COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-034-CV
IN THE INTEREST OF J.R.S, J.L.S., AND B.L.N.S.
------------
FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
MEMORANDUM OPINION 1
I. Introduction
Appellant Melissa S. appeals the trial court’s judgment terminating her
parental rights to her three children—Julia, James, and Bethany (collectively
“children”).2 Melissa argues that the trial court erred by failing to grant her
1 … See Tex. R. App. P. 47.4. 2 … Pursuant to Texas Rule of Appellate Procedure 9.8(b)(2), we use aliases for the names of the children. motion for continuance, that the evidence is legally and factually insufficient to
support the trial court’s family code section 161.001(1) termination ground
findings, and that the evidence is legally and factually insufficient to support the
trial court’s finding that termination of Melissa’s parental rights to the children
is in the children’s best interest. We affirm.
II. Factual and Procedural Background
At age fifteen, Melissa gave birth to Julia. Melissa lived with her mother
in Indiana when Julia was born. Melissa last saw Julia’s father, Enrique O.,
when she was pregnant with Julia. Melissa signed a provisional custody
agreement that allowed her mother to make various decisions for Julia, who
was diagnosed with epilepsy at age five. Julia was sixteen years old at the
time of trial.
Melissa was sixteen year’s old when she, Julia, and Melissa’s mother
moved to Louisiana. There, still at age sixteen, Melissa met and married George
G. Melissa subsequently separated from George G., moved to Dallas, met Beto
M., had a two-year relationship with Beto, and gave birth to James in July
1995 in Louisiana. 3 Melissa learned after James’s birth that George had
3 … James, who is Beto’s son, was born two and one-half months premature, weighing approximately two pounds, thirteen ounces.
2 divorced her. Melissa is unaware of Beto’s whereabouts. James was twelve
years old at the time of trial.
Melissa moved back to Dallas about a year after James’s birth. Julia and
James remained in the care of Melissa’s mother. In November 1997, Melissa
gave birth to her third child, Bethany, back in Louisiana. At trial, Melissa could
not articulate Bethany’s father’s name, nor did she know what he did for a
living, despite claiming to have had a two-year relationship with him. Bethany
was ten years old at the time of trial.
Melissa never graduated from high school. She lived with her mother in
Louisiana after Bethany was born. She did not have a job, but she drew SSI
benefits and received WIC payments and Medicaid. Approximately four years
after Bethany’s birth, Melissa moved back to Texas “to live on her own,” and
she worked as a waitress. Julia, James, and Bethany remained in Louisiana
under Melissa’s mother’s care. Melissa left the children in her mother’s care
because Melissa did not have the means to take care of them, and she knew
that they would have a roof over their heads. Melissa visited the children and
sent them money.
After living in Dallas for approximately eighteen months, Melissa moved
back to Louisiana to live with her mother because her mother was sick and she
3 needed help caring for Julia.4 Melissa did not have a job when she moved back
to Louisiana.
In October 2002, Melissa’s mother and the children moved to Graham,
Texas, to live with Vickie and Lester M.5 because Melissa’s mother was sick
and needed care. Melissa had last signed a provisional custody agreement in
2001, and she was “pissed” about the move because she “didn’t have a say
at all” in her mother’s decision to move to Texas with the children. Melissa
called Legal Aid and the Sheriff’s Department for assistance. However, she
never went to Texas to pick up the children, and she eventually “let it go”
because she “knew [her] mom could take care of [the children]. They were in
good hands.” Melissa moved to Dallas two weeks later. Melissa visited the
children in December 2002.
Melissa’s mother died in March 2003. Thereafter, Vickie and Lester M.
filed suit, and the trial court signed an order in September 2003 that appointed
them and Melissa joint managing conservators of the children and gave Vickie
and Lester M. the exclusive right to designate the primary residence of the
children within Young County. Vickie and Lester M. had care, custody, and
4 … Julia suffered seizures. 5 … Lester M. is Melissa’s uncle.
4 control of the children. The order also required Melissa to pay to Vickie and
Lester M. monthly child support in the amount of $100, and it awarded Melissa
monthly visitation with the children. Melissa did not make the child support
payments.
After entry of the order, Melissa visited the children in July 2004,
December 2004, and July 2005. She had little or no transportation that
allowed her to visit the children. Vickie M. told her that she could not see the
children, and Melissa did not have enough money to hire an attorney to
represent her interests regarding the children. Melissa, however, never moved
to Graham to be close to her children. According to her, “I didn’t want to
[move to Graham]. I wanted to live elsewhere.”
Appellee, the Texas Department of Family and Protective Services
(“TDFPS”), removed the children from Vickie and Lester M.’s residence on
August 3, 2006, after Vickie M.—claiming that she was having trouble
controlling them and that she could not handle them anymore—delivered the
children to TDFPS. Following an investigation, TDFPS found that there was
“reason to believe” for physical abuse and for the refusal of parental
responsibility.6 Melissa admitted that when Vickie M. turned the children over
6 … Melissa testified that she heard family violence involving one or more of the children occurred at Vickie and Lester M.’s residence.
5 to TDFPS, Melissa “did not have the means of a living, no, I did not. And I did
not want them [the children] in my possession at the time anyway because I
didn’t have nowhere else to put them as far as household.”
Melissa participated with TDFPS to develop a service plan. She took a
psychological exam early in the case, but she did not complete her plan (which
included taking another psychological exam and completing parenting classes
and counseling sessions) until the latter part of 2007, after an extension.
After the children’s removal, Melissa moved to Houston in January 2007;
she moved to Irving in late February 2007; she moved to Oklahoma in March,
April, or May 2007; and she moved back to Irving in July 2007. Melissa visited
the children once in October 2006 and once in December 2007.7 She failed to
show up for visits with the children on February 1, 2007, and September 11,
2007, and she contended that the trial court prohibited her from visiting the
children from late February 2007 to June 2007.
Trial was to the bench in January 2008. Melissa testified that she lives
with Cheryl S. (her “godmother”), that she had started working at a restaurant
three months before trial, and that she had applied for housing with the Dallas
7 … Melissa did not visit the children between July 2005 and October 2006.
6 Housing Authority, but she acknowledged that she does not have transportation
and that she does not have a place for the children to live.
The trial court subsequently signed an order terminating Melissa’s
parental rights to Julia, James, and Bethany.8 The trial court found by clear and
convincing evidence that termination of Melissa’s parental rights to the children
was in the children’s best interest and that Melissa had (1) knowingly placed
or knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being, (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being, (3) constructively
abandoned the children, and (4) failed to comply with the provisions of a court
order that specifically established the actions necessary for her to obtain the
return of the children. See Tex. Fam. Code Ann. §§ 161.001(1)(D), (E), (N),
& (O), 161.001(2) (Vernon 2008). The trial court further ordered that TDFPS
be appointed permanent managing conservator of the children. This appeal
followed.
III. Motion for Continuance
8 … The trial court also terminated the parental rights of all three of the alleged fathers of the children.
7 In her first issue, Melissa argues that the trial court erred by failing to
grant her motion for continuance. She contends that she did not receive proper
notice of the final trial setting as required by Texas Rule of Civil Procedure 245
because neither she nor her attorney were present at an October 5, 2007
permanency hearing when the first notice of the final trial setting was made and
because her attorney, who she states was appointed on December 11, 2007,
did not receive notice “until some date in December after December 11, 2007.”
Rule 245 provides in part as follows:
The Court may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties.
Tex. R. Civ. P. 245. The forty-five day notice provision is mandatory. Custom-
Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 659 (Tex. App.—San Antonio
2002, no pet.). But it applies only to the first setting of the trial. State Farm
Fire & Cas. Co. v. Price, 845 S.W.2d 427, 431–32 (Tex. App.—Amarillo 1992,
writ dism’d). Whether the trial court grants or denies a motion for continuance
is within its sound discretion. See BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 800 (Tex. 2002). A trial court abuses its discretion if it acts in
an arbitrary or unreasonable manner, without reference to guiding rules and
8 principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
The trial court signed a permanency hearing order on June 22, 2007, that
set October 5, 2007, as the final trial date. The order indicates that Melissa
“appeared in person and announced ready.” On October 5, 2007, the trial
court signed a permanency hearing order that reset the final trial date for
January 14, 2008. The order does not indicate that Melissa was present. On
October 24, 2007, the trial court signed an order appointing Jeff Eaves to
represent Melissa. Melissa states in her brief that her lawyer did not receive
notice of the termination matter “until some time in December after December
11, 2007.” The termination trial commenced on January 14, 2008.
Because June 22, 2007, was not less than forty-five days before January
14, 2008, Melissa received notice of the first trial setting as required by rule
245. See Tex. R. Civ. P. 245. Assuming that Melissa’s counsel received
notice of the reset final trial setting “some date in December after December
11, 2007,” and considering the entire record, Melissa received reasonable
notice of the January 14, 2008 reset final hearing as required by rule 245. See
9 id.9 Accordingly, we hold that the trial court did not abuse its discretion not
granting Melissa’s motion for continuance. We overrule Melissa’s first issue.
IV. Evidentiary Sufficiency
In her second, third, fourth, fifth, and sixth issues, Melissa argues that
the evidence is legally and factually insufficient to support the trial court’s
family code section 161.001(1) termination ground findings and section
161.001(2) best interest finding.
A. Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
not absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that
9 … We note that the record demonstrates that the trial court signed an order on October 5, 2007, consolidating the termination case with an action seeking to recover Melissa’s child support arrearage under cause number 29,907. Melissa’s attorney appeared on behalf of Melissa in cause number 29,907 as early as November 14, 2007, two months before the final trial.
10 right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)6. In a termination case, the
State seeks not just to limit parental rights but to erase them permanently—to
divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit. Tex.
Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685 S.W.2d 18,
20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly
construe involuntary termination statutes in favor of the parent. Holick, 685
S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth
2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear
and convincing if it “will produce in the mind of the trier of fact a firm belief or
11 conviction as to the truth of the allegations sought to be established.” Id. §
101.007 (Vernon 2002). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the factfinder resolved any disputed
facts in favor of its finding if a reasonable factfinder could have done so. Id.
We must also disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
12 the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as
they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated the relevant conduct provision of
section 161.001(1) and that the termination of the parent-child relationship
would be in the best interest of the child. C.H., 89 S.W.3d at 28. If, in light
of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could
not reasonably have formed a firm belief or conviction in the truth of its finding,
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Constructive Abandonment Finding
A parent constructively abandons a child when (1) the child has been in
the permanent or temporary managing conservatorship of TDFPS or an
authorized agency for not less than six months, (2) TDFPS or the authorized
agency has made reasonable efforts to return the child to the parent, (3) the
13 parent has not regularly visited or maintained significant contact with the child,
and (4) the parent has demonstrated an inability to provide the child with a safe
environment. Tex. Fam. Code Ann. § 161.001(1)(N); In re A.S., 261 S.W.3d
76, 88–89 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). The only
constructive abandonment requirement Melissa challenges is the requirement
that TDFPS make reasonable efforts to return the children to her. As TDFPS
points out, this court and others have reasoned that TDFPS’s preparation and
administration of a service plan for the parent constitutes evidence that TDFPS
made reasonable efforts to return the child to the parent. See, e.g., In re
K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.); In re S.S.,
No. 11-05-00083-CV, 2006 WL 1285125, at *2–3 (Tex. App.—Eastland May
11, 2006, no pet.) (mem. op.).
The record demonstrates that Melissa participated with TDFPS to develop
a service plan. She signed the “Family Service Plan” on October 25, 2006.
The service plan specifically states that its “purpose is to help you provide your
child with a safe environment within the reasonable period specified in the
plan.” It further states that TDFPS (CPS) will evaluate Melissa’s progress on
the basis of Melissa’s “successful achievement of the goals stated in this plan,”
“successful completion of the tasks in this plan,” and “ability to provide for the
ongoing safety and well-being of your children.” The service plan required that
14 Melissa complete parenting classes, a psychological evaluation, counseling
sessions, and drug screens. On October 27, 2006, the trial court signed a
status hearing order providing in part that the service plan is reasonable,
accurate, and in compliance with the previous orders of the court and,
significantly, that the plan “adequately ensure[s] that reasonable efforts are
being made to enable the parent to provide a safe environment for the
children.”
Melissa argues that TDFPS “did not make reasonable efforts to assist
[her] with her transportation issues in an effort to facilitate her visitation with
the children, nor did [TDFPS] assist her in an effort to make the visitation take
place at a location more accessible to Melissa.” But April Mancilla, the CPS
caseworker assigned to Melissa’s case, testified that Melissa never requested
transportation services from TDFPS. Mancilla also testified that Melissa did not
notify her of the approximately six moves that Melissa made during the
pendency of the case, that it was difficult to locate Melissa, and that it was
difficult to work with Melissa with regard to her performing services. Mancilla
stated that TDFPS offered services early in the case, but Melissa did not
complete her services until the latter part of 2007. According to Mancilla,
Melissa expressed throughout the whole case that she wanted to place her
15 children with her sister, who lives in Louisiana. It was not until October 2007
that Melissa “decided that she was going to work services.”
Additionally, Melissa testified that she accomplished many of her moves
and visited her children when living away from them with the help of friends,
by taking a Greyhound bus, or by driving her own car when she owned it. She
testified:
[TDFPS attorney]: So you were able to get transportation when you needed to get transportation?
[Melissa]: Yes.
The decision to not live closer to her children was Melissa’s decision.
According to her, she never moved to Graham to be close to her children
because she “didn’t want to [move to Graham]. [She] wanted to live
elsewhere.”
Based on our review of the entire record, we conclude that a factfinder
could reasonably have formed a firm belief or conviction that TDFPS made
reasonable efforts to return the children to Melissa. Therefore, we hold that the
evidence is legally and factually sufficient to support the trial court’s section
161.001(1)(N) finding that Melissa constructively abandoned her children. See
Tex. Fam. Code Ann. § 161.001(1)(N). We overrule Melissa’s fourth issue.
16 Because we affirm the trial court’s section 161.001(1)(N) finding, we
need not address Melisssa’s second, third, and fifth issues challenging the
sufficiency of the evidence to support the trial court’s section 161.001(1)(D),
(E), and (O) findings. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(providing that only one predicate finding under section 161.001(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest).
C. Best Interest Finding
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt
and permanent placement of the child in a safe environment is also presumed
to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon
2002). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
17 (E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or the proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are
not exhaustive; some listed factors may be inapplicable to some cases; other
factors not on the list may also be considered when appropriate. C.H., 89
S.W .3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. Id. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
Here, Julia informed the trial court that she thought Melissa should “get
her rights to us [the children],” that she would feel safe living with Melissa, and
that she would be happiest if the judge “[p]ut me back with my mama.” James
told the trial court that he wanted to live with Melissa because he has not lived
with her in a long time. Melissa offered into evidence two notes from the
children. They state, among other things, “Hope you stay away from smoking
18 and I hope that you come through with your services and I hope you get us
back,” “I love you and miss you and want to go home with you,” “Your loving
children forever,” and “We love you, Mommy.”
Melissa testified that she has taken steps to become a responsible parent,
including getting a job, applying for housing, and trying to work something out
for transportation. Melissa opined that she is able to both physically and
emotionally take care of the children, that “this process” has matured her, that
she relates with her children well, and that her godmother provides her with a
support system.
Mancilla, however, opined that it is in the children’s best interest that
Melissa’s parental rights be terminated. She testified that the children need
stability, permanency, and consistency; that they need a home that they can
go to; and that they need to have food to eat. Mancilla thought that Melissa
had not developed the parenting skills and abilities necessary to take care of the
three children. She testified that Melissa did not currently have a clean and
safe environment for the children to live in, that Melissa did not demonstrate
to TDFPS that the choices she had been making were good choices, that she
had no indication from Melissa’s testimony that Melissa is emotionally stable,
that Melissa could not adequately take care of the emotional and physical needs
of the children, that she does not think that Melissa will get the children to the
19 doctor’s office when they need to go, and that she does not think that Melissa
has the parenting ability to parent the children. Melissa acknowledged that she
does not have transportation and that she does not have a place for the children
to live.
Mancilla agreed that Melissa has made numerous excuses for her behavior
instead of taking responsibility for her actions, including that Melissa had a
drunk father, that she became pregnant at age fifteen and eighteen, that she
was kicked out of school at age fifteen, that she has no transportation and no
home, and that she lives on disability.
Mancilla testified that all three of the children are doing “great” and that
they are comfortable in their current placements. She agreed that the children
have never had a consistent caregiver and that the last year and one-half (the
pendency of Melissa’s case) has probably provided the children with the most
consistent care that they have ever had.
Frank Gellner is the guardian ad litem for the children. He visited the
children at least every three months during his tenure as guardian ad litem. He
agreed that Julia, the eldest sibling, felt like she was the “mother figure” in the
lives of her two siblings. Gellner did not think that it would be a good idea to
return the children to Melissa, and he recommended that Melissa’s parental
rights be terminated.
20 The factors—including the emotional and physical needs of the children
now and in the future, the emotional and physical danger to the children now
and in the future, Melissa’s parental abilities, the stability of the home, and
Melissa’s excuses for her acts or omissions—support the trial court’s finding
that termination of the parent-child relationship is in the children’s best interest.
See Holley, 544 S.W.2d at 371–72.
Based on our review of the entire record, we conclude that a factfinder
could reasonably have formed a firm belief or conviction that termination of
Melissa’s parental rights to Julia, James, and Bethany is in Julia’s, James’s,
and Bethany’s best interest. Therefore, we hold that the evidence is legally and
factually sufficient to support the trial court’s section 161.001(2) best interest
finding. See Tex. Fam. Code Ann. § 161.001(2). We overrule Melissa’s sixth
issue.
V. Conclusion
Having overruled Melissa’s first, fourth, and sixth issues, her dispositive
issues, we affirm the trial court’s order terminating Melissa’s parental rights to
Julia, James, and Bethany.
BOB MCCOY JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
21 DELIVERED: February 5, 2009