in the Interest of M.D.L.E.

• Court: Court of Appeals of Texas
• Decided: March 8, 2007
• Docket: 09-05-00514-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-514 CV

IN THE INTEREST OF M.D.L.E., a child

On Appeal from the County Court at Law No. 3

Montgomery County, Texas

Trial Cause No. 04-11-09249-CV

MEMORANDUM OPINION

Aishia Eason appeals the termination of her parental rights to her minor child M.D.L.E. In her first, second, third, and fifth issues for review, Eason asserts certain violations of her due process rights under the United States Constitution. Her fourth issue complains of the trial court's abuse of discretion in allowing the Texas Department of Family and Protective Services ("the Department") to amend its petition at the start of trial. Last, Eason contends the evidence is legally insufficient to support the trial court's termination order. We affirm.

Eason, from age eight, had been, for the most part, in the care and custody of the Department since 1995. The record reflects that during that time Eason ran away at various times and became involved in the use of illegal drugs. At age sixteen or seventeen, after having been placed in the custody of her grandmother, Eason became pregnant and again returned to the Department's care and custody.

On November 5, 2004, Eason gave birth to M.D.L.E. The Department took possession of the child the day the child was born and subsequently filed an "Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship." In its petition, the Department alleged that Eason committed one or more of the following acts or omissions, viz:

1. knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

2. engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.[ ⁽¹⁾]

The trial court entered an order of protection appointing the Department the child's temporary sole managing conservator.

A month after giving birth, the Department placed Eason and the child in Sandra and Ron Carpenter's home for foster care. When Eason turned eighteen years old, she moved into a home located across the Carpenters' driveway. After Eason lived there for only three weeks, the Department determined she failed to comply with the goals of the living arrangement and removed her from the property. Subsequently, Eason moved to Houston with an aunt. Eason maintained very limited contact with the child. Based upon the following additional grounds alleged in its amended petition, the Department sought to terminate Eason's parental rights:

1. executed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161, Texas Family Code;

2. constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the child to the mother; (2) the mother has not regularly visited or maintained significant contact with the child; and (3) the mother has demonstrated an inability to provide the child with a safe environment;

3. failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.[ ⁽²⁾]

After a bench trial on the merits, the trial court terminated the parent-child relationship between Eason and her child. ⁽³⁾ Within fifteen days of the termination order, Eason filed her "Motion for New Trial and Points on Appeal." See Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006). The trial court held a hearing on her motion for new trial and declined to grant her motion.

In her first, second, and third issues on appeal, Eason argues her due process rights were violated by the failure of the Department and the trial court to comply with the requirements of the Texas Family Code. Eason presented her complaints in issues one and two in her statement of points combined with her motion for new trial; her challenge in issue three is raised for the first time on appeal. A parent's rights to the care, custody, companionship, 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, 71 L.Ed.2d 599 (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 right." In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

The record shows the Department took possession of M.D.L.E. at birth without a court order pursuant to a Notice of Emergency Removal of Children. On the first business day following the date of the child's removal, the Department filed its "Petition for Protection of a Child, for Conservatorship, and For Termination [of] the Parent Child Relationship." The Department obtained an ex parte order from the trial court appointing the Department as the child's temporary sole managing conservator. A full adversary hearing was scheduled fourteen days later. After the adversary hearing, the trial court entered further temporary orders, inter alia, naming Eason as temporary possessory conservator of the child. The case was tried on October 24, 2005, just less than one year after the child was taken into custody by the Department, and Eason's parental rights were terminated.

In issue one, Eason maintains that section 262.104's requirements for emergency removal of a child without a court order were violated. See Tex. Fam. Code Ann. § 262.104 (Vernon Supp. 2006). She maintains there was no evidence presented at the November 8, 2004, hearing, which followed the child's removal, of an immediate danger to the child, sexual abuse of the child, or current drug abuse by the person in possession of the child. See id. In issue two, Eason contends the trial court did not apply the proper standard at the November 8 hearing. Once the Department removes the child without a court order, the trial court must hold an initial hearing under section 262.107 and must order the return of the child unless the court finds the following: there is a continuing danger to the child; continuation of the child in the home would be contrary to the child's welfare; and reasonable efforts were made to prevent or eliminate the need for the child's removal. Tex. Fam. Code Ann. § 262.107 (Vernon 2002). There is no transcript of the November 8 ex parte hearing, but the order recites that the trial court considered the pleadings and evidence before it, including the caseworker's affidavit. The affidavit states Eason was in the Department's care, and the child was also brought into the Department's custody to protect both the mother and the child. The order then recites reasons for the child's removal that comport with the factors set out in section 262.104. We do not know what additional evidence, if any, the trial court considered. We take as true the recitals in the order. See generally In re D.J.M., 114 S.W.3d 637, 639 (Tex. App.--Fort Worth 2003, pet. denied) ("Absent evidence to the contrary, we view recitations contained in the trial court's judgment and records as true."). Issues one and two are overruled.

In issue three Eason contends there was no evidence presented at the November 22, 2004, full adversarial hearing to justify the Department's continued custody of M.D.L.E. ⁽⁴⁾ See Tex. Fam. Code Ann. § 262.201 (Vernon Supp. 2006). In involuntary termination cases, a party intending to appeal the trial court's termination order must timely file "a statement of the point or points on which the party intends to appeal." See Tex. Fam. Code Ann. § 263.405(b)(Vernon Supp. 2006). Appellate courts may not consider an issue not specifically presented to the trial court in the statement of points or in a statement combined with a motion for new trial. See id. § 263.405(i). Eason did not present this argument to the trial court either at the hearing below or in her statement of points combined with her motion for new trial. On appeal, she argues for the first time that the alleged error at the full adversarial hearing is fundamental error.

In In re B.L.D., 113 S.W.3d 340, 351 (Tex. 2003), the Texas Supreme Court refused to extend the fundamental-error doctrine to parental rights termination cases and held that termination cases are unlike juvenile delinquency cases and do not apply criminal procedural or evidentiary rules. Recently, the Texas Supreme Court reiterated that the rules governing error preservation must be followed in cases involving termination of parental rights, as in other cases in which a complaint is based on constitutional error. See In re K.A.F., 160 S.W.3d 923, 928 (Tex.), cert. denied, __ U.S. __, 126 S.Ct. 483, 163 L.Ed.2d 364 (2005). Because Eason did not "specifically present" her "no evidence" claim to the trial court in her statement of points combined with her motion for new trial, we may not consider it. See Tex. Fam. Code Ann. § 263.405(i).

In her fourth issue, Eason argues the trial court abused its discretion in allowing the Department to amend its petition at the start of trial. Eason argues the trial court should have granted her a continuance. A trial court's decision to grant leave to file an amendment is reviewed for an abuse of discretion. See Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939-41 (Tex. 1990). Rule 63 of the Texas Rules of Civil Procedure provides the following:

Parties may amend their pleadings . . . by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings . . . offered for filing within seven days of the date of trial or thereafter . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

Tex. R. Civ. P. 63. A trial court has no discretion to refuse an amendment unless the party opposing the amendment presents evidence of surprise or prejudice. Greenhalgh, 787 S.W.2d at 939. "A mere allegation of surprise is not a sufficient showing." La. & Ark. Ry. Co. v. Blakely, 773 S.W.2d 595, 597 (Tex. App.--Texarkana 1989, writ denied).

At the start of trial, the Department moved for permission to file an amended petition that included three additional grounds for termination. Eason objected on the grounds of surprise and stated, "I think there is surprise in the sense that there was [sic] only two grounds before and now there are three additional ones. . . . I think there may have been additional preparation that I would have done, having known the other additional grounds." Eason provided no other evidence to support her assertion of surprise or that she would be prejudiced. The trial court granted the amendment. We hold that because Eason did not present sufficient evidence to show surprise or prejudice, the trial court did not abuse its discretion in granting the Department's request to amend its petition. See Greenhalgh, 787 S.W.2d at 939. Issue four is overruled.

Eason urges in her fifth issue that the failure of the trial court's previous orders to "specifically establish the actions necessary for [her] to obtain the return of her child as required by section 161.001(1)(O) of the Texas Family Code[,]" violated her due process rights. Specifically, Eason contends it is a due process violation to require her to follow a service plan that was never filed pursuant to section 263.101 of the Texas Family Code. See Tex. Fam. Code Ann. § 263.101 (Vernon 2002). She states in her brief, "It is completely unrealistic for [me] to be expected to follow a court order that does not exist as it relates to the steps necessary for [me] to obtain the return of [my] child."

Although we do not find a service plan in the record as required by section 263.101, there is evidence of its existence. Following the adversary hearing, the trial court entered a temporary order acknowledging that the Department had prepared a service plan for Eason and ordering Eason to comply with the requirements set out in the service plan. The court also entered a status hearing order noting the goals of the service plan and Eason's review of the plan. The trial court entered permanency hearing orders and found that Eason had not complied with the service plan. Eason never contested the existence of a service plan during any of the trial court's proceedings. In fact, several witnesses at trial, including Eason, acknowledged the existence of the service plan, the general goals asserted in the service plan, and testified regarding certain specific responsibilities Eason was required to accomplish under the plan. The purpose of section 263.101 -- to put a parent on notice of the steps necessary to obtain the return of their child -- was satisfied because Eason knew of the service plan and what was required for her to comply with the plan. Eason's fifth issue is overruled.

In issue six, Eason challenges the legal sufficiency of the evidence to support the trial court's grounds for terminating her parental rights. The Texas Supreme Court has explained that "termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Before a court may involuntarily terminate a parent's rights, the evidence in support of termination must be clear and convincing. Id. "'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 (Vernon 2002).

When an appellant attacks the legal sufficiency of an adverse judgment on an issue on which she did not have the burden of proof, that appellant must demonstrate there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In cases involving the termination of parental rights, the standard of review for legal sufficiency is whether the evidence is such that a reasonable fact finder could have formed a firm belief or conviction about the truth of the matter on which the Department bears the burden of proof. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We consider all the evidence in the light most favorable to the verdict, assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could have done so, and disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible. Id.

In proceedings to terminate the parent-child relationship, the Department must establish by clear and convincing evidence that (1) the parent has committed one or more of the statutory acts or omissions prohibited in section 161.001(1) of the Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2006); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). However, because Eason does not challenge the trial court's ruling that termination is in the child's best interest, "[o]nly one predicate finding under section 161.001(1) is necessary to support the judgment." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Eason argues the evidence is legally insufficient to support the trial court's findings under section 161.001(1) (D), (E), (N), and (O). One of the findings is constructive abandonment. To find that Eason constructively abandoned her child, the Department must prove by clear and convincing evidence that (1) the child has been in the permanent or temporary managing conservatorship of the Department or an authorized agency for at least six months; (2) the Department has made reasonable efforts to return the child to Eason; (3) Eason has not regularly visited or maintained significant contact with the child; and (4) Eason has demonstrated an inability to provide the child with a safe environment. See Tex. Fam. Code Ann. § 161.001(N).

In this case, the Department became the child's temporary sole managing conservator on November 8, 2004, and the trial commenced on October 24, 2005. Thus, the child has been in the temporary managing conservatorship of the Department for at least six months.

We next consider the Department's efforts to return the child to Eason. The Carpenters, a representative of Child Protective Services, and CASA spoke with Eason and explained that it was important for her to learn how to take care of her child. The Department and the Carpenters had an arrangement facilitated by Eason's service plan whereby the Carpenters would mentor Eason and instruct her on proper parenting techniques. The purpose of the placement was for Eason to keep her child and live in a home with foster parents who had experience with young mothers and their children. The Carpenters were going to provide Eason with parental "on-the-job-training" in their home.

When Eason turned eighteen years old, she moved into another house on the Carpenters' property to learn how to live independently. Eason was required to take care of her child during the times she was not in school or at work and then was required to return him to the Carpenters in the evening. The Carpenters worked with Eason to try to help her establish a relationship with her son. They assisted Eason in maintaining her psychological and physical health and in attending counseling. They made efforts to allow Eason to participate in the child's health care and his daily activities. The Carpenters also helped Eason find employment, provided her with transportation, and provided her with money to buy groceries.

After the Department removed Eason from the Carpenters' property for failing to comply with the arrangement as provided in the service plan, the Department continued its efforts to improve her ability to parent and support the child. The Department communicated with Eason to create an ongoing plan, encouraged her to take parenting classes, and encouraged her to maintain her mental health. The Department also provided Eason with standard visitation on Friday mornings in its Conroe office. Although Eason had moved to Houston and had difficulty finding transportation from Houston to the Department's Conroe office, she did not ask the Department if she could visit the child in the Department's Houston office. The Department, however, attempted to help Eason resolve her transportation issues by asking Eason to provide it with a bus schedule so they could all find a convenient location for Eason and the child to visit. Eason did not follow up on the Department's request and failed to contact the Department to resolve this issue. In light of this evidence, we hold there is sufficient evidence to establish the Department's reasonable efforts to return the child to Eason.

Next, we consider the evidence of Eason's contacts with the child. Soon after moving into the Carpenters' home, Eason became disinterested in caring for her child and spent little time with him. Instead of caring for the child during her time off from work, Eason would sleep until she had to go to work and would not return home until after the child was in bed for the evening. Eason testified that, like a normal teenager, she slept in until 10:00 or 11:00 a.m. because she "felt there was no reason to get up that early in the morning."

Mrs. Carpenter had concerns about the bond between Eason and the child because Eason did not have the ability to "read [M.D.L.E.'s] cues" and had difficulty feeding the child and handling the child when he cried. Mrs. Carpenter also revealed that Eason would not wake up when the child did and Eason was not comfortable bathing the child. Mr. Carpenter testified that Eason was lethargic and did not take advantage of the opportunities she had to care for her child.

Teresa Burbank, Eason's licensed professional counselor, testified Eason exhibited apathetic behavior toward the child and "rarely engaged in his care." Gilda Steward, the child's caseworker, testified that when she spoke with Eason about the fact that Eason rarely visited her son while they both lived on the Carpenters' property, Eason responded by saying she did not visit because she was tired, she did not have enough time to visit him, and she had too many things to do. Steward indicated that Eason did not establish a solid relationship with the child; that, on a regular day, Eason would visit the child thirty minutes before she went to school, come home from school without seeing the child, attend work, and return home after the child was in bed. Bess Evans, the child's CASA worker and guardian ad litem, described Eason's interaction with the child while Eason lived with the Carpenters. Evans noted that when Eason was with the child, she would hold him for a few minutes and then give him back to the Carpenters.

After Eason left the house located on the Carpenters' property, the child remained with the Carpenters for approximately six months. Eason visited the child only twice during this six month period. Eason was given standard visitation with the child to take place in the Department's office, but she did not attend the visitations and did not call the office to cancel the visits or to check on the child. Eason testified that she had seen the child three times between February 2005 and the October 2005 trial date.

Evans testified she observed one of Eason's three visits with the child and there was no bond between Eason and her child; the child did not seem to know who Eason was. In describing the physical contact between Eason and the child, Evans noted that "[i]t was like she was holding him like a sack of groceries. . . ." Evans explained her observation of the visit as follows:

[H]e is a very, very playful happy child. And she just sat and looked at him. Every once in awhile she would say something to him. . . . [S]he'd say . . . he's wet, and she picked him up and she'd see the diaper was wet, and . . . she sat there . . . another ten minutes before she decided to go through the bag . . . and tried to change his diaper. And then the rest of the time she sat there with his binkie in her mouth . . . for quite awhile. You know, it was really amazing.

We have reviewed the evidence and hold there is sufficient evidence to satisfy the third prong of the test that Eason had not regularly visited or maintained significant contact with M.D.L.E. See Tex. Fam. Code Ann. § 161.001(N).

The evidence also shows Eason's inability to provide a safe environment for M.D.L.E., as required by the fourth prong. See id. Eason suffers from medical and mental health illnesses and has failed to properly maintain her own health. Eason has been diagnosed with "ADHD, schizo-affective disorder, and bipolar disorder." She also suffers from depression, mood swings, anger, and aggression, and has told a doctor that she hears voices. Eason was often ill, has been hospitalized for suffering a seizure caused by stress and low blood sugar, and has "passed out" from having low blood sugar while she was holding the child in a chair. She has also been hospitalized after suffering an asthma attack. She has been prescribed sleeping pills, diabetic and seizure medication, and psychotropic medications. Steward testified that when she visited Eason while in the Carpenters' care, she discovered that Eason was not taking her medication regularly.

Burbank expressed her concerns about Eason's ability to be an appropriate parent and testified that Eason would need to seek help from a psychiatrist for regular consultations, medication management, and intensive therapy. Eason would also need to increase her parenting skills and seek interventions for substance abuse. Burbank indicated that Eason may resist the help offered by the Department because "there is a strong link between resistance to taking medication, resistence to therapy and a severe mood disorder such as bipolar and schizo-affective. . . ." In explaining how Eason's mental health could effect her ability to provide the child with a safe environment, Burbank testified as follows:

If [Eason]'s condition is not stabilized, it would prove to be a very volatile environment. She potentially, during periods of depression, may sleep for long periods of time. She wouldn't be able to function and just performing day-to-day activities to take care of herself would be incredibly difficult.

During periods of mania, a lot of times individuals make very poor choices. They may engage in drug use, they may engage in . . . being awake for long periods of time, which once again would be very difficult to take care of an infant child during that point in time.

[I]f she is experiencing psychotic symptoms related to schizo-affective, she may be paranoid, she may be delusional, which could definitely put the child's safety at risk.

Eason had a history of prior drug use. Burbank testified that prior to Eason's becoming pregnant, Eason abused alcohol, smoked cigarettes, used "acid fry, which is embalming fluid, Xanax, [and] cocaine." Eason has participated in drug counseling programs and did not abuse drugs while pregnant. However, Steward suspected that Eason may have abused drugs at some time after she moved to Houston.

Eason has failed to maintain steady housing. Shortly after leaving the house on the Carpenters' property, Eason moved to Houston to live with her aunt. The apartment was apparently located in a known drug area and Eason's aunt used drugs. Evans visited the apartment and determined it was uninhabitable and "filthy," and was not an appropriate place for a child to live. When Evans entered the apartment, she observed Eason sleeping on a bare mattress on the floor. Evans explained that there was no furniture in the apartment and she observed only one bed in a spare bedroom. In Eason's room, there was no furniture and clothes were scattered on the floor. There were flies in the bathroom because the commode had not been flushed. The kitchen had "stuff. . . strewn all over." Eason lived in this apartment for approximately two to three months before moving into a women's shelter for approximately one month. The record indicates Eason may even have been homeless during a time between her stay with her aunt and her stay at the shelter. At trial, Eason indicated she had been living in another apartment for approximately two months.

Eason has failed to maintain steady employment. Steward indicated that the Department asked Eason to provide it with pay stubs, but by the time the Department had conducted an investigation to confirm Eason's employment, she had already left that particular job. Eason explained that she did not have a job in which she receives a paycheck. Eason testified that she worked for a telemarketing company in July 2005, but was on leave as a result of an injury. She noted that although she had not worked prior to the telemarketing company, she supports herself financially by working at "commission jobs," babysitting her cousins, cleaning her grandmother's house, and receiving SSI benefits. Eason's financial support at the time of trial consisted of $579 per month in SSI benefits and $300 in babysitting payments. There is sufficient evidence to find that Eason has demonstrated an inability to provide the child with a safe environment.

We have carefully reviewed and considered the evidence and hold that the trial court could have reasonably formed a firm belief or conviction that Eason constructively abandoned M.D.L.E. pursuant to Tex. Fam. Code Ann. § 161.001(1)(N). Because the evidence is sufficient to support the trial court's judgment terminating Eason's parental rights, we need not address the evidence supporting the court's other findings. Issue six is overruled. The judgment is affirmed.

AFFIRMED.

__________________________________

CHARLES KREGER

Justice

Submitted on July 27, 2006

Opinion Delivered March 8, 2007

Before Gaultney, Kreger and Horton, JJ.

CONCURRING OPINION

The trial court permitted a substantive pleading amendment, asserting constructive abandonment, on the day of trial and denied a continuance. This was error. See Chapin & Chapin, Inc. v. Tex. Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992) (distinguishing substantive and procedural amendments); Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (amendment asserting new cause of action prejudicial); Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980) (amendment asserting new cause prejudicial). Nevertheless, sufficient evidence supports termination for endangering conduct. See Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon Supp. 2006). That ground was timely pled. The judgment is proper, therefore, and the error does not require reversal. See Tex. R. App. P. 44.1 (reversible error standard). Although I respectfully disagree with the majority on issue four, I concur with the Court's judgment.

____________________________

DAVID GAULTNEY

Concurrence Delivered

March 8, 2007

1. These violations track section 161.001(1)(D) and (E) of the Family Code. See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 2006).

2. These additional grounds essentially track section 161.001(1)(K), (N), and (O) of the Family Code. See Tex. Fam. Code Ann. § 161.001(1)(K), (N), (O) (Vernon Supp. 2006).

3. The trial court found all of the pleaded grounds for termination except the execution of the affidavit of relinquishment.

4. While Eason's third issue mentions that she was a minor without an attorney, the thrust of the issue is that the Department presented no evidence justifying the Department's continuing custody of M.D.L.E. Eason supplies no authority for a fundamental error claim. See Tex. R. App. P. 38.1(h).