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A. C. v. Texas Department of Family And Protective Services

Court of Appeals of Texas, Third District, Austin

June 6, 2019

A. C., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY NO. C170123CPS, THE HONORABLE GARY L. BANKS, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          OPINION

          GISELA D. TRIANA, JUSTICE

         This is an appeal from a final order, following a bench trial, terminating the parental rights of appellant A.C. (the father) to his infant daughter, K.W. (the child). In eight issues on appeal, the father asserts that: (1)-(2) the district court lacked subject-matter jurisdiction over the case because the claims against the father were not "ripe" at the time the case was filed; (3) the evidence is legally and factually insufficient to support the district court's termination findings; (4) the father received ineffective assistance of counsel at trial; and (5)-(8) the termination proceedings violated various provisions of the United States and Texas Constitutions. We will affirm the district court's order.

         BACKGROUND

         Four days after the child was born, she tested positive for methamphetamines on December 11, 2017. On that same date, the Texas Department of Family and Protective Services (the Department) filed an "Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship." The parties to the suit were A.W. (the mother) and the father, who was listed in the petition as the "alleged father." Brandy Walker, the Child Protective Services (CPS) investigator assigned to the case, filed an affidavit explaining that the father was listed as an "alleged father" because the Department had been unable to establish the identity of the child's father when suit was filed. However, approximately two months after suit was filed, DNA testing confirmed that the father was the child's biological father, and the district court entered an order establishing the parent-child relationship between the father and the child on February 26, 2018.

         While the case was pending, the mother signed an affidavit voluntarily relinquishing her parental rights to the child. See Tex. Fam. Code § 161.001(b)(1)(K). The case proceeded to a bench trial on October 25, 2018. Three witnesses testified at trial: the father; Kristen Laskiewicz, the conservatorship caseworker assigned to the case; and L.H., the father's mother (the grandmother). We will discuss their testimony below when reviewing the sufficiency of the evidence.

         At the conclusion of trial, the district court took the matter under advisement and later entered an order terminating the parental rights of the father and the mother to the child. The district court found that termination of their parental rights was in the best interest of the child, that the mother had relinquished her parental rights to the child, and that the father had committed several statutory grounds for termination. See id. § 161.001(b)(1)(D), (E), (N), (O), (2). The father subsequently filed a motion for new trial, which the district court denied. This appeal by the father followed.

         ANALYSIS

         Subject matter jurisdiction

         While his motion for new trial was pending, the father filed a plea to the jurisdiction, asserting for the first time that the district court lacked subject-matter jurisdiction over the case because the Department's claims against the father were not "ripe" when the termination suit was filed. The district court denied the plea. In his first and second issues, the father maintains that the district court lacked subject-matter jurisdiction over the case.

         We will treat the father's ripeness complaint as challenging the trial court's subject-matter jurisdiction. See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998) ("Ripeness, like standing, is a threshold issue that implicates subject matter jurisdiction, and like standing, emphasizes the need for a concrete injury for a justiciable claim to be presented."). The basis of the father's argument is that, at the time the Department filed suit, the father's legal status was merely that of an "alleged father." Thus, in the father's view, "the only timely, legitimate statutory cause of action [the Department] had against [the father] was a suit to establish his paternity under Chapter 160 of the Texas Family Code." See Tex. Fam. Code § 160.201(b). Moreover, the father contends that because he was an alleged father, a termination suit could have been brought against him only under the authority of Section 161.002 of the Texas Family Code, which sets out the exclusive grounds for termination of the rights of an "alleged father." See id. § 161.002. According to the father, because of various timing and citation requirements contained within Section 161.002, he could not have committed any of those statutory grounds for termination at the time the Department's suit was filed. See id. § 161.002(b)(1) (providing for termination if, "after being served with citation, [the alleged father] does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160"), (2) (providing for termination if, among other requirements, "the child is over one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed"), (3) (providing for termination if "the child is under one year of age at the time the petition for termination of the parent-child relationship or for adoption is filed and he has not," within 31 days following the child's birth, "registered with the paternity registry under Chapter 160"), (4) (providing for termination if alleged father "has registered with the paternity registry under Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner").

         However, this was more than a suit to terminate parental rights. This was a suit by the Department for the protection of a child brought under Chapter 262 of the Texas Family Code. See id. §§ 262.001-.353. Multiple issues were to be determined in the case, including termination, paternity, and conservatorship. It is undisputed that when the suit began and the father was merely an "alleged father," the father believed himself to be the child's biological father and intended to care for the child.[1] At the same time, the Department was seeking temporary custody of the child, determination of paternity, and, if the father was determined to be the biological father of the child, termination of the father's parental rights. Thus, in filing the suit, the Department was not asking the court to decide hypothetical or "abstract questions of law without binding the parties." See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Instead, the Department was asking the court to decide a "real controversy between the parties" that would be "actually resolved by the judicial relief sought." See Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 683 (Tex. App.-Austin 2004, no pet.). Moreover, the suit was brought regarding not only the child's father, but also the child's mother. In the affidavit attached to its petition, the Department alleged that the child had tested positive for methamphetamines at birth. Therefore, when the Department's suit was filed, the "threat of harm" to the child was "more than conjectural, hypothetical, or remote." See Patel v. Texas Dep't of Licensing & Regulation, 469 S.W.3d 69, 78 (Tex. 2015). The harm to the child had already occurred-the child had been exposed to methamphetamines in utero.

         To the extent that the father is arguing that he could not have been responsible for that or any other injury to the child due to his being an "alleged father" and therefore not a proper party to the termination suit, or that the Department should have filed its claim for termination of the father's parental rights in a separate lawsuit, after his identity as the child's biological father had been established, the father is conflating the doctrines of ripeness and joinder. Ripeness focuses on whether an injury alleged in a lawsuit "has occurred or is likely to occur," see Patterson, 971 S.W.2d at 442, whereas joinder focuses on whether the lawsuit includes the proper parties and / or claims, see Attorney Gen. of Tex. v. Lavan, 833 S.W.2d 952, 954 (Tex. 1992); Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974); In re D.L.B., 943 S.W.2d 175, 180 (Tex. App-San Antonio 1997, no writ). The father's arguments- which concern whether he, as an alleged father, should have been joined as a party to the action and, if so, whether the Department's claim for termination of the father's parental rights should have been joined to its claim to adjudicate parentage-implicate joinder.

         Complaints regarding joinder are not jurisdictional in nature and must be raised prior to trial or they are waived. See, e.g., In re J.W.M., 153 S.W.3d 541, 546 (Tex. App.- Amarillo 2004, pet. denied); Rosales v. H. E. Butt Grocery Co., 905 S.W.2d 745, 751 (Tex. App.-San Antonio 1995, writ denied); University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 200 (Tex. App.-Austin 1991, no writ); see also Tex. R. Civ. P. 41 ("Misjoinder of parties is not ground for dismissal of an action."); Houston N. S. R. Co. v. Tyrrell, 98 S.W.2d 786, 796 (Tex. 1936) ("If there were misjoinder, it would not deprive the trial court of jurisdiction and would not warrant dismissal of the entire proceeding. The question is properly raised by special exception or by plea in abatement; and the improper joinder of parties is not a ground for dismissal of the suit as to those properly joined."); Scarbrough v. Purser, No. 03-13-00025-CV, 2016 Tex.App. LEXIS 13863, at *64-65 (Tex. App.-Austin Dec. 30, 2016, pet. denied) (mem. op.) ("[M]isjoinder of actions is a procedural, not jurisdictional matter."). Because the father failed to raise his complaints until after the trial had concluded, they are waived. See Tex. R. App. P. 33.1(a). Moreover, even if the father's arguments had been preserved, the Texas Family Code and the Texas Rules of Civil Procedure contain broad joinder provisions. See, e.g., Tex. Fam. Code §§ 102.001(b) ("One or more matters covered by this title may be determined in the suit [affecting the parent-child relationship]."); 160.603(2) (providing that "a man whose paternity of the child is to be adjudicated" "must be joined as [a party] in a proceeding to adjudicate parentage"); 160.610(a) ("[A] proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, possession of or access to a child, child support, divorce, annulment, or probate or administration of an estate or another appropriate proceeding."); Tex.R.Civ.P. 39(a) ("A person who is subject to service of process shall be joined as a party in the action if . . . he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may . . . as a practical matter impair or impede his ability to protect that interest."), 40(a) (providing for permissive joinder of defendants "if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action"), 51 (providing for joinder of claims and remedies), 174(a) ("When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions."). We cannot conclude that the district court abused its discretion in joining the parties and claims in this case pursuant to those provisions.

         We overrule the father's first and second issues.

         Evidentiary sufficiency

         In his third issue, the father argues that the evidence is legally and factually insufficient to justify terminating his parental rights. A trial court may order termination of the parent-child relationship if the Department proves by clear and convincing evidence that (1) the parent has committed one of several statutory grounds for termination and (2) termination is in the best interest of the child. See Tex. Fam. Code § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). The father contends that the evidence is legally and factually insufficient to prove either requirement.

         Standard of review

         "Proceedings to terminate the parent-child relationship implicate rights of constitutional magnitude that qualify for heightened judicial protection." In re A.C., 560 S.W.3d 624, 626 (Tex. 2018). "Involuntary severance of parental rights thus requires 'clear and convincing evidence' that termination is warranted and in the child's best interest." Id. "Because termination of parental rights 'is complete, final, irrevocable and divests for all time' the natural and legal rights between parent and child, a court cannot involuntarily sever that relationship absent evidence sufficient to '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.'" Id. at 630 (quoting Tex. Fam. Code § 101.007; Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). "This heightened proof standard carries the weight and gravity due process requires to protect the fundamental rights at stake." Id.

         "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." Id. "In conducting a legal-sufficiency review, the reviewing court cannot ignore undisputed evidence contrary to the finding, but must otherwise assume the factfinder resolved disputed facts in favor of the finding." Id. at 630-31. "Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that the finding was true." Id. at 631.

         "Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding." Id. "In a factual-sufficiency review, the appellate court must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding." Id. "Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id.

         Statutory grounds for termination

         The Department alleged and the district court found that the father had: (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; (3) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months; and (4) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O). "[C]lear and convincing proof of any one ground will support a judgment terminating parental rights, if similar proof also exists that termination is in the child's best interest." In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Therefore, when multiple statutory grounds for termination are found to ...


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