Opinion
No. 04-17-00043-CV
06-14-2017
IN THE INTEREST OF R.R.C. and R.C., Children
MEMORANDUM OPINION
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA00336
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
This is an appeal from a judgment terminating appellant's parental rights to his two children. On appeal, appellant asserts the trial court erred by denying his attorney's "not ready" announcement and continuing with trial in appellant's absence. Appellant also challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate statutory grounds and on whether termination of his parental rights was in the children's best interest. Because we conclude the trial court did not err in denying counsel's "not ready" announcement and that the evidence is legally and factually sufficient to support the trial court's findings, we affirm the trial court's judgment.
The trial court also terminated the mother's parental rights. She did not appeal.
BACKGROUND
On February 16, 2016, the Department of Family and Protective Services ("the Department") filed its original petition for conservatorship of the two children who are the subject of this appeal and for termination of their parents' parental rights. On April 5, 2016, the trial court held its sixty-day hearing and pre-trial conference at which both parents appeared in person and through their attorneys. After finding appellant had reviewed and understood the family service plan, the trial court approved the service plan and made it an order of the court. The trial court set the initial permanency hearing for August 9, 2016, and set trial on the merits for November 17, 2016. Appellant did not appear in person at the August 9 initial permanency hearing or at the November 17 trial on the merits. At the start of both hearings, the trial court denied appellant's attorney's announcement of "not ready."
When the petition was filed, R.R.C. was approximately six years old and R.C. was approximately four years old.
At the trial on the merits, the State first called the Department caseworker, Valerie Mendiola. Mendiola testified the children's mother told her that appellant had held her hostage under a bridge and the couple "had domestic violence issues." Mendiola said appellant has been "missing" throughout the case, she has had no contact with him, and the only information she had about him came from appellant's mother who said he was incarcerated. Appellant did not complete any of the following requirements of his service plan: a drug assessment, parenting classes, individual therapy, a psychological evaluation, a domestic violence class, or obtain stable housing. Appellant has been in and out of jail during the pendency of the case, and has not visited his children.
The children currently live with a foster family who wishes to adopt them. Mendiola said the children are doing well, are involved in age-appropriate activities, attend church, take trips with their foster family, and engage in play therapy. According to Mendiola, the children's needs are being met. Mendiola believed termination of appellant's parental rights was in the children's best interest because the foster family would continue to meet the children's needs, and the children have a "tight bond" with their foster parents. The foster parents have consistently provided a safe home environment with guidance and supervision. Mendiola said that before the children were removed, the parents had left them in the care of the children's older half-sister, and the parents did not intend to return. While with their sister, the children were exposed to sexual abuse and violence by the sister's boyfriend.
Mendiola was unsure about the older sister's age, but believed she was over the age of eighteen. The mother later testified her eldest daughter was twenty years old.
The State next called the Department investigator and the person who removed the children from their home, Monica Montoya. Montoya said the children originally came to the Department's attention when the youngest child, R.C., was seen at a hospital and it was discovered she had a broken arm, as well as other healed fractures. At the time, R.C. was three years old and in the care of her older sister who was not aware of R.C.'s previous injuries. R.C. made no outcry, but R.R.C., who was then five years old, made a sexual abuse outcry.
Montoya did not know if appellant had a drug history. Montoya said the Department had received prior domestic violence referrals on appellant and the mother. The mother admitted to Montoya a March 2015 incident of violence that happened in the children's presence while the family lived in a one-room hotel room. Both parents stayed occasionally at Haven for Hope.
The next witness was the children's mother, S.M., who testified she met appellant in 2006 and they moved in together in 2009. She then became aware of appellant's "mental instabilities." S.M. said appellant controlled her by not letting her work, leave the house, or see friends and family. She stated appellant smoked synthetic marijuana. Appellant hurt her many times during their relationship, the latest by punching her in the mouth, which required hospitalization. Appellant never hurt the children but they witnessed his yelling and screaming, and his pushing her against the wall. S.M. did not believe appellant was unsafe around the children. She said, "He's not a problem with my children. Me and him were the problem, and we're no longer together." She did not want appellant's parental rights terminated.
At the close of testimony, the trial court took judicial notice of the record, minus any hearsay, and the CASA report. According to the initial CASA report submitted before the August 9 hearing, neither parent had contact with the Department since the April 5, 2016 hearing; neither parent had attended any visits with their children or engaged in any services; the parents' whereabouts were unknown; and the children had stated they did not want to return home to the parents. R.R.C. calls her parents by their first names and does not call them mom and dad. R.C. stated she is "done with [appellant] and S.M.]," and she only refers to her parents by their first names. The CASA report stated appellant was homeless.
DENIAL OF "NOT READY"
In his first issue on appeal, appellant asserts the trial court erred by denying his trial counsel's "not ready" announcement. At the start of the trial on the merits, the trial court asked for appearances:
Appellant's attorney: . . . [Appellant] is not present. I found out yesterday that he's in custody. He's in Bexar County Jail, so I'll announce not ready, Your Honor.
Court: All right.
Counsel: It's my understanding he's been ordered, but he's not here yet.
Court: Well, I can understand your legal decision not to bring him. I guess he's in jail for charges that are pending, and he may not want to incriminate himself, but you're here to present evidence and challenge evidence, and we're going to go forward.
Counsel: Your Honor, just for the record straight [sic], I did not make the legal decision not to have him ordered. I didn't find out until late yesterday afternoon that he was there.
Court: How long has he been in jail[?] . . . .
State: . . . He was booked on November the 8th.
Court: All right. Today is November 17th. Mom and [appellant] were at the 60-Day when this trial [date] was given. So there's a duty on everybody there. Nonetheless, these children aren't going to pay the price for that, and we're going forward. . . . Either way; either he didn't order it or somebody didn't. It doesn't matter. But [appellant's attorney is] here to present evidence and the children aren't going to pay the price for the delay. . . . Although, I will note that the Court ordered him today. The Court did that today, but apparently there were issues at the jail.
On appeal, appellant asserts the trial court erred by denying his "not ready" announcement because there was more than enough time to reset the trial before the one-year dismissal date in February 2017. Appellant contends resetting the case was in the children's best interest because it would have afforded him more time to be present and involved in any proceedings and/or decisions regarding his children.
We interpret an announcement of "not ready" as a motion for continuance. In re R.F. III, 423 S.W.3d 486, 489 (Tex. App.—San Antonio 2014, no pet.). An application for a continuance may only be granted "for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." TEX. R. CIV. P. 251. If the continuance is requested based on the testimony of an absent person, the party applying for the continuance "shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; [and] the continuance is not sought for delay only, but that justice may be done . . . ." TEX. R. CIV. P. 252. In a termination of parental rights case, an appellate court reviews a trial court's denial of a motion for continuance for an abuse of discretion. In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
In this case, appellant's attorney did not file or present a written motion, verification, or any affidavit or offer of any proof that appellant's testimony was material, or that counsel used due diligence to procure appellant's testimony. Accordingly, the trial court did not abuse its discretion in denying any request for a continuance. In re R.F. III, 423 S.W.3d at 492 (holding same).
On appeal, appellant also asserts the trial court's denial of counsel's "not ready" announcement violated his due process right to participate in a proceeding to terminate his parental rights. Termination of parental rights involves fundamental constitutional rights. In re G.M., 596 S.W.2d 846, 846-47 (Tex. 1980). An inmate's right to be present during court proceedings must be carefully scrutinized because of the importance of the parent-child relationship. In re R.F. III, 423 S.W.3d at 492. However, the right to appear in a civil proceeding is not absolute, and an inmate's right to personally appear must be weighed against the integrity of the correctional system. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Several factors are relevant in the determination of whether to grant an inmate's request for a bench warrant: (1) the cost and inconvenience of bringing the inmate to the court proceeding; (2) the security risk to the court and the public; (3) whether the inmate's claims are substantial; (4) whether the court hearing can reasonably be delayed until the inmate's release; (5) whether the inmate can produce admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or other means; (6) whether the hearing is before a judge or a jury; and (7) the inmate's probability of success on the merits. Id. at 165-66.
A trial court does not have an independent duty to assess these factors; instead, litigants bear the burden "to identify with sufficient specificity the grounds for a ruling they seek," and "a litigant's status as an inmate does not alter that burden." Id. at 166. The inmate has the sole burden to justify the necessity of his presence by producing factual information showing these factors. See id. Appellant contends that because his attorney discovered he was incarcerated only the day before the trial on the merits, there was not sufficient time to satisfy the Z.L.T. factors.
The facts of this case are similar to those in In re D.C.C. wherein trial counsel was unaware the appellant had been transferred to another facility. See In re D.C.C., 359 S.W.3d 714 (Tex. App.—San Antonio 2011, pet. denied). A panel of this court held the appellant did not satisfy her burden of identifying with sufficient specificity the grounds for the ruling she sought; did not provide factual information to the trial court to assess the necessity of her appearance; and did not argue her interest in appearing outweighed the impact on the judicial system. Id. at 717. Therefore, this court concluded the trial court did not err by not making arrangements for the appellant's participation. Id.; see also In re R.F., 423 S.W.3d at 492-93 (relying on In re D.C.C. to conclude trial court's decision to terminate appellant's parental rights in his absence did not violate his due process rights).
Here, the trial court noted appellant was aware of the November 17 date of the trial on the merits, but, apparently, failed to notify his attorney of his incarceration on November 8. At trial, counsel made no argument, much less offered any proof, regarding appellant's need to testify. We also note appellant did not appear at the August 9 initial permanency hearing. Although appellant's attorney claimed he did not know appellant "was going to be unavailable until immediately before trial; [and] thus there was limited opportunity to obtain or provide evidence of the factors recited in In re Z.L.T., [appellant's] attorney could have filed a written motion for continuance or at least made a record of the specific reasons justifying his client's testimony and appearance." In re D.C.C., 359 S.W.3d at 718 (Simmons, J., concurring). Because counsel did not file a continuance or make any record of appellant's need to testify, on this record we must conclude the trial court did not violate appellant's due process rights by denying his "not ready" announcement. See id.
STATUTORY PREDICATE GROUNDS
Parental rights may be terminated only upon proof of clear and convincing evidence that the parent has committed an act prohibited by Texas Family Code section 161.001(b)(1), and that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). If the trial court terminates the parent-child relationship on multiple grounds under section 161.001(b)(1), we may affirm on any one ground because, in addition to finding that termination is in the child's best interest, only one predicate violation under section 161.001(b)(1) is necessary to support a termination decree. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Here, the trial court terminated appellant's parental rights on four predicate grounds under Family Code section 161.001(b)(1)—grounds (D), (E), (N), and (O). On appeal, appellant argues the evidence is legally and factually insufficient to support the trial court's findings that (1) he knowingly placed or knowingly allowed his two children to remain in conditions or surroundings that endangered their physical or emotional well-being; and (2) he engaged in conduct or knowingly placed his children with persons who engaged in conduct that endangered the children's physical or emotion well-being. Appellant's arguments, thus, attack the sufficiency of the trial court's findings on grounds (D) and (E).
Appellant, however, does not attack the sufficiency of the trial court's findings with respect to grounds (N) and (O). By not challenging the sufficiency of the evidence in support of the trial court's findings on grounds (N) and (O), appellant waived any complaint concerning the sufficiency of the evidence to support those findings. See In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.). Therefore, the trial court's termination order is supported by sufficient evidence, and we need not address appellant's challenge to the sufficiency of the evidence in support of the trial court's findings on grounds (D) and (E).
BEST INTEREST
Appellant also challenges the legal and factual sufficiency of the trial court's finding that termination of his parental rights was in his children's best interest. See TEX. FAM. CODE § 161.001(b)(2). We review the legal and factual sufficiency of the evidence under well-established standards of review. See In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).
Under Texas law, there is a strong presumption that the best interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, there is also a presumption that 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 § 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, we consider the factors set forth in Family Code section 263.307(b). We also apply the non-exhaustive Holley factors to our analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). And finally, evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). 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.
Here, both children were still quite young and vulnerable. At the time of the trial on the merits, R.R.C. was six years old and R.C. was four years old. However, both children were old enough to express their desires, which was to not return home to their parents, whom they called by their first names.
The trial court had before it evidence concerning appellant's drug usage, mental health issues, and violent tendencies, which were witnessed by the children. The evidence indicated appellant could not meet the children's current emotional and physical needs, and it was uncertain whether he would ever be able to meet those needs in the future based on his homelessness and his failure to visit the children or engage in any of his service plan requirements. On the other hand, the trial court also had before it evidence that the children thrived in the care of their foster parents who wished to adopt them.
Based on the evidence presented, the trial court could have evaluated many of the factors listed under Family Code section 263.307(b). Additionally, after reviewing the evidence presented, we believe the trial court had ample evidence before it from which it could evaluate many of the Holley factors. Viewing all of the evidence in the light most favorable to the trial court's finding, we conclude the trial court could have formed a firm belief or conviction that terminating appellant's parental rights was in the children's best interest. We, therefore, conclude the evidence was legally sufficient to support the trial court's best interest finding.
On appeal, appellant does not elaborate on his contention that the evidence was factually insufficient to support the best interest finding. Appellant was not present at the trial on the merits, and the evidence presented relevant to the trial court's decision to terminate appellant's parental rights was essentially undisputed. Only the mother testified appellant was "not a problem with" the children. Therefore, we conclude the evidence was factually sufficient to support the trial court's best interest finding.
CONCLUSION
We overrule appellant's issues on appeal and affirm the trial court's Order of Termination.
Karen Angelini, Justice