in the Interest of Z.L.

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00194-CV __________________

IN THE INTEREST OF Z.L. __________________________________________________________________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV1814010 __________________________________________________________________

MEMORANDUM OPINION

C.L. appeals the trial court’s order terminating his parental rights to his child,

Z.L. In two appellate issues, C.L. (1) alleges the termination of his parental rights

was improper because “[t]here was no established parent-child relationship to

terminate[,]” and (2) contends the trial court violated his right to due process by not

allowing him a reasonable opportunity to participate in the trial. We affirm the trial

court’s judgment terminating C.L.’s parental rights.

PERTINENT BACKGROUND

The Department of Family and Protective Services (“the Department”) filed a

petition seeking termination of C.L.’s rights to his son, Z.L. The Department’s

1 petition alleged that C.L. was the alleged father of Z.L. and requested termination of

the parent-child relationship. In addition, the Department pleaded that if C.L.

“appears and is established as the father . . . , the Court should terminate the parent-

child relationship[.]” The Sheriff’s return attached to the citation showed that C.L.

was personally served with process.

The Court Appointed Special Advocate (“CASA”) report stated that “[t]he

father is currently incarcerated in Liberty County for assault and family violence and

additional criminal charges.” The status hearing order of February 1, 2019, reflects

that C.L. appeared at the status hearing through his attorney of record. The trial court

ordered C.L. to submit to genetic testing. The record does not reflect that C.L.

submitted to genetic testing or that the trial court signed an order that C.L. is the

biological father of Z.L. At a hearing on January 4, 2019, C.L. appeared with

counsel, and when the trial judge asked those present to identify themselves, C.L.’s

attorney stated that he is the “attorney for the father[,]” and C.L. twice identified

himself as “[C.L.], Father.” At the same hearing, C.L.’s counsel stated that C.L. had

reviewed the paperwork with counsel, and that C.L. agreed to the temporary

managing conservatorship.

A report from the paternity registry certified that no intent to claim paternity

of Z.L. had been filed. Paternity tests excluded two men, C.H. and B.G., as the

biological father of Z.L. A CASA report of May 28, 2019, indicated as follows in

2 reference to C.L.: “The father listed on the birth certificate has not been confirmed

by paternity[,]” but he was participating in supervised visitation. On September 23,

2019, C.L.’s attorney of record appeared at the permanency hearing and announced

ready for trial. At this hearing, CPS caseworker Sharonda Easley testified that C.L.

had been visiting Z.L., and Easley also stated in open court that C.L. has not

appeared for genetic testing, and that C.L. “said he knows he’s the father.” C.L.

signed a child caregiver resource form as Z.L.’s “parent or guardian” and named his

niece as someone who might be able to care for Z.L. In addition, C.L. signed a

temporary visitation schedule in a signature block labeled “Parent Signature[.]”

At the beginning of the trial, which was conducted via Zoom, the Department

and the attorney ad litem announced ready, but counsel for C.L. orally requested a

continuance due to lack of contact with his client and the Covid-19 pandemic, and

counsel argued that trial by Zoom would not allow him to effectively communicate

with C.L. The attorney ad litem argued, “the issues with the Zoom trial [weren’t]

brought up before today. Both parents have decided to absent themselves from

contact with their attorneys or to this proceeding and frankly, Your Honor, my client

deserves permanency[,] and I would ask that we please move forward today.” The

trial court discussed the possibility of mediation with the parties, and the foster

parents informed the trial judge that both C.L. and Z.L.’s mother, M.P., stated that

3 they did not intend to come to court and testify again.1 The attorney ad litem argued

that the case had been pending for quite some time, and that although she

sympathized with the parents’ attorneys, “this child needs permanency. He needs to

know where he’s going to live for the rest of his life and not have to worry that he

might be drug back in[to] court every time Mom and Dad get a wild idea.”

The trial judge denied the oral motions for continuance, and the case

proceeded to trial. The trial judge took judicial notice of the termination order it

entered in trial cause number CV1813884 as to one of the parties’ other children.

During his opening statement and closing argument, C.L.’s counsel argued that

C.L.’s parental rights should not be terminated. C.L.’s counsel also cross-examined

witnesses and made numerous objections during trial. After the trial concluded, the

trial judge signed an order terminating C.L.’s parental rights. See Tex. Fam. Code

Ann. § 161.001(b)(1)(E), (M), (O).

ISSUE ONE

In his first issue, C.L. argues that the trial court erred by terminating his

parental rights because he was an alleged father of Z.L. but had not been determined

to be a “parent” as defined by section 101.024 of the Family Code. See Tex. Fam.

1 After previously conducting a trial in trial case number CV1813884, the trial court terminated the rights of C.L. and M.P. to another child. That case is also before this Court in appeal number 09-20-00195-CV. M.P. is not a party to this appeal regarding Z.L. 4 Code Ann. § 101.024 (defining “parent” as “a man presumed to be the father, a man

legally determined to be the father, a man who has been adjudicated to be the father

by a court of competent jurisdiction, a man who has acknowledged his paternity

under applicable law, or an adoptive . . . father”). C.L. does not challenge the

sufficiency of the evidence supporting the trial court’s findings regarding the

predicate acts or omissions or that termination is in Z.L.’s best interest. Rather, C.L.

contends that he is not a parent whose rights are subject to termination because he

was not formally adjudicated to be Z.L.’s biological father.

At the outset, we note that C.L. did not raise this argument in the trial court.

See Tex. R. App. P. 33.1(a). However, for the reasons explained herein, he would

not prevail even if he had properly preserved the issue for appellate review. The

decision to terminate parental rights must be supported by clear and convincing

evidence, i.e., “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; see In the Interest of J.L., 163 S.W.3d

79, 84 (Tex. 2005). The Department must show that the parent committed one or

more predicate acts or omissions and that termination is in the child’s best interest.

See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In the Interest of J.L., 163

S.W.3d at 84.

5 Section 101.0015 of the Texas Family Code defines “alleged father” as “a

man who alleges himself to be, or is alleged to be, the genetic father or a possible

genetic father of a child, but whose paternity has not been determined.” Tex. Fam.

Code Ann. § 101.0015(a). Section 161.002(a) of the Texas Family Code, which

deals specifically with termination of the rights of an alleged biological father,

provides that “the procedural and substantive standards for termination of parental

rights apply to the termination of the rights of an alleged father.” Id. § 161.002(a).

Subsection (b) of section 161.002 provides that the rights of an alleged father may

be terminated if, “after being served with citation, he does not respond by timely

filing an admission of paternity or a counterclaim for paternity under Chapter 160[.]”

Id. § 161.002(b)(1).

The provisions of section 161.001(1) of the Texas Family Code “also apply

to an alleged father.” In the Interest of T.C., No. 04-09-00126-CV, 2010 WL

2298900, at *1 (Tex. App.—San Antonio June 9, 2010, no pet.) (mem. op.). If a

father admits paternity, then section 161.002(a) allows the father “to stave off

summary termination of his rights [under subsection (b)(1)] and requires the

Department to meet the high burden of proof found in section 161.001.” Phillips v.

Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex. App.—

Austin 2000, no pet.). An admission of paternity does not alter a father’s status as an

alleged biological father; rather, it “merely gives him the right to proceed to trial and

6 require the state to prove by clear and convincing evidence that he engaged in one

of the types of conduct listed in section 161.001(1) and that termination is in the best

interest of his child.” Id.

“There are no formalities that must be observed when filing an admission of

paternity or for such an admission to be effective.” In the Interest of U.B., No. 04-

12-00687-CV, 2013 WL 441890, at *2 (Tex. App.—San Antonio Feb. 6, 2013, no

pet.) (mem. op.). If an alleged biological father does not file a document with the

court, he may nevertheless be found to have admitted paternity by appearing at trial,

asserting that he was the child’s father, and asking the trial court not to terminate his

parental rights. See Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d

85, 105 (Tex. App.—Houston [1st Dist.] 2006, no pet). In support of his argument,

C.L. cites In the Interest of J.E.; however, that case is distinguishable because in

J.E., the trial court explicitly found that the alleged father was not the child’s

biological father. See In the Interest of J.E., No. 04-19-00050-CV, 2019 WL

2110682, at *1-2 (Tex. App.—San Antonio May 15, 2019, no pet.) (mem. op.).

Additionally, J.E. involved an allegation that the parent was a presumed father rather

than an alleged father, and the Texas Family Code defines the terms differently.

Compare Tex. Fam. Code Ann. § 101.0015 (defining “alleged father”) with Tex.

Fam. Code Ann. § 160.204(a) (defining circumstances under which a man is

presumed to be a child’s father).

7 As discussed above, C.L. signed documents in the trial court as Z.L.’s parent,

his attorney identified himself as representing Z.L.’s father, and C.L. identified

himself as Z.L.’s father in open court during a hearing, agreed to temporary

managing conservatorship, and visited Z.L.. Easley stated in open court, without

objection from C.L.’s counsel, that C.L. “said he knows he’s the father.”

Additionally, this Court takes judicial notice that in the appeal before this Court

regarding one of C.L.’s other children, C.L. testified that Z.L. is his child and he

provides financial support for Z.L. See Douglas v. Am. Title Co., 196 S.W.3d 876,

878 n.1 (Tex. App.—Houston [1st Dist.] 2006, no pet) (holding that an appellate

court may take judicial notice of its own records in the same or related proceedings

involving the same or nearly the same parties).

Based upon the Department’s allegation in its petition that C.L. is an alleged

father, the admissions of C.L. and his counsel in open court, as well as Easley’s

statements in open court, C.L.’s signing of documents as Z.L.’s parent, and C.L.’s

testimony about being Z.L.’s father during the trial regarding his other child, we

conclude that clear and convincing evidence supported the trial court’s implicit

finding that C.L. is Z.L.’s parent.2 See Tex. Fam. Code Ann. § 161.001(b); In the

2 C.L. points out that the trial court’s termination order identifies him as “Respondent Presumed Father” in its list of the parties’ appearances. However, in the section of the order which terminated C.L.’s rights, the order simply identified C.L. as “Respondent Father[.]” The Department’s original petition identified C.L. as Z.L.’s “alleged father[.]” With the exception of the stray “presumed father” 8 Interest of J.L., 163 S.W.3d at 84; Toliver, 217 S.W.3d at 105; Douglas, 196 S.W.3d

at 878 n.1. Accordingly, we overrule issue one.

ISSUE TWO

In issue two, C.L. argues that the trial court violated his right to due process

by not allowing him a reasonable opportunity to participate in the trial. The record

reflects that C.L. did not raise this issue in the trial court. See Tex. R. App. P. 33.1(a);

In the Interest of K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (holding 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[]”). “Appellate review of potentially reversible error [that was] never presented

to a trial court would undermine the Legislature’s dual intent to ensure finality in

these cases and expedite their resolution.” In the Interest of B.L.D., 113 S.W.3d 340,

353 (Tex. 2003).

Even if we were to construe C.L.’s second issue as a complaint regarding the

denial of his motion for continuance, he would not prevail. We review the trial

court’s order denying a motion for continuance for abuse of discretion. Villegas v.

Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will not reverse the trial court’s

designation in the list of parties in the termination order, nothing else in the pleadings or evidence indicates that the trial court found C.L. to be a presumed father. Rather, the record indicates that the trial court found the Department’s pleading that C.L. is Z.L.’s alleged father to be true. 9 decision unless the trial court acted unreasonably or arbitrarily “‘without reference

to any guiding rules and principles.’” Beaumont Bank, N.A. v. Buller, 806 S.W.2d

223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985)). Rule 251 of the Texas Rules of Civil Procedure provides

as follows, in pertinent part: “No application for a continuance shall . . . be granted

except for sufficient cause supported by affidavit, or by consent of the parties, or by

operation of law.” Tex. R. Civ. P. 251. A trial court is presumed to have correctly

exercised its discretion when it denies a motion that does not comply with the

requirements of Rule 251. Villegas, 711 S.W.2d at 626.

In this case, counsel made only an oral motion for continuance, so the record

does not contain an affidavit supporting the motion. In addition, the record reflects

that the trial judge heard and considered arguments regarding the length of time the

case had been pending; C.L.’s counsel’s statement that he had left a voicemail

message for C.L. about the trial setting, but C.L. had not responded; the number of

times the case had already been reset; Z.L.’s need for permanency; and a statement

from Z.L.’s foster parent that C.L. said he did not intend to return to court for the

trial. We conclude that the trial court did not act arbitrarily or unreasonably without

reference to guiding rules or principles in denying C.L.’s oral motion for

continuance. See Tex. R. Civ. P. 251; Buller, 806 S.W.2d at 226. For all these

10 reasons, we overrule issue two. Having overruled both of C.L.’s issues, we affirm

the trial court’s order terminating C.L.’s parental rights.

AFFIRMED.

_________________________ STEVE McKEITHEN Chief Justice

Submitted on November 2, 2020 Opinion Delivered December 10, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.