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In re S.J.R.-Z.

Court of Appeals of Texas, Fourth District, San Antonio

December 20, 2017

IN THE INTEREST OF S.J.R.-Z., J.C.Z., A.R.Z., L.L.L., K.K.H., and J.G.H. III, Minor Children

         From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2015-PA-02211 Honorable Martha Tanner, Judge Presiding

         Opinion on Motion for Rehearing

          Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

          OPINION

          Patricia O. Alvarez, Justice

         On August 9, 2017, this court issued an opinion and judgment in this appeal and the Texas Department of Family and Protective Services filed a motion for rehearing. We grant the motion, withdraw our previous opinion and substitute this opinion in its stead.

         This is an accelerated appeal of the trial court's order terminating Appellant Mom's parental rights to her children, S.J.R.-Z., J.C.Z., A.R.Z., L.L.L., K.K.H., and J.G.H. III, and Appellant Dad's parental rights to K.K.H. and J.G.H. III. In both appeals, Mom and Dad contend (1) the evidence does not support the trial court's termination based on Texas Family Code subsections 161.001(1)(b)(D), (E), and (O), See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016), and (2) the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating Dad's parental rights was in K.K.H.'s and J.G.H. III's best interests, and that terminating Mom's parental rights was in the best interests of her children, see Tex. Fam. Code Ann. § 161.001(b)(2). We affirm the trial court's judgment.

         Factual Background

         On August 10, 2015, the Texas Department of Family and Protective Services received a referral for neglectful supervision following the birth of J.G.H. III, who tested positive for marijuana. Mom admitted drug usage while pregnant. The Department attempted to work with Mom in Family Based Safety Services; however, Mom provided false information in an attempt to mislead the Department. On October 1, 2015, following a home visit, the Department determined the children's safety required removal based on Mom's failure to comply with the safety plan.

         On October 20, 2015, the Department filed its Original Petition for Protection of Children, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Following an emergency order, the children were placed in the temporary managing conservatorship of the Department. Mom and Dad were ordered to comply with each requirement set out in the Department's service plan during the pendency of the suit. Both Mom and Dad were granted visitation with the children.

         On November 13, 2015, the Department filed individual family service plans for Mom and Dad; the plans set forth the services and classes required before the children could return home to either Mom or Dad. After several status and permanency hearings, on February 21, 2017, the trial court called the matter for trial. Although Dad was not present for the first day of the hearing, he testified during the second day.

         Following a hearing, the trial court terminated Mom's and Dad's parental rights based on the following:

(1) Mom: the trial court terminated Mom's parental rights to S.J.R.-Z., J.C.Z., A.R.Z., L.L.L., K.K.H., and J.G.H. III pursuant to Texas Family Code Section 161.001(b)(1)(O), see id. § 161.001(b)(1)(O), and the trial court further found termination of Mom's parental rights was in the S.J.R.-Z.'s, J.C.Z.'s, A.R.Z.'s, L.L.L.'s, K.K.H.'s, and J.G.H. III's best interests, see id. § 161.001(b)(2); and
(2) Dad: after being served with citation, Dad failed to file an admission of paternity or counterclaim for paternity under Chapter 160 of the Texas Family Code, see id. § 161.002(b)(1); Dad failed to comply with Texas Family Code Section 161.001(b)(1) (O), see id. § 161.001(b)(1)(O), and termination of Dad's parental rights was in K.K.H.'s and J.G.H. III's best interests, see id. § 161.001(b)(2).

         This appeal ensued.

         We turn first to the Department's contention that Dad's failure to challenge an independent ground in support of the trial court's ruling is dispositive of his appeal.

         Failure to Assert Paternity

         Following the termination hearing, the trial court's order of termination includes the trial court's finding that,

by clear and convincing evidence [ ], after having waived service of process or being served with citation in this suit, [Dad] did not respond by timely filing an admission of paternity or by filing a counterclaim for paternity or for voluntary paternity to be adjudicated under chapter 160 of the Texas Family Code before the final hearing in this suit.

See Tex. Fam. Code Ann. § 161.002(b)(1); Phillips v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 348, 357 (Tex. App.-Austin 2000, no pet.) (section 161.002(b)(1) permits trial court to summarily terminate alleged father's parental rights where he fails to assert his paternity).

         The evidence is undisputed that Dad was not listed on either K.K.H.'s or J.G.H. III's birth certificate, and he never signed a statement acknowledging paternity of either K.K.H. or J.G.H. III. The Department argues this court need look no further than the trial court's determination regarding Dad's failure to establish paternity.

         This court previously held, "[t]here are no formalities that must be observed when filing an admission of paternity or for such an admission to be effective." In re J.L.A., No. 04-13-00857-CV, 2014 WL 1831097, at *2 (Tex. App.-San Antonio May 7, 2014, no pet.) (mem. op.); accord In re K.W., No. 02-09-00041-CV, 2010 WL 144394, at *3 (Tex. App.-Fort Worth Jan. 14, 2010, no pet.) (mem. op.). "In fact, by appearing at trial and admitting that he is the child's father, an alleged father triggers his right to require the Department to prove one of the grounds for termination under section 161.001(1) and that termination is in the best interest of the child." J.L.A., 2014 WL 1831097, at *2.

         Here, Dad appeared at trial and testified that he was K.K.H. and J.G.H. III's father. In addition, Dad's trial counsel maintained that Dad was K.K.H. and J.G.H. III's father, and counsel advocated against termination of Dad's parental rights. See id. (citing Toliver v. Dep't of Family & Protective Servs., 217 S.W.3d 85, 105 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (holding the trial court erred in terminating parental rights under section 161.002(b)(1), when the alleged father appeared at trial, asserted paternity, and opposed the termination of his parental rights)). Accordingly, we conclude that Dad's appearance and participation in the trial court, including his sworn admission that he was K.K.H. and J.G.H. III's father, was sufficient to trigger his right to have the Department prove one of the grounds for termination listed in section 161.001(b)(1).

         The trial court's judgment sets forth the basis for termination. In addition to the statutory findings pursuant to Texas Family Code section 161.001(b)(1)(O) (failure to complete the court-ordered service plan), see Tex. Fam. Code Ann. § 161.001(b)(1)(O), and the trial court's finding that termination of Dad's parental rights was in K.K.H. and J.G.H. III's best interests, see id. § 161.001(b)(2), the trial court also found, by clear and convincing evidence, that Dad failed to timely file an admission of paternity or counterclaim for paternity under Chapter 160 of the Texas Family Code, see id. § 161.002(b)(1). On appeal, Dad only challenges the trial court's findings as to the statutory violations of his failure to comply with the court-ordered service plan and the trial court's best interests findings; Dad does not raise an appellate challenge to the trial court's finding that Dad failed to file an admission of paternity.

         An appellant must challenge all independent bases or grounds that fully support a judgment or appealable order. See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 650 (Tex. App.-Dallas 2015, no pet.); Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681- 82 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also In re N.L.D., 412 S.W.3d 810, 818 (Tex. App.-Texarkana 2013, no pet.) (holding that when a parent failed to challenge on appeal a ground for termination of parental rights, the court could affirm on the unchallenged ground without examining the sufficiency of evidence to support challenged grounds); In re Elamex, S.A. de C.V., 367 S.W.3d 879, 888 (Tex. App.-El Paso 2012, orig. proceeding) ("If the appellant fails to challenge all possible grounds, we must accept the validity of the unchallenged independent grounds and affirm the adverse ruling."). The requirement that an appellant challenge each independent ground "is based on the premise that an appellate court normally cannot alter an erroneous judgment in favor of an appellant in a civil case who does not challenge that error on appeal." Britton, 95 S.W.3d at 681.

         By failing to raise an appellate challenge to the trial court's finding that Dad failed to file an admission of paternity, Dad failed to challenge all of the independent grounds listed in the termination order. Accordingly, this court must accept this unchallenged finding as true and we affirm the trial court's order as to Dad's termination of his parental rights.[1] See id.; N.L.D., 412 S.W.3d at 818; Elamex, 367 S.W.3d at 888.

         Because termination under Texas Family Code section 161.002(b)(1) does not require proof that termination is in the best interests of the children, see Tex. Fam. Code Ann. § 161.002(b)(1), we turn to the trial court's involuntary termination of Mom's parental rights pursuant to section 161.001(b)(1)(O) of the Texas Family Code, see id. § 161.001(b)(1)(O).

         Sufficiency of the Evidence

         A. Standards of Review

         "Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).

         An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'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; J.F.C., 96 S.W.3d at 264.

         "There is a strong presumption that the best interest[s] of the [children are] served by keeping the child[ren] with [their] natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest[s] of the child[ren]." Id.

         1. Legal Sufficiency

         When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally [sufficient]." See id. (quoting J.F.C., 96 S.W.3d at 266). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.

         2. Factual Sufficiency

         Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.-San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25. "If, in light of the entire record, [unless] 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, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.

         B. Testimony Elicited during the Termination Hearing

         The trial court terminated the parental rights of each of the different fathers. We, therefore, limit the facts to the necessary witnesses to Mom's involvement with the Department.

         1. Department Employees and Service Providers

         a. Cecilia Ramirez

         Cecilia Ramirez, an investigator for the Department, testified she received the referral in August of 2015, for negligent supervision; J.G.H. III was born with marijuana in his system. At the time, Ramirez reported three major areas of concern: Mom admitted using marijuana during her pregnancy, Mom and Dad had a dispute and he tried to run her over with his vehicle, and Mom's mental stability-"she did tell me she felt overwhelmed with the children and couldn't handle them all." Ramirez and the Department implemented a safety plan wherein Mom's friend, Abigail Gonzalez, would remain in the house with the children. At the time of the removal, Mom's six-year-old son, J.C.Z., was residing with the maternal grandmother. The Department, however, subsequently removed the child for negligent supervision related to grandmother's methamphetamine use.

         b. Kathleen Batteen

         Kathleen Batteen was the original Department caseworker. Batteen testified the family was very evasive. Her first visit to the home, on October 15, 2015, occurred approximately five weeks after J.G.H. III's birth. During the visit, Mom and Dad both admitted marijuana use in the home. Mom described her relationship with Dad as "contentious" and told Batteen "[she] and Dad got into an argument outside and he almost ran her over with a car." Mom further "made admission of multiple personality and depression. . . . [I]n September [of 2015] she was admitted for suicidal ideations."

         When asked about the state of the children, Batteen testified that S.J.R.-Z. was at school at the time of her home visit. Batteen testified the home was infested with bed bugs and the children were covered in bug bites and head lice. One-month-old J.G.H. III was in his swing, "he was not buckled while he was in his swing and he was an infant and had a bottle in his mouth. So he was unable to move his face if-if he was choking." Fourteen-month-old K.K.H. was carrying a bottle around the house and had a full diaper. Batteen noted that K.K.H. appeared to have developmental delays and was still unable to walk.

         Four-year-old A.R.Z. and two-year-old L.L.L. were running around the home, and also had full diapers. Mom acknowledged used of methamphetamines, marijuana, and opiates during her pregnancy with A.R.Z. and Batteen expressed concern regarding the possibility of developmental delays.

         Batteen testified about concerns for domestic violence, substance abuse, mental health issues, and the physical care of the children, resulting in the children's removal. K.K.H. and J.G.H. III, the two youngest children, were placed with a relative; the other three children were placed with their maternal aunt. The safety plan for the two youngest children only lasted for a couple of days; the relative dropped them off at the Department stating she was unable to continue caring for ...


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