Opinion
06-22-00012-CV
09-29-2022
IN THE INTEREST OF W.L., A CHILD
Date Submitted: September 28, 2022
On Appeal from the 76th District Court Camp County, Texas Trial Court No. CPS-18-03104
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice.
After M.A. and A.A. suffered injuries consistent with child abuse, they and Father's other child, W.L., were removed from their home by the Department of Family and Protective Services. About one and one-half years later, on February 14, 2022, the trial court entered an order of termination, terminating the parent-child relationship between W.L. and her father pursuant to Grounds D, E, and O., See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). In this appeal, Father asserts that the trial court lacked jurisdiction to terminate Father's parental rights because another district court had continuing, exclusive jurisdiction over W.L., that the trial court lost jurisdiction of this case because it was not properly extended under the Texas Supreme Court's emergency orders, that there was legally and factually insufficient evidence to support the termination of Father's parental rights under Grounds D and E, and that he received ineffective assistance of counsel. Because (1) the trial court had continuing, exclusive jurisdiction over W.L., (2) the trial court properly retained its jurisdiction, (3) Father did not challenge the termination of his parental rights under Ground O or the trial court's best-interest finding, and (4) legally sufficient evidence did not support the trial court's termination of Father's parental rights under Grounds D and E, we affirm that part of the trial court's judgment terminating Father's parental rights to W.L. under Ground O and reverse that part of the trial court's judgment terminating those rights under Grounds D and E.
We refer to the minor children by their initials and to their family members by pseudonyms. See Tex. R. App. P. 9.8.
Father's parental rights to W.L. were terminated in the trial court's cause number CPS-18-03104, which is on appeal under our cause number 06-22-00012-CV. His parental rights to M.A. and A.A. were terminated in the trial court's cause number CPS-20-03563, which is on appeal under our cause number 06-22-00011-CV. The two cases were consolidated for trial.
The Department also sought the termination of the parental rights of W.L.'s Mother. However, the trial court incorporated the terms of a mediated settlement agreement between the Department, W.L.'s Mother, and W.L.'s paternal grandparents, who had intervened in the suit, in its final order. Under the final order and the MSA, W.L.'s paternal grandparents and her maternal grandmother were appointed joint permanent managing conservators of W.L., and W.L.'s Mother was appointed her possessory conservator.
Father also asserted that the termination order violated the Indian Child Welfare Act (ICWA) because proper notifications were not given as required by the ICWA and that there had not been a determination of the child's status under that act. We agreed and abated this appeal to the trial court with instructions to give proper notifications under the ICWA and to determine the status of the child under the ICWA. After proper notices were given and the trial court determined that the child was not an Indian child as defined by the ICWA, the appeal was returned to this Court.
(1) The Trial Court Had Continuing, Exclusive Jurisdiction Over W.L.
The first document in the clerk's record filed in this appeal is a Final Order in Suit Affecting the Parent-Child Relationship in cause number CPS-18-03104, entered November 7, 2018. W.L. was the child who was the subject of that suit, the Department was removed as a managing or possessory conservator of the child, and Father was appointed the sole managing conservator of the child. In the November 7, 2018, final order, the trial court, "having examined the record and heard the evidence and argument of counsel, [found] that [it had] jurisdiction of this case and of all the parties and that no other court [had] continuing, exclusive jurisdiction of this case." No documents filed in cause number CPS-18-03104 before the November 7, 2018, final order appear in the clerk's record filed in this appeal.
On July 27, 2020, the Department filed its Original Petition to Modify Prior Order in Suit Affecting the Parent-Child Relationship in cause number CPS-18-03104 and sought to modify the November 7, 2018, final order and to, inter alia, terminate Father's parental rights to W.L. In its petition to modify the prior order entered in this matter, the Department alleged that the trial court had continuing jurisdiction of the suit. Nevertheless, on September 14, 2021, the Department filed a Motion to Transfer from Court of Continuing Exclusive Jurisdiction and to Consolidate, in which it requested the trial court "to transfer proceeding Cause Number 15-0059 from the identified court of continuing exclusive jurisdiction, 71st Judicial District Court, to" the trial court.
Father asserts, based solely on the Department's allegation in its motion to transfer, that the 71st Judicial District Court of Harrison County had continuing, exclusive jurisdiction of W.L. Since the clerk's record does not contain an order of transfer to the trial court, he argues, the trial court did not have jurisdiction to terminate Father's parental rights. We disagree.
"Regardless of whether a judgment is assailed either directly or collaterally, 'all presumptions consonant with reason are indulged in order to uphold the binding effect of such judgment.'" Leonard v. Hearst Corp., No. 01-04-01023-CV, 2005 WL 3118700, at *3 (Tex. App -Houston [1st Dist] Nov. 23, 2005, pet. denied) (mem. op.) (quoting Jackson v. Slaughter, 185 S.W.2d 759, 761 (Tex. App -Texarkana 1944, writ ref d w.o.m.)). Included in this presumption is that the court had sufficient evidence before it to enter the judgment and that it had both personal and subject-matter jurisdiction. See Jackson v. Slaughter, 185 S.W.2d 759, 761 (Tex. App-Texarkana 1944, writ ref d w.o.m.). "Because the presumption is always in favor of the validity of the judgment, the burden of demonstrating error on appeal lies with the appellant." Leonard, 2005 WL 3118700, at *4 (citing Vickery v. Comm 'n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex. App-Houston [14th Dist] 1999, pet. denied)). Further, the appellant has the burden "to bring forward a sufficient record to show the error committed by the trial court." In re S.A.G., 403 S.W.3d 907, 917 (Tex. App-Texarkana 2013, pet. denied) (citing Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.-Houston [1st Dist.] 2007, no pet.)).
The record in this case shows that, in November 2018, the trial court entered a final order determining the conservatorship of W.L. in which it found that no other court had continuing exclusive jurisdiction of the child. Since nothing in this record contradicts that finding, we must presume that there was sufficient evidence to support it. See Slaughter, 185 S.W.2d at 761. On rendition of the November 2018 final order, the trial court acquired continuing, exclusive jurisdiction of W.L. See In re B.J.Y., No. 06-19-00085-CV, 2020 WL 2150498, at *3 (Tex. App.-Texarkana May 6, 2020, no pet.) (mem. op.) (citing Tex. Fam. Code Ann. § 155.001(a) (Supp.)). Because it was the court with continuing, exclusive jurisdiction, it could exercise its jurisdiction to modify its November 2018 order regarding the conservatorship and possession of the child, except under certain circumstances. See Tex. Fam. Code Ann. § 155.003. The record does not contain evidence of any of the circumstances set out in Section 155.003 to prevent the trial court from exercising its jurisdiction in this case. The record also does not show that the trial court lost or transferred its continuing, exclusive jurisdiction after the entry of its November 2018 order. See Tex. Fam. Code Ann. §§ 155.004, 155.201 (Supp.), § 155.202.
Because we must presume that the trial court had jurisdiction of W.L. when it entered its November 2018 order and since there is nothing in the record that shows that it lost or transferred its jurisdiction after that time or that supports the allegation that the 71st Judicial District Court was the court of continuing, exclusive jurisdiction, we conclude that the trial court had continuing, exclusive jurisdiction to enter its order terminating Father's parental rights to W.L. We overrule this issue.
(2) The Trial Court Properly Retained Its Jurisdiction
On July 27, 2020, the Department filed its original petition to modify the trial court's November 2018 order that sought termination of Father's parental rights to W.L. Three days later, the trial court entered its temporary order appointing the Department as temporary managing conservator of W.L. On July 15, 2021, the trial court entered its order retaining the suit on its docket pursuant to the Texas Supreme Court's Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disaster and extended the dismissal date to April 1, 2022.
See Thirty-Eighth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 900 (Tex. 2021).
Father asserts that the trial court lost jurisdiction of this case because, in its order retaining the case, it failed to find that extraordinary circumstances necessitated the extension of the dismissal date or that the extension was in the best interest of the children, as required by Section 263.401(b) of the Texas Family Code. Although Father acknowledges that the case was extended pursuant to the thirty-eighth emergency order, he argues that, under that emergency order, the trial court was required to comply with Section 263.401(b) in order to extend the initial dismissal date provided in Section 263.401(a). See Tex. Fam. Code Ann. § 263.401(a), (b) (Supp.). Since the trial court did not make the findings required by Section 263.401(b), he argues, the trial court lost jurisdiction of the case, and the termination order is void.
Father raised this same issue in his appeal from the judgment terminating his parental rights to M.A. and A.A. in cause number 06-22-00011-CV. We addressed this issue in detail in our opinion of this date in Father's appeal in cause number 06-22-00011-CV. For the reasons stated therein, we likewise overrule this issue here.
(3) Termination of Father's Parental Rights Under Ground O Must Be Affirmed
"In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App - Texarkana 2018, no pet.) (citing Tex. Fam. Code Ann. § 161.001; In re E. N.C., 384 S.W.3d 796, 798 (Tex. 2012)). "Only one predicate finding under Section 161.001[b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re L.E.S., 471 S.W.3d 915, 923 (Tex. App-Texarkana 2015, no pet.) (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App-Texarkana 2013, pet. denied)). When the trial court makes findings that multiple statutory grounds support termination of parental rights and the appellant does not challenge all of the statutory grounds found, we will affirm the trial court's termination order based on the unchallenged statutory ground, if the trial court's best-interest finding is also unchallenged. See In re A.G.-U., No. 06-17-00078-CV, 2017 WL 5473766, at *1 (Tex. App-Texarkana Nov. 15, 2017, no pet.) (mem. op.) (order terminating parental rights affirmed when parent did not challenge trial court's findings on one statutory ground and best interest); B.H.-L. v. Tex. Dep't of Fam. & Protective Servs., No. 03-17-00772-CV, 2018 WL 1278720, at *1-2 (Tex. App-Austin Mar. 13, 2018, no pet.) (mem. op.) (same).
Father did not challenge the trial court's findings that his parental rights should be terminated under Ground O or that termination was in the best interest of W.L. For that reason, we affirm the trial court's order terminating Father's parental rights under Ground O.
(4) The Findings Under Grounds D and E Are Not Supported by Legally Sufficient Evidence
Although only one statutory ground finding is necessary to support a judgment of termination, "due process demands that we review the evidence supporting findings under Grounds D and E when they are challenged on appeal because termination of parental rights under these Grounds 'may have implications for . . . parental rights to other children.'" In re L.W., 609 S.W.3d 189, 195-96 (Tex. App -Texarkana 2020, no pet.) (quoting In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam)).
See Tex. Fam. Code Ann. § 161.001(b)(1)(M) (court may terminate parental rights of a parent who has had his or her parental rights to another child terminated under Ground D or E).
Father has challenged the legal and factual sufficiency of the evidence supporting the trial court's findings under Grounds D and E. Father argues that, although there was evidence that M.A. and A.A. had received significant injuries and that Father and his mother were the primary caregivers of the children, there was no evidence of when those injuries occurred or who had possession of the children when the injuries occurred. Since Father, his mother, and the twins' Mother all had possession and access to the children and since there was no evidence showing who caused the injuries or who had possession of the children when the injuries occurred, he contends that the evidence was insufficient to support the trial court's findings under Grounds D and E. The Department relied on Ground O supporting termination and did not address the sufficiency of the evidence as to Grounds D and E.
M.A. and A.A. are twins.
In the trial court, this case was tried together with a case that sought to terminate Father's parental rights to M.A. and A.A. Father raised this same issue in his appeal from the judgment terminating his parental rights to M.A. and A.A. in cause number 06-22-00011-CV. We addressed this issue in detail in our opinion of this date in Father's appeal in cause number 06-22-00011-CV. In that opinion, we set forth the evidence presented at trial and held that, even when the record was construed in the light most favorable to the trial court's findings, the evidence was not legally sufficient to support inferences that Father caused the injuries to the twins, that the injuries occurred during his care, that he knowingly placed the twins in an endangering environment, that he allowed the twins to remain in an endangering environment, or that he knowingly placed the twins with persons whose conduct endangered them. We also find that the evidence was not legally sufficient to support an inference that W.L. was ever injured, that she ever witnessed any of the injuries inflicted on the twins, that Father knowingly placed W.L. in an endangering environment, that he allowed W.L. to remain in an endangering environment, or that he knowingly placed W.L. with persons whose conduct endangered them. For these reasons, we find that a reasonable fact-finder could not have formed a firm belief or conviction that Grounds D and E were proven. See In re L.E.S., 471 S.W.3d at 920. Because no evidence supported the trial court's findings, we find that the evidence was not legally sufficient to support the trial court's findings under D and E. We sustain this issue and reverse that portion of the trial court's judgment terminating Father's parental rights under Grounds D and E.,
Because we have found that the evidence was not legally sufficient to support the trial court's findings under Grounds D and E, we need not address Father's contention that the evidence was factually insufficient to support these findings. See Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019).
Father also complains that he received ineffective assistance of counsel because his trial counsel failed to object to the hearsay statements of Dr. Elizabeth Peeler admitted through Krystal Hosmer and to the admission of Peeler's affidavits. However, Father asserts that the harm caused by the alleged ineffective assistance was that it was the only evidence that A.A.'s and M.A.'s injuries were consistent with child abuse and therefore supported the termination of his parental rights under Grounds D and E. Since we have reversed the trial court's termination of Father's parental rights under Grounds D and E, we need not address this issue.
For the reasons stated, we affirm the trial court's judgment terminating Father's parental rights under Ground O, and we reverse the trial court's judgment terminating Father's parental rights under Grounds D and E.