In the Interest of G.A.C.

499 S.W.3d 138, 2016 Tex. App. LEXIS 7486, 2016 WL 3924020
CourtCourt of Appeals of Texas
DecidedJuly 13, 2016
DocketNo. 07-16-00050-CV
StatusPublished
Cited by23 cases

This text of 499 S.W.3d 138 (In the Interest of G.A.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of G.A.C., 499 S.W.3d 138, 2016 Tex. App. LEXIS 7486, 2016 WL 3924020 (Tex. Ct. App. 2016).

Opinion

OPINION

Patrick A. Pirtle, Justice

Appellant, H.M.M.; a minor, appeals the trial court’s order terminating her parental rights to her daughter, G.A.C.1 By a single issue, she contends that termination of her parental rights under current Texas statutes, given her status as a minor, does not comport with the due process requirements- of the Fourteenth Amendment to the United States Constitution. We affirm.

Background

H.M.M. was sixteen years old when G.A.C. was removed from her maternal grandmother’s residence in July 2014 for neglectful supervision' based on use of ihethamphetamine by both H.M.M. and her mother, G.A.C.’s grandmother. At the time of the hearing, H.M.M. was in a substance abuse- facility which she had entered voluntarily and had been there since October 2016. Prior to that, she had been in a juvenile detention facility and on juvenile probation. G.A.C. was living with her paternal grandmother and had been with her for almost a year. Ultimately, the trial court terminated H.M.M.’s parental rights to G.A.C. under section 161.001(b)(1)(D) and (O) of the Texas Family Code. The trial court also found that termination was in G.A.C.’s best interest. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (O), (2) (West Supp. 2015).2

H.M.M. does not challenge the sufficiency of the evidence to support the grounds for termination or the best interest finding. Instead, relying on the due process requirements of the Fourteenth Amendment, she asserts that termination of her parental rights should be tolled until her status as a minor is removed or she is certified to stand trial as an adult. We disagree.

Preservation of Error

Initially, we address the argument by the Texas Department of Family and Protective Services that H.M.M. did not preserve for review her claim that her due process rights were violated. H.M.M. acknowledges the policies underlying preser[140]*140vation of error. However, she maintains that the record and arguments of counsel, including her guardian ad litem, did preserve the issue of a juvenile’s due process rights in a parental termination case. Alternatively, she asserts that if .error was not preserved, the doctrine of fundamental error should permit appellate review or due process should override preservation of error requirements.

Rule 33.1(a)(1)(A) of the Texas Rules of Appellate Procedure provides that to preserve an error for appellate review, the record must show that the complaint was first presented to the trial court with sufficient specificity to make the trial court aware of the complaint. We recognize that the Texas Supreme Court, after balancing the factors discussed in Mathews v. Eldridge,3 concluded that preservation rules comport with due process in parental termination cases. See In re B.L.D., 113 S.W.3d 340, 352-54 (Tex.2003). Even complaints concerning constitutional error must be preserved. In re R.L.T., No. 07-02-00332-CV, 2003 WL 21458782, at *3, 2003 Tex. App. LEXIS 5289, at *7 (Tex.App.—Amarillo June 24, 2003, no pet.) (mem. op.).

The Texas Supreme Court has also held that disposing of appeals for harmless procedural defects is disfavored. Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 161-62 (Tex.2012). Procedural rules should be construed liberally so that the right to appeal is not lost unnecessarily. Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex.2014). However, preservation of error rules are not trivial and reflect important prudential considerations recognizing that the judicial process benefits when trial courts have the opportunity to first consider and rule on error. Id. (citing In re B.L.D., 113 S.W.3d at 350).

Although the record before us does not reflect an objection or motion raising constitutional concerns regarding H.M.M.’s status as a minor, that fact was not lost on the trial court. The record reflects that H.M.M.’s age was a matter of concern throughout the proceedings, especially due to her inability to participate in and complete certain services and/or programs required by the Department’s Family Service Plan because of her status as a minor.4

During the caseworker’s cross-examination by G.A.C.’s attorney ad litem, the gist of the questions and answers was that at a prior hearing, the trial judge had “voiced concerns with regard to [H.M.M.’s] ability to do the service plan, in her circumstances and at her age.” The judge appointed an attorney to serve as guardian ad litem for H.M.M. on July 22, 2014. Applying preservation rules liberally, and acknowledging that termination of the parent-child relationship is of constitutional dimension,5 we conclude the trial court was aware of the complaint regarding H.M.M.’s age and took the opportunity to cure any potential error by appointing her a guardian ad litem.6 Our conclusion results in [141]*141finding that H.M.M.’s issue is preserved for review and we need not address whether the fundamental error doctrine applies.

Analysis

H.M.M. compares her predicament to that of juvenile criminals who cannot be sentenced to death nor to life without parole.7 She argues the State has an inherent conflict in its role as parens patriae because in trying to protect G.A.C., it is using its resources adversely to her and she is also a minor. We are not persuaded by her arguments.

The Texas Family Code contemplates that a parent against whom the Department seeks termination of parental rights may be a minor. The procedure for voluntary relinquishment of parental rights provides how a parent, whether or not a minor, may sign an affidavit doing so. See § 161.103(a)(1) (West Supp. 2015). (Emphasis added). Additionally, in Smith v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 673, 676 (Tex.App.—Austin 2005, no pet.), a fifteen-year-old mother’s parental rights were terminated by the Department without regard to her age.

We recognize that the Fourteenth Amendment entitles H.M.M. to due process and equal protection in a termination proceeding. Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). A component of parental due process requires “rigorous adherence to procedural safeguards anytime the state seeks to alter, terminate, or suspend a parent’s right” to the custody of a child. McCurdy v. Dodd, 352 F.3d 820, 827 (3rd Cir.Pa.2003).

H.M.M.’s parental rights, however, are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.2002). It is essential that the emotional and physical interests of her child not be sacrificed merely to preserve H.M.M.’s parental rights. Id.

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Bluebook (online)
499 S.W.3d 138, 2016 Tex. App. LEXIS 7486, 2016 WL 3924020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-gac-texapp-2016.