not contact the Department about H.S.; did not make any payment to the Department for H.S.'s support; and made no arrangements for any support of H.S. Accordingly, while H.S. was in the Department's care from September 1, 2015, through May 27, 2016, a period of more than six consecutive months, Father neither personally supported H.S. nor made arrangements for H.S.'s adequate support. See C.L.B. 2014 WL 702798, at *10-11.
See also In re S.C., No. 07-98-00213-CV, 1999 WL 98125, at *4 (Tex. App.—Amarillo Feb. 26, 1999, no pet.) (not designated for publication) (evidence that mother was "aware of the change of circumstances and involvement of the Department" and "took absolutely no action to provide any support or care for her children" sufficient to support termination under section 161.001(b)(1)(C)).
Finally, Father contends the only evidence of his "remaining away" from H.S. was that he was incarcerated throughout the case, and incarceration does not constitute abandonment as a matter of law. We agree that incarceration, standing alone, does not constitute "abandonment" of a child for purposes of termination of parental rights. See In re T.B.D., 223 S.W.3d 515, 519 (Tex. App.—Amarillo 2006, no pet.). However, the parent's incarceration can be a factor in abandonment cases. Id.; see also T.L.S., 2012 WL 6213515, at *5; Jordan v. Hancock, 508 S.W.2d 878, 881 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ) ("The fact of imprisonment should not constitute abandonment as a matter of law. Neither should it preclude a finding of abandonment." (interpreting prior statute)).
The evidence in this case showed that Father was incarcerated in February 2014, after Grandmother filed the petition for conservatorship of H.S. and before the trial court signed the order granting Grandmother conservatorship of H.S. Father testified he was "briefly" released from incarceration and saw H.S. one time in December 2014. Father was arrested on an aggravated robbery charge on January 11, 2015, and remained incarcerated through the date of the termination trial.
H.S. was almost three years old at the time of the termination trial, and Father had been incarcerated for most of H.S.'s life. There was no evidence that H.S. had a relationship with Father. See In re D.LS., No. 02-10-00366-CV, 2011 WL 2989830, at *6 (Tex. App.—Fort Worth 2011, no pet.) (memo. op.). Further, while he was incarcerated, Father made no effort to contact H.S. or to communicate with him in any way. The evidence established that, at the time of the termination trial, Father had remained away from H.S., with no attempts at communication, for a period of more than six consecutive months. See In re K.M.B., 91 S.W.3d 18, 26 (Tex. App.—Fort Worth 2002, no pet.) (sufficient evidence to establish father remained away for a period of at least six months when he had seen child only three times since she was born, failed to schedule visitation, and failed to write to child while he was in prison).
See also In re A.D.R., No. 05-98-00629-CV, 2000 WL 1016719, at *3 (Tex. App.—Dallas July 25, 2000, no pet.) (not designated for publication) (evidence that father was in prison for the first four years of child's life, had only sporadic contact with child after his release from prison, and was incarcerated at time of termination hearing was sufficient to support termination of parental rights under section 161.001(b)(1)(C)); see also In re A.T.C., No. 07-08-0258-CV, 2008 WL 5204747, at *3 (Tex. App.—Amarillo Dec. 12, 2008, no pet.) (mem. op.) (evidence that father had basically no contact with child, who was eight years old at the time of the termination hearing, after child was one year old and provided no support for child sufficient to support termination under section 161.001(b)(1)(C)). --------
We conclude the evidence is both legally and factually sufficient to support the trial court's finding that Father voluntarily abandoned the child without providing adequate support and remained away for a period of six months. See In re B.T., 954 S.W.2d 44, 49-50 (Tex. App.—San Antonio 1997, pet. denied) (evidence father did not attempt to contact the child, the Department, or foster parents, who had given father their contact information, nor provided support for child was sufficient to support termination under section 161.001(b)(1)(C)). Because a finding of only one ground for termination alleged under section 161.001(b)(1) is sufficient to support a judgment of termination, it is not necessary to address Father's remaining arguments regarding the other three predicate grounds contained in the judgment of termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We resolve Father's first and second issues against him.
We affirm the trial court's judgment terminating Father's parental rights to H.S.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 160950F.P05
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DF-13-22239-U.
Opinion delivered by Justice Fillmore, Justices Francis and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee the State of Texas recover its costs of this appeal from appellant Shawn Sprinkle. Judgment entered this 6th day of December, 2016.