Opinion
NO. 09-11-00367-CV
03-29-2012
IN THE INTEREST OF K.D.S.
On Appeal from the County Court at Law Number Three
Montgomery County, Texas
Trial Cause No. 08-10-09827 CV
MEMORANDUM OPINION
K.D.S.'s grandparents appeal a judgment denying termination of the parental rights of K.D.S.'s father. Prior to K.D.S.'s birth, appellants filed a suit concerning K.D.S.'s two older siblings, C.A.S. and W.C.S. Appellants sought appointment as joint managing conservators, and requested that the mother of the children be appointed the children's sole possessory conservator. Appellants sought paternity testing to determine whether appellee K.S.S. was the children's father. Appellants requested that he not be granted rights of conservatorship or possession.
After K.D.S. was born, the trial court granted appellants' motion to appoint an amicus attorney. The trial court appointed appellants temporary joint managing conservators of K.D.S. with exclusive right to establish her primary residence. The trial court appointed the parents as temporary joint possessory conservators of K.D.S. Appellee consistently exercised his rights of possession with K.D.S.
Appellants filed a petition for termination of appellee's rights as to K.D.S.'s siblings which stated appellants' intent to adopt K.D.S.'s siblings. K.S.S. filed an answer and a counter-petition alleging that he is the children's father. He requested paternity testing. He requested that appellants be appointed joint managing conservators of K.D.S., that he be appointed sole possessory conservator of the children, and that additional temporary orders be signed granting him additional periods of possession of K.D.S. Paternity tests revealed that K.S.S. was the biological father of K.D.S. and one of her siblings, W.C.S. K.D.S.'s mother, A.B.H., voluntarily relinquished her rights as to all three children. Paternity testing showed K.S.S. was not C.A.S.'s biological father and the lawsuit as to C.A.S. was severed. Appellants requested termination of K.S.S.'s parental rights as to W.C.S. and K.D.S., and sought to adopt W.C.S. and K.D.S.
The jury charge included the following grounds for terminating K.S.S.'s parental rights as to W.C.S. and K.D.S.:
1. [K.S.S.] voluntarily left the children in the possession of Petitioners without providing adequate support of the child or children and remained away for a period of time exceeding six months; and/orTex. Fam. Code Ann. § 161.001(1)(A), (B), (C), (F) (West Supp. 2011). The jury found that appellants proved by clear and convincing evidence at least one of the grounds for termination, and that termination was in the best interest of the children. The amicus attorney filed a motion to disregard the jury findings, a motion to set aside the jury verdict, a motion for judgment n.o.v., and a motion for reconsideration as to the termination of K.S.S.'s parental rights to K.D.S. The amicus attorney requested that the trial court find that there was no evidence to support a jury finding by clear and convincing evidence that at least one of the alleged termination grounds had occurred regarding K.D.S. The trial court granted the motion. Appellants challenge the judgment with four issues on appeal.
2. [K.S.S.] failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of this petition; and/or
3. [K.S.S.] voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; and/or
4. [K.S.S.] voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without
providing for the adequate support of the child, and remained away for a period of at least three months.
The evidence for termination must be clear and convincing. Tex. Fam. Code Ann. § 161.001 (West Supp. 2011); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). "'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 2008). In order for parental rights to be involuntarily terminated, the trier of fact must find by clear and convincing evidence (1) that the parent committed one of the statutory grounds found in section 161.001(1) of the Family Code, and (2) that termination is in the children's best interest. Tex. Fam. Code Ann. § 161.001; see also Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict when there is no evidence upon which the jury could have made its findings. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); see also Gallas v. Car Biz, Inc., 914 S.W.2d 592, 593 (Tex. App.—Dallas 1995, writ denied).
In their first issue, appellants argue that the court had no authority to act on the post-judgment motion filed by the amicus attorney. Appellants contend that a motion to disregard a jury finding or to render a judgment n.o.v. can only be filed by a party. They maintain that an amicus attorney is not a party, and the trial court erred in setting aside the jury's verdict because the amicus had no authority to file the motion. See generally O'Connor v. O'Connor, 245 S.W.3d 511 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
In a private termination suit, the court appoints an amicus attorney or an attorney ad litem unless the court finds that the child's interests will be represented adequately by a party whose interests are not in conflict with the child's interests. See Tex. Fam. Code Ann. § 107.021(a-1) (West 2008). The role of the amicus attorney is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child. Tex. Fam. Code Ann. § 107.001(1) (West 2008). An amicus attorney considers the impact on the child in preparing the attorney's presentation of any of the child's expressed objectives of representation to the court, investigates the facts of the case to the extent appropriate, obtains and reviews copies of relevant records concerning the child, participates in the conduct of the litigation to the same degree as an attorney for a party, takes any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings, encourages settlement and the use of alternative means of dispute resolution, and reviews and decides whether to sign any proposed or agreed order affecting the child. Id. § 107.003(1)(B)-(I). In carrying out its appointed role, an amicus attorney may:
(A) request clarification from the court if the role of the attorney is ambiguous;Tex. Fam. Code Ann. § 107.003(3).
(B) request a hearing or trial on the merits;
(C) consent or refuse to consent to an interview of the child by another attorney;
(D) receive a copy of each pleading or other paper filed with the court;
(E) receive notice of each hearing in the suit;
(F) participate in any case staffing concerning the child conducted by an authorized agency; and
(G) attend all legal proceedings in the suit.
In O'Connor, the court considered whether to address an appellate brief filed by the amicus attorney in a SAPCR suit. See O'Connor, 245 S.W.3d at 512, 515. The court explained that it would not consider the brief:
The amicus attorney is appointed specifically to assist the court. And the plain language of the statutory definition of amicus attorney can mean only that the amicus attorney assists the court that appointed her. To whatever extent the trial court has a role during an appeal of the final decree, the amicus attorney may assist that court. But the amicus attorney represents neither an appellant nor an appellee and therefore has no basis for filing a brief in the appeal. Nothing in the Family Code indicates that the amicus attorney should participate in an appeal.O'Connor, 245 S.W.3d at 515 (citations omitted). The court's holding does not directly answer the question presented here, however, which concerns the role of the amicus attorney in the trial court.
Because the amicus attorney is "to provide legal services to assist the court," the trial court is, in effect, the amicus attorney's client for a limited purpose. But the trial court is not a party either to the underlying case or in this appeal. Therefore it is as inappropriate for the amicus attorney to file a brief as it would be for the trial court to file one.
Appellants rely on In re Collins in arguing that an amicus attorney's powers are limited to those enumerated by statute. In re Collins, 242 S.W.3d 837 (Tex. App.— Houston [14th Dist.] 2007, orig. proceeding). In that case, the appellate court held that section 107.003(1)(G), which requires the amicus to "take any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings[,]" did not authorize an amicus attorney to expedite a SAPCR by using powers not conferred by statute. Id. at 847. There, the appellate court held that an amicus attorney's powers did not include acting as a child's next friend in other lawsuits, entering into contracts on a child's behalf, or participating in other litigation on the child's behalf. See id. at 846-48; see also Tex. Fam. Code Ann. § 107.003(1)(G).
The motion filed by the amicus attorney in this case stated the motion was for the purpose of protecting K.D.S.'s best interest. The amicus attorney believed the motion was necessary to fulfill her role in assisting the trial court that appointed her. Section 107.003(1)(F) authorizes an amicus attorney to "participate in the conduct of the litigation to the same extent as an attorney for a party[.]" Tex. Fam. Code Ann. § 107.003(1)(F). Appellants do not cite any cases specifically holding that the filing of a post-judgment motion would not be included in this authority. Issue one is overruled.
In their second issue, appellants argue the trial court erred in granting the motion to disregard the jury's findings as to K.D.S. because the court allegedly used the wrong standard in making its decision. The court's letter notifying the parties of the ruling stated that the trial court had reconsidered the amicus attorney's motion to disregard and was granting the motion as to K.D.S., and would sign a judgment denying termination of K.S.S.'s parental rights as to K.D.S. The letter stated that "there was insufficient evidence to support a ground for termination[.]" Presumably, the trial court meant legally insufficient evidence. Regardless, the letter was not the court's final ruling. The final order stated that "[a]fter considering the motion, evidence and argument of counsel, the Court finds that the Motion to Disregard Jury Findings as to the child [K.D.S.] should be and is hereby granted." The amicus attorney's motion granted by the court asserted there was no evidence or no legally sufficient evidence to support termination. Issue two is overruled.
In their third and fourth issues, appellants argue there was legally sufficient evidence to support at least one ground for termination, and there was legally sufficient evidence that the termination was in K.D.S.'s best interest. In issue four, appellants also contend that because the amicus attorney only objected to the wording of the third and fourth alleged grounds for termination and K.S.S. had no objections to the charge as submitted, we should review the legal sufficiency of the evidence under the charge submitted. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).
The first, second, and fourth alleged grounds require proof by clear and convincing evidence that K.S.S. failed to support K.D.S. See Tex. Fam. Code Ann. § 161.001(1)(B), (C), (F). K.S.S. testified that he learned in early December 2009 that A.B.H., mother of K.D.S. had turned K.D.S. over to appellants. K.S.S. was ordered to pay child support under the temporary orders signed on February 1, 2010. Appellants testified that K.S.S. had paid the court-ordered child support. There was no evidence presented that K.S.S.'s court-ordered child support was in arrears. The trial court reasonably concluded there was no evidence to support the jury's finding as to termination on these three grounds.
The remaining alleged ground of termination was that K.S.S. voluntarily left K.D.S. alone or in the possession of another not the parent and expressed an intent not to return. See Tex. Fam. Code Ann. § 161.001(1)(A). Evidence was presented that A.B.H., the mother of the child, promised K.S.S. that she would not relinquish possession of K.D.S. to appellants. Without K.S.S.'s knowledge, the mother turned K.D.S. over to appellants in November 2009. After K.S.S. was released from jail that month, A.B.H. continued to represent to K.S.S. that she still had possession of K.D.S. K.S.S. testified that A.B.H. told him that she would bring K.D.S. to K.S.S.'s mother's house after he got out of jail. In December 2009, and around the time that K.D.S. learned K.S.S. was in appellants' possession, the ad litem appointed to locate K.S.S. delivered copies of the pleadings in the SAPCR suit. K.S.S. acknowledged paternity and began visitation under the temporary orders signed on February 1, 2010. The evidence showed that K.S.S. learned that A.B.H. had relinquished possession of K.D.S. to appellants after appellants added K.D.S. to the SAPCR suit. He acknowledged paternity of K.D.S. and at a hearing less than two months after he learned of the relinquishment, he was awarded temporary visitation rights and ordered to pay child support. He filed a counter-petition requesting paternity testing and that he be named possessory conservator of K.D.S. He consistently exercised visitation rights and paid the court-ordered child support. The trial court reasonably concluded there was no evidence to support a finding that K.S.S. voluntarily left K.S.S. alone or in appellants' possession and expressed an intent not to return. Issues three and four are overruled. The trial court's judgment is affirmed.
AFFIRMED.
________________________
DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.