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In re S.M.S.

Court of Appeals of Texas, First District

May 11, 2017


         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2006-00355J

          Panel consists of Justices Higley, Bland, and Brown.


          Jane Bland Justice

         Following a bench trial, the trial court terminated the parental rights of T.R.S., the alleged father, and M.M.C., the mother, to their two children, S.M.S. and S.T.S. In separate appeals, the parents challenge the trial court's judgment. We affirm.


         The children first came into the care of the Texas Department of Family and Protective Services in October 2005, following a referral for neglectful supervision. The father did not appear at this stage of the proceeding. The Department and the mother entered into a settlement agreement that contemplated a stair-step return of the children to the mother's custody and return of the children's managing conservatorship to the mother.

         Following that settlement, the trial court signed a January 2007 judgment that found the appointment of the mother as managing conservator would not be in the children's best interest, removed the children's mother as their managing conservator, and named the Department managing conservator. Pursuant to the settlement agreement, the judgment further provided that the mother, as possessory conservator, would have visitation, access, and possession of the children, who would be returned to the mother by March 2007 upon her completion of (1) psychiatric and drug evaluations; (2) proof that she had maintained a stable living environment and employment; and (3) a home assessment. The judgment also required the mother to continue to reside in Harris County until after the modification was completed, and prohibited the children's removal from Harris County without the Department's prior written approval.

          The record contains certificates of a paternity registry search reporting no notice of intent to claim paternity with respect to each child. The father claimed he was married to the mother before the children were born, but searches did not reveal any marriage certificate. By time of trial, the father had not submitted to DNA testing to prove his paternity.

         Before the Department transferred managing conservatorship of the children to the mother under the agreement, the mother and the children fled Texas with the father. The mother did not seek or receive written approval from the Department. In arranging for the departure, the father furtively provided the younger child with a cell phone and arranged to meet him at a school bus stop near the foster home where he lived with several other children. When the parents picked up the child, they threatened the other children waiting at the bus stop, telling them that they knew where the children lived and that if the children didn't want to be harmed, they needed to keep their mouths shut.

         For the next several years, the family lived "on the run" in a recreational vehicle, traveling between Colorado, Utah, and New Mexico. They spent at least one school year in Colorado but, when the school discovered that the elder child had an undisclosed heath issue, the school counselor notified that state's Child Protective Services and the mother. After learning that Colorado CPS had been notified, the parents packed the RV and left the area with the children in tow. Eventually, the family came to the attention of authorities in New Mexico, where the Department took the children back into custody. The Department then moved to modify or, alternatively, terminate the parental rights to the children.

         Neither the mother nor the father appeared at trial. Through telephone conversations with their attorneys, they claimed to be unaware of the trial date. Based on these claims, counsel sought a continuance, which the trial court denied.

         At trial, the father's counsel conceded that the father had not submitted to DNA testing. The father is identified on S.M.S. 's birth certificate as her father, but not on S.T.S.'s birth certificate. The Texas Department of State Health Services confirmed that no father claimed paternity and no evidence in the record demonstrates that the father ever married the mother or undertook any effort to establish legal paternity.


         The trial court terminated the father's parental rights pursuant to section 161.002, which allows for termination if (1) after being served with citation, the alleged father "does not respond by timely filing an admission of paternity or a counterclaim for paternity" or (2) when the child is over one year of age at the time the petition for termination of the parent-child relationship is filed, he has not registered with the state paternity registry and, after the exercise of due diligence by the Department, "his identity is known but he cannot be located." Tex. Fam. Code Ann. § 161.002(b)(1), (b)(2)(B) (West Supp. 2016). The father concedes that the evidence is legally and factually sufficient to support termination of his parental rights under subsection (b)(1), but contends that it is not sufficient to support termination under subsection (b)(2)(B). Subsections 161.002(b)(1) and 161.002(b)(2), however, provide alternate grounds for termination; in other words, a finding under either subsection (b)(1) or subsection (b)(2) provides a sufficient predicate for termination as long as the evidence also supports the trial court's finding that termination is in the children's best interest. See Tex. Fam. Code Ann. ยง 161.002(b) (listing four possible predicate grounds for termination of an alleged biological father's parental rights, ...

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