Opinion
NUMBER 13-20-00402-CV
02-11-2021
IN THE INTEREST OF C.M.D., A CHILD
On appeal from the 24th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Justice Silva
The trial court terminated the parental rights of appellant S.G. (Mother) and R.D. (Father) to their daughter C.M.D. By two issues, Mother argues (1) the evidence was not legally or factually sufficient to support the trial court's emergency removal order; and (2) a full adversary hearing was not held within the statutorily required period. See TEX. FAM. CODE ANN. §§ 262.102, 262.201. We affirm.
Father timely filed a notice of appeal pro se, but his appeal has since been dismissed for want of prosecution and failure to comply with a notice from this Court. See In re C.M.D., No. 13-20-00496-CV, 2020 WL 6789339, at *1 (Tex. App.—Corpus Christi-Edinburg Nov. 19, 2020, no pet. h.) (mem. op.); see also TEX. R. APP. P. 5, 38.8(a)(1), 42.3(b), (c).
To protect the identity of the child subject to this suit, we refer to the child and those related to the child by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
I. BACKGROUND
C.M.D. was born on July 2, 2019. C.M.D. is Father's first child and Mother's fourth. The Texas Department of Family and Protective Services (the Department) intervened after it was notified that C.M.D.'s meconium test returned positive for methamphetamines, amphetamines, and marijuana.
Mother has three children not named in the Department's suit affecting the parent-child relationship: 14-year-old A.E., 13-year-old L.E., and 11-year-old B.E. Though Mother still retains conservatorship of A.E., L.E., and B.E., her eldest two children reside with their paternal grandfather, and B.E. lives with his biological father. Mother testified that she had not seen A.E. or L.E. in over five years and only saw B.E. after briefly reconciling with the child's father in early 2019. At the time of trial, Mother was "six, seven" months pregnant and unaware of her specific due date because she had not sought prenatal care.
Dr. Marisol Ortiz, a pediatrician and neonatologist, opined that "because the [child's meconium test] level was somewhat high," Mother's drug use likely occurred "less than three months" prior to delivery.
At the termination hearing on July 27, 2020, Nicole Carver, an investigator with the Department, testified that Mother and Father were placed on a family safety plan prior to C.M.D.'s discharge from the hospital on July 11, 2019, which required, in part, that the parents submit to a drug test and that C.M.D.'s paternal grandparents supervise all contact between the parents and C.M.D. for thirty days. However, when Carver attempted to establish contact with Mother and Father at their listed address on July 17, 2019, she learned that the residence had been vacated. Following multiple attempts to contact Mother and Father, Carver placed the family on the "child safety alert list," and on August 19, 2019, the Texas Department of Public Safety notified the Department that it had made contact with the family following a routine traffic stop.
The Department thereafter initiated emergency removal proceedings, filing its original petition for protection of the child, for conservatorship, and for termination in a suit affecting the parent-child relationship. On August 20, 2019, the trial court signed an emergency order of removal, naming the Department as temporary sole managing conservator of C.M.D., and C.M.D. was placed in foster care. The trial court entered its emergency removal order and set an adversarial hearing for September 2, 2019, pursuant to § 262.201 of the Texas Family Code. See TEX. FAM. CODE ANN. § 262.201(a) (providing that "a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity"). The order, however, included language extending the hearing to September 10, 2019. On September 10, the trial court issued an order extending its original removal order and scheduled an adversary hearing for September 24, 2019. Father then filed a pro se complaint, removing the case to federal court on September 23, 2019, alleging his due process rights were being violated by the State in the underlying trial court cause. On September 24, 2019, the state trial court determined it was without jurisdiction to proceed with the previously scheduled adversary hearing. On October 15, 2019, the federal court signed an order remanding the case back to the state trial court, finding it lacked subject matter jurisdiction to preside. The trial court held an adversary hearing on October 28, 2019, and following the hearing, the trial court issued temporary orders continuing the Department as C.M.D.'s temporary managing conservator. C.M.D. remained in foster care throughout the pendency of this case.
The order stated in part: "Notice is given to Respondents [S.G.] and [R.D.] that this cause is set for a full adversary hearing on MONDAY, SEPTEMBER 2, 2019[,] AND SHALL BE EXTENDED TO TUESDAY, SEPTEMBER 10, 2019[,] AT 9:00 A.M."
As part of their family service plan, Mother and Father were required to attend parenting classes and individual counseling and undergo psychological evaluations, random drug testing, and a drug and alcohol assessment. Due to allegations of domestic violence, Father was also ordered to attend a batterer's intervention program. By the time of the termination hearing, however, Mother and Father had not attended a single program or evaluation appointment. Mother had also refused the Department's twenty-eight requests for drug testing, and Father had refused twenty-three requests—two of which were separately ordered by the trial court.
On the day of the termination hearing, when asked whether she would submit to a urinalysis test if she was ordered to, Mother responded, "I'm not—I don't have an answer for that." Mother testified that while the Department has been involved in her life since her first child was an infant, she could "not remember" if it was because she and the child's father tested positive for cocaine. Mother stated that she only smoked marijuana and "maybe" used cocaine "when [she] was younger," and she then provided conflicting testimony regarding her methamphetamine use. Mother first testified she admitted to using methamphetamine and marijuana during her pregnancy with C.M.D. because the Department "threatened to take [her] daughter from [her] . . . and it made [her] say things [she] didn't mean." Mother then testified, "I used that [sic] methamphetamines at that time that [sic] before I got pregnant." However, Mother also stated she had been using a "vape pen" to smoke, and she had "no knowledge" the pen contained methamphetamine.
Mother further testified to two altercations involving Father while she was pregnant with C.M.D. in March 2019, but she denied that he had physically assaulted her in either incident. Though Mother said Father's behavior in 2019 prompted her to change her number, she denied that he harassed her, her family, or her friends, or that he was otherwise abusive. Mother defended Father's actions against the Department and stated he is "not the person that everybody is putting him out to be." Mother also testified that she depended on Father's "financial abilities to keep [herself] fed, clothed[,] and housed," although they had struggled to retain housing and moved five times in the preceding year.
Rachael Bade, an investigator with the Department, testified that Mother told her that when she was six months pregnant with C.M.D. in March 2019, she had left Father, reconciled with the father of her eldest children, and was trying "to work on getting her children back." Mother also reportedly claimed that Father had been harassing her and her family.
Tyler Kennemer, a patrol officer with the Victoria Police Department, testified he was dispatched to a disturbance on March 26, 2019, involving Mother and Father. Kennemer testified Mother said Father had "struck her with the back of his fist" while they were arguing about "ending their relationship." Kennemer testified he "observed [Mother] to have redness to her right eye and a little bit of swelling."
Several caseworkers testified that Father repeatedly displayed unprofessional, aggressive behavior toward the Department—which culminated in a stalking charge in January 2020.
On August 25, 2020, the trial court signed a final termination order and found, in part, Mother had engaged in conduct or placed the child with others who engaged in conduct that endangered the child's well-being, Mother had failed to comply with provisions of the court's order, and termination was in the child's best interest. See id. § 161.001(b)(1)(E), (O), (2). This appeal followed.
II. DISCUSSION
"Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases." In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, "termination proceedings must be strictly scrutinized." Id.; see In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); but see In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) ("[T]he rights of natural parents are not absolute; protection of the child is paramount. . . . The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))). To terminate parental rights, the movant must prove by clear and convincing evidence that (1) the parent committed one or more statutory predicate acts or omissions, and (2) termination is in the child's best interest. See TEX. FAM. CODE ANN. §§ 101.007, 161.001(b); see also In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). "'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. "This heightened proof standard carries the weight and gravity due process requires to protect the fundamental rights at stake." In re A.C., 560 S.W.3d at 630.
Mother concedes on appeal that the evidence was both legally and factually sufficient to warrant termination under both subsections of family code § 161.001(a)(1), and to support a finding that termination was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (O), (2). She instead argues (1) there was not legally or factually sufficient evidence to support the trial court's emergency removal order, and (2) a full adversary hearing was not held within the statutorily required period. See id. §§ 262.102, 262.201.
A. Temporary Emergency Removal Order
Chapter 262 of the family code sets forth the procedures and substantive requirements for the Department to take possession of a child when necessary to protect that child's health and safety. In re J.M., 549 S.W.3d 330, 332-33 (Tex. App.—Texarkana 2018, no pet.). Under this chapter, the Department is granted authority in urgent circumstances to remove a child from his or her home without prior notice to the parents. See TEX. FAM. CODE ANN. §§ 262.101, 262.104. This emergency authority is subject to judicial oversight. See id. §§ 262.102, 262.106-.107. Pursuant to § 262.102, "a court may, without prior notice and a hearing, issue a temporary order for the conservatorship of a child under [§] 105.001(a)(1) or a temporary restraining order or attachment of a child authorizing a governmental entity to take possession of a child in a suit brought by a governmental entity," provided that the trial court finds:
(1) there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse;Id. § 262.102. Following the issuance of an emergency removal order without prior notice or hearing, a full adversarial hearing must be held "not later than the 14th day after the date the child was taken into possession by the governmental entity, unless the court grants an extension." Id. § 262.201. The provision additionally mandates the child's return to the parent "unless" the evidence adduced at a full adversary hearing suffices to "satisfy a person of ordinary prudence and caution" that, among other things, "the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal . . . ." Id. § 262.201(g)(2); see In re Tex. Dep't of Fam. & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re M.N.M., 524 S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); but see In re C.T., 491 S.W.3d 323, 328 (Tex. 2016) (orig. proceeding) (noting that "[§] 262.201 does not specify who bears the burden of proof on the legal-entitlement issue"). The adversary hearing affords the parents the opportunity to present evidence on their own behalf, hear and challenge the Department's evidence, and challenge the Department's right to retain the children it previously took into custody under an ex parte order. In re E.D.L., 105 S.W.3d 679, 688 (Tex. App.—Fort Worth 2003, pet. denied).
(2) continuation in the home would be contrary to the child's welfare;
(3) there is no time, consistent with the physical health or safety of the child and the nature of the emergency, for a full adversary hearing under Subchapter C; and
(4) reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child.
A parent may challenge the trial court's removal through a mandamus proceeding. See In re Tex. Dep't of Fam. & Protective Servs., 255 S.W.3d at 615. Once a trial court renders a final judgment, any issue concerning its earlier removal orders becomes moot. See id.; In re E.R.W., 528 S.W.3d 251, 257 (Tex. App.—Houston [14th Dist.] 2017, no pet.) ("Because the trial court since has rendered a final judgment, Mother's complaints about the temporary orders authorizing emergency removal are moot."); In re J.F.G. III, 500 S.W.3d 554, 559 (Tex. App.—Texarkana 2016, no pet.) (finding complaints regarding aggravated circumstances findings in temporary removal orders moot following a final order); In re A.K., 487 S.W.3d 679, 683 (Tex. App.—San Antonio 2016, no pet.) ("[A] temporary order is superseded by entry of a final order of termination, rendering moot any complaint about the temporary order."); In re J.D.S., 494 S.W.3d 387, 389 (Tex. App.—Waco 2015, no pet.) (finding that the "trial court's decision to allow the Department to maintain custody of a child following an adversary hearing is reviewable, if at all, through a petition for writ of mandamus"); see also In re B.U.H., No. 13-18-00622-CV, 2020 WL 7074358, at *7 (Tex. App.—Corpus Christi-Edinburg Dec. 3, 2020, no pet. h.) (mem. op.) ("[A]ny complaint about the temporary orders is now moot."); In re A.H., No. 09-19-00025- CV, 2019 WL 2220306, at *3 (Tex. App.—Beaumont May 23, 2019, pet. denied) (mem. op.) (finding that complaints on direct appeal regarding the temporary order authorizing the removal of the children are moot).
Here, the Department filed its petition for emergency removal of C.M.D. on August 20, 2019, and the trial court entered its emergency removal order naming the Department as temporary sole managing conservator of C.M.D. and set an adversarial hearing on September 2, 2019. See TEX. FAM. CODE ANN. § 262.201(a). For reasons explained supra, the trial court did not hold an adversary hearing until October 28, 2019, wherein the trial court issued temporary orders. Mother did not thereafter challenge the trial court's temporary orders by mandamus, and the trial court has since issued its final order of termination. Thus, any complaint regarding the sufficiency of the evidence supporting the temporary orders now on appeal is moot. See In re Tex. Dep't of Fam. & Protective Servs., 255 S.W.3d at 615.; In re E.R.W., 528 S.W.3d at 257; see also In re B.U.H., 2020 WL 7074358, at *7. We overrule Mother's first issue.
B. Statutory Time Requirements
Similarly, Mother's second argument—that a full adversary hearing was not held within the statutorily required "14th day after the date the child was taken into possession" by the Department—is also moot. See TEX. FAM. CODE ANN. § 262.201. If the hearing is not held within the time frame required by statute, the remedy is to compel the trial court by mandamus to promptly conduct the hearing. See In re Justin M., 549 S.W.3d 330, 333-34 (Tex. App.—Texarkana 2018, orig. proceeding) ("Because the purposes of the initial hearing were satisfied by the full adversary hearing and Justin failed to seek relief in the interim, Justin's petition on these grounds is moot."); In re J.M.C., 109 S.W.3d 591, 595 (Tex. App.—Fort Worth 2003, orig. proceeding) (per curiam); see also In re K.L.M., No. 14-19-00713-CV, 2019 WL 6001170, at *3 (Tex. App.—Houston [14th Dist.] Nov. 14, 2019, orig. proceeding) (mem. op.) (providing that, even though four weeks passed between the initial hearing and the adversary hearing, the relator's challenges to the trial court's orders prior to the adversary hearing were moot because the purposes of the initial hearing were satisfied by the full adversary hearing and relator failed to seek relief in the interim); In re Tex. Dep't of Fam. & Protective Servs., No. 01-18-00717-CV, 2018 WL 4701693, at *6 (Tex. App.—Houston [1st Dist.] Oct. 2, 2018, orig. proceeding) (mem. op.) (observing that "courts have recognized that mandamus is the remedy when a trial court does not hold an adversary hearing within the statutory time requirements"). We overrule Mother's second issue.
III. CONCLUSION
We affirm the trial court's judgment.
CLARISSA SILVA
Justice Delivered and filed on the 11th day of February, 2021.