in the Interest of S.A.A., a Child

• Court: Court of Appeals of Texas
• Decided: September 13, 2002
• Docket: 01-02-00215-CV
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

_______________

NO. 01-02-00215-CV

IN THE MATTER OF S.A.A., A MINOR CHILD

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 2001-03050J

O P I N I O N

Appellant, Katina Rochell Lynn, appeals the trial court's February 7, 2002, order that terminated her parent-child relationship with S.A.A. This is an accelerated appeal. See In the Interest of B.G., et al., 10-02-00019-CV, slip op. at 1, 2002 (Tex. App.--Waco June 19, 2002, n.w.h.); see Tex. Fam. Code Ann. 263.405(a) (Vernon Supp. 2002).

Factual Background

Before the January 23, 2002 termination hearing commenced, appellant's counsel requested a continuance on the ground that his client indicated to him that she had "not been allowed to visit her child and has not been working the service plan." Counsel for the petitioner, Texas Department of Protective and Regulatory Services ("the Department" or "TDPRS") stated to the judge that she thought the testimony from the caseworker would show that the Department had conferenced with appellant to tell her what would be expected of her and had offered appellant support services ⁽¹⁾ over a period of 10 months. Nevertheless, the Department's counsel continued, appellant had not completed those services. The Department's counsel stated that, over the last six months, the case worker had several contacts with the appellant about visitation in which the caseworker would offer to set up a meeting, giving appellant instructions to call back, but appellant never did.

The trial court denied appellant's motion for continuance and proceeded to hear the Department's request for termination.

Department caseworker Tanya Bryant testified that she had had appellant's case for the preceding eight months, commencing with the time the trial court awarded custody of S.A.A. to the Department. The Department took custody of S.A.A. from her delivery at the hospital because appellant was talking to people who were not there; had no stable housing, employment, or resources; and had a psychiatric history combined with failure to take medication to stabilize her mental condition.

TDPRS introduced the family service plan for appellant, signed by her on July 19, 2001. The trial court also admitted the status hearing order in which the trial court had ordered appellant to comply with the requirements of the family service plan. Bryant went over the plan with appellant, explaining that she would have to go through the Mental Health and Retardation Association (MHMRA) to get the psychological and counseling services and parenting classes. Additionally, the service plan called for appellant to do perpetrator in-treatment, ⁽²⁾ locate and maintain proper housing, have regular and consistent visits with the child, and access resources such as SSI, food stamps, AFDC, and WIC. Bryant gave appellant phone numbers for the various services. Of all the requirements of the plan, appellant only secured housing.

During the eight months since the Department had had custody of S.A.A., appellant had visited her only two or three times, the last time being six months prior to the hearing. On numerous occasions since then, Bryant told appellant that for a visit to take place, Bryant would have to contact the foster parent, and appellant would need to call back at a specified time, but appellant never did. Bryant testified that sometimes appellant would call and leave messages saying that she had just forgotten about her baby and needed to see her, or that she did not know what was going on, or that she was having trouble with her mind. During the time the Department has had conservatorship of S.A.A., it has attempted to offer services to appellant.

About a month or two after the court awarded the Department custody of S.A.A., appellant was hospitalized, but left against doctor's orders, a situation that shows she is not a good parent because she's not able to care for herself without medication.

Bryant testified appellant has seven children. Three live with relatives in Beaumont, and two live with their biological father. Appellant's parental rights had been terminated with respect to another child. Finally, S.A.A. is the subject of this proceeding. Bryant testified that appellant's mental state was harmful to the child. Bryant opined that appellant was not capable of caring for any child.

Bryant testified that S.A.A. is currently placed in a TDPRS foster home where she is doing very well, and her emotional and physical needs are being met. The Department's long-term goal is to seek termination so S.A.A. can be placed for adoption, which Bryant testified is in S.A.A.'s best interest.

On cross-examination, Bryant testified that appellant had not left the child alone or in the possession of another person who is not the parent of the child and knows of no instance when she abandoned the child; that the child was taken from the hospital. She knows of no instance in which appellant has allowed the child to remain in surroundings which endanger the physical or emotional well-being of the child. She does not know of any instances in which appellant has been convicted of any criminal offense in the last two or three years or in jail during the time of the case. There are no allegations against appellant of physical neglect of S.A.A.

The Department called appellant to testify. She testified that she was arrested in September of 2000 for possession of drug paraphernalia. She was convicted of prostitution in July 2001, and was jailed for that offense. She remembered the caseworker's going over the service plan with her and that she signed it. She stated that she completed some of the services. She started taking her medications again and found housing. She did not complete her parenting classes because the instructor asked her to check out when she was late for a class. She testified that she gets on and off the medications. Since 1995, she has been having serious mental problems.

Appellant testified that she is unemployed, but she supported her children from money she won from the "what does it take to be a millionaire" game. She did not remember how much money she won. She gets SSI. She also supported her children by writing songs that she and they sang. The songs were published but were stolen.

Appellant testified that if she had more time, she would go to the parenting classes, have the CPS worker to visit her home, visit her child, and follow the guidelines of a new or revised family services plan.

Based on this testimony, appellant's counsel re-urged his motion for continuance. The court denied it.

On her own behalf, appellant testified that she had difficulty contacting Bryant; that when she called she got Bryant's answering machine, or if she got Bryant, Bryant would tell her to call back, and when she did, she would get Bryant's answering machine so that she only talked to Bryant three times.

After the hearing, the trial court signed a judgment terminating the parent-child relationship between appellant and S.A.A, based on the trial court's finding that by clear and convincing evidence, under Family Code § 161.001(1)(E),(N), appellant had engaged in conduct that endangered the physical and emotional well-being of S.A.A. and constructively abandoned her. See Tex. Fam. Code Ann. §161.001(1)(E),(N)(Vernon Supp. 2002). The trial court also found by clear and convincing evidence that, under Family Code §161.001(2), termination of the parent-child relationship was in S.A.A.'s best interest. See Tex. Fam. Code Ann. §161.001(2)(Vernon Supp. 2002).

Pursuant to the Family Code, ⁽³⁾ appellant timely filed a motion for new trial and statement of appellate points, contending that: (1) the trial court abused its discretion by not granting her motion for continuance and (2) the evidence was legally and factually insufficient to support the trial court's findings of the statutory elements for involuntary termination of the parent-child relationship.

As part of the posttrial proceedings, appellant also filed an affidavit of inability to pay costs of the appeal. After hearing, the trial court denied the motion for new trial, found appellant was indigent, found her appellate points frivolous, and appointed counsel to represent her on appeal.

Appellant's court-appointed attorney has filed "Appellant's Request for Court to Rule on Whether Appeal Is Frivolous," requesting the Court to make a determination whether the trial court's finding that the appeal is frivolous was proper. Appellee has filed a response requesting that the Court uphold the trial court's finding that the appellate points are frivolous.

Section 263.405(g) of the Texas Family Code gives the appellate court discretion to review, without briefs, the trial court's finding that the appeal is frivolous. Tex. Fam. Code Ann. §263.405(g) (Vernon Supp. 2002). Texas Rules of Appellate Procedure 28.3, dealing with accelerated appeals, authorizes the appellate court to allow the case to be submitted without briefs. Based on these authorities and appellant's counsel's request that we do so, we review, without briefs, the trial court's finding that the appeal is frivolous.

Analysis

A. Motion for Continuance

Appellant's first appellate point was that the trial court abused its discretion by not granting her motion for continuance. A trial court's order denying a motion for continuance will not be disturbed on appeal unless the record discloses a clear abuse of discretion. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988). To obtain a continuance, the moving party has the burden of establishing both (1) that the need for continuance is not due to fault or lack of diligence of the moving party or that of party's counsel, and (2) that the failure to grant a continuance will result in substantial harm or prejudice to the moving party in the presentation of that party's case or defense. See, e.g., Commercial Standard Ins. Co. v. Merit Clothing Co., 377 S.W.2d 179, 181 (Tex. 1964); Standard Sav. Ass'n v. Cromwell, 714 S.W.2d 49, 51 (Tex. App.--Houston [14th Dist.] 1986, no writ). In deciding whether a trial court abused its discretion, the appellate court does not substitute its judgment for that of the trial court, but only decides whether the trial court's action was arbitrary and unreasonable. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986).

Here, the trial court could have concluded that the need for the continuance was appellant's fault or her lack of diligence. Appellant's motion for continuance was because, "she has not been allowed to visit her child and has not been working the service plan." The caseworker testified that on several occasions, appellant did not call her back after the caseworker contacted S.A.A.'s foster parent about arranging a meeting between the caseworker and appellant. Appellant also testified that the reason she did not complete the parenting class requirement of the family services plan was because she was late to a class. From such evidence the trial court could have decided that the need for the continuance was due to appellant's own fault or her lack of diligence. We cannot say the trial court abused its discretion in denying appellant's motion for continuance.

Accordingly, we sustain the trial court's holding that appellant's fist appellate point was non-meritorious.

B. Sufficiency of the Evidence

Appellant's second appellate point was that the evidence was legally and factually insufficient to support the trial court's findings that appellant engaged in conduct which endangered S.A.A.'s physical or emotional well-being, that appellant constructively abandoned S.A.A., or that termination of the parent-child relationship was in S.A.A.'s best interest.

The legislature has provided that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has: . . .

(E) engaged in conduct . . . which endangers the physical or emotional well-being of the child . . . ;

(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the [Department] or authorized agency for not less than six months, and:

(i) the department or authorized agency has made reasonable efforts to return the child to the parent;

(ii) the parent has not regularly visited or maintained significant contacts with the child; and

(iii) the parent has demonstrated an inability to provide the child with a safe environment.

(2) that the termination is in the best interest of the child.

Tex. Fam. Code Ann. §161.001(1)(E),(N),(2) (Vernon Supp. 2002).

(1) Standard of Review

The standard of review for reviewing the factual sufficiency of the evidence to support the trial court's findings in a parent-child termination case is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 45 Tex. Sup. Ct. J. 1000, 1005 (July 3, 2002); In re B.M.R, No.01-01-00211-CV, slip op. at 5, (Tex. App.--Houston [1st Dist.] August 29, 2002, n. w. h.). Lynn also challenges the legal sufficiency of the evidence. In reviewing a no evidence or legal insufficiency claim, we consider the evidence in a light most favorable to the verdict. Lozano v. Lozano, 52 S.W.3d 141, 145 (Tex. 2001). If more than a scintilla of evidence exists, it is legally sufficient. Id. To rise above a scintilla, the evidence offered to prove a vital fact must do more than create a mere surmise or suspicion of its existence. Id.

(2) Appellant's Endangerment Conduct

(a) Legal Sufficiency of the Evidence

The trial court heard testimony from caseworker Bryant that the Department took custody of S.A.A. from her delivery at the hospital because, at the time, appellant was talking to people who were not there; had no stable housing, employment, or resources; and had a psychiatric history combined with failure to take medication to stabilize her medical condition. Bryant testified that appellant was not able to take care of herself without medication. Appellant, herself, acknowledged that she had been having serious mental problems since 1995. We hold this evidence amounts to more than a mere scintilla of evidence that appellant engaged in conduct which endangered S.A.A. from the time of her delivery until the Department took custody of her out of the hospital.

(b) Factual Sufficiency

On cross-examination, Bryant testified that appellant had not left S.A.A. alone or in the possession of another person who was not a parent of the child. She also testified that she knew of no instance in which the appellant allowed S.A.A. to remain in surroundings which endangered her physical or emotional well-being. She further testified that there were no allegations against appellant that she physically neglected S.A.A. The trial court could have discounted this testimony, reasoning that appellant's endangerment of S.A.A. was not a case of active conduct as the passive conduct of failure to take her medication, thus disabling her from taking care of herself and incapacitating herself from meeting the physical and emotional needs of a newborn child. This is especially likely when the evidence of appellant's lack of involvement in the lives of her other six children is considered.

We hold the evidence is factually sufficient for the trial court to have reasonably formed a firm belief or conviction that appellant had engaged in conduct which endangered the physical or emotional well-being of S.A.A.

(3) Constructive Abandonment

(a) Legal Sufficiency

Bryant testified that the Department had had temporary managing conservatorship of S.A.A. for eight months. During that time it had offered services to appellant, but appellant had visited S.A.A. only two or three times, the last time being six months before the hearing. Regarding the inability to provide a safe environment for the child element, Bryant testified that appellant reported problems with her mind and had forgotten about S.A.A. On another occasion, appellant reported she that appellant had left the hospital against doctor's orders. Bryant testified that appellant's mental state was harmful to S.A.A and that appellant was incapable of caring for any child. Appellant testified that she had been arrested for possession of drug paraphernalia in December 2000. This would have been at a time when she was pregnant with S.A.A. Appellant testified that she had been incarcerated for prostitution in July 2001. This would have been when S.A.A. was about four months old. In the same month, appellant had signed a family service plan in which one of her goals was to refrain from criminal activity. She testified that she gets on and off her medications, she has mental problems, and is unemployed. Appellant gave testimony that she was unable to complete the parenting classes called for in her family services plan because the instructor asked her to check out when she was late for class.

We hold this evidence amounts to more than a mere scintilla of evidence that appellant constructively abandoned S.A.A.

(b) Factual Sufficiency of the Evidence

On cross-examination, Bryant testified that she did not know of an instance when appellant abandoned S.A.A. Appellant testified that she completed some of the items in the family services plan such as getting back on her medications and securing housing. Appellant testified that she supported her children by writing songs that she and the children sang. She also testified that she had difficulty contacting Bryant, frequently only reaching her answering machine.

Regarding this evidence, the trial court could have put Bryant's testimony of not knowing of an instance of appellant abandoning S.A.A. in context of other testimony that appellant did not have custody of S.A.A. and only saw S.A.A. two or three times in the course of eight months. Against appellant's testimony that she completed some of the items of the family service plan, the trial court could have noted appellant's failure to avoid criminal activity, complete parenting classes and maintain her medication regime. Concerning appellant's testimony that she supported her children by writng songs, the trial court could have disbelieved this and instead have believed appellant's own testimony and Bryant's that appellant was unemployed. Regarding appellant's testimony that she had difficulty contacting Bryant about S.A.A., the trial court could have believed Bryant's testimony that appellant was the source of difficulty in arranging meetings between appellant and S.A.A.

We hold the evidence is factually sufficient for the trial court to have reasonably formed a firm belief or conviction that appellant constructively abandoned S.A.A.

(4) Best Interest of the Child-Legal and Factual Sufficiency of the Evidence

Regarding the best interest of the child, in addition to the foregoing evidence, Bryant testified that S.A.A. is currently placed in a TDPRS foster home where she is doing well and her emotional and physical needs are being met; that the Department's long-term goal is termination of appellant's parent-child relationship with S.A.A. so she can be placed for adoption, which Bryant opined was in S.A.A.'s best interest. There was no controverting evidence that termination of the parent-child relationship was not S.A.A.'s best interest.

We hold the evidence was legally and factually sufficient for the trial court to have reasonably formed a firm belief or conviction that termination of the parent-child relationship between appellant and S.A.A. was in S.A.A.'s best interest.

We sustain the trial court's holding that appellant's second appellate point was non-meritorious.

W0e affirm the trial court's February 7, 2002 termination order.

Adele Hedges

Justice

Panel consists of Justices Hedges, Taft, and Jennings.

Do not publish. Tex. R. App. P. 47.

1. See Tex. Fam. Code Ann. §263.101 (Vernon Supp. 2002) requiring the Department to file a service plan within 45 days after the Department has been appointed temporary conservator of a child.

2.

Apparently, appellant had earlier been convicted of a crime.

3.

See Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2002).