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In re S.C.

Court of Appeals of Texas, Second District, Fort Worth

June 13, 2019

In the Interest of S.C., a Child

          On Appeal from the 393rd District Court Denton County, Texas Trial Court No. 17-5158-393

          Before Kerr, Pittman, and Birdwell, JJ.

          MEMORANDUM OPINION

          Mark T. Pittman, Justice.

         Appellants E.C. (Father) and M.G. (Mother)-long-time methamphetamine users who continued to use methamphetamine after their newborn daughter Sallie's June 2017 removal and who used the drug just days before testifying at the December 2018 termination trial-appeal from the trial court's judgment terminating their parent-child relationships with Sallie and appointing Appellee the Texas Department of Family and Protective Services (TDFPS) her Permanent Managing Conservator (PMC).[1] After the termination trial, the jury found that termination of each parent-child relationship was in Sallie's best interest and that Mother and Father:

• knowingly placed or knowingly allowed [Sallie] to remain in conditions or surroundings which endangered [her] physical or emotional well-being . . . [;]
• engaged in conduct, or knowingly placed [Sallie] with persons who engaged in conduct, which endangered [her] physical or emotional well-being . . . [;]
• constructively abandoned [Sallie], who ha[d] been in the . . . temporary managing conservatorship of [TDFPS] for not less than six months, and (1) [TDFPS] ha[d] made reasonable efforts to return [her] to the parent[s]; (2) [they had] not regularly visited or maintained significant contact with [Sallie]; and (3) [they had] demonstrated an inability to provide [her] with a safe environment; and
• failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain [Sallie's] return[,] . . . [when she had] been in the temporary managing conservatorship of [TDFPS] for not less than nine months as a result of [her] removal from the parent for abuse or neglect[.]

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (2). The trial court approved the findings and incorporated them into its order terminating the parents' rights.

         In two issues, one with four subparts, Father contends (1) he was denied due process by (a) the denial of appointed trial counsel (Trial Counsel) for fifteen months and during critical stages of the proceeding; (b) the ineffectiveness of Trial Counsel; (c) the trial court's denial of a jury trial on the issue of conservatorship; or alternatively, (d) the trial court's refusal to submit a jury question on the issue of conservatorship (Issue One); and (2) that the evidence is legally and factually insufficient to support the best-interest finding against him (Issue Two). In one combined issue, Mother contends that "the trial court err[ed] in limiting the scope of conservatorship testimony available to the jury and by refusing to include conservatorship questions in the jury charge." Because we hold that the evidence is legally and factually sufficient to support the termination of Father's parental rights; that the trial court did not violate Father's rights to due process or abuse its discretion by appointing Father's Trial Counsel forty days before trial; that the trial court did not reversibly err by not having a jury trial on Sallie's conservatorship and by not submitting the issue of Sallie's conservatorship to the jury; and that Father did not satisfy his burden to prove ineffective assistance of Trial Counsel, we affirm the trial court's judgment as to Father. Because we hold that Mother lacks standing to challenge alleged errors that could only affect Sallie's conservatorship, we dismiss Mother's appeal.

         BACKGROUND FACTS

         I. Mother Was a Chronic Methamphetamine User Who Continued to Use Methamphetamine After Sallie's Removal Until the Trial Almost Eighteen Months Later.

         Sallie was not the first child removed from Mother's care because of her drug use. Mother's-but not Father's-son Charlie was born in 2013. To her recollection, he was removed about six months later because they both tested positive for methamphetamine; she had begun using methamphetamine when he was about six months old and kept her methamphetamine in his room. Charlie's paternal aunt Bettie and Mother agreed to an order naming Bettie his PMC.

         Because of Charlie's positive drug test, Mother was placed on deferred adjudication community supervision for injury to a child; it was later revoked after she tested positive for methamphetamine possession multiple times, and she was convicted.

         Mother met Father in May 2016; they were always "on and off." She became pregnant with Sallie. Mother estimated that she used methamphetamine more than thirty times during the pregnancy; her last methamphetamine use during her pregnancy with Sallie occurred a day or two before her June 2017 delivery. Mother admitted that Father used methamphetamine with her but claimed that he did not use with her during her pregnancies. Sallie tested positive for methamphetamine at her birth and went to live with the foster parents (the Fosters) when she left the hospital three days later.

         Mother and Father's second child, Annie, was born in August 2018 while this case was pending. Mother testified that she used methamphetamine weekly during that pregnancy, that Father lived with her, and that he did not know she was using methamphetamine during the pregnancy but she assumed "he questioned it." Like Sallie, Annie tested positive for methamphetamine at birth and was removed from the hospital. She too was placed with the Fosters. Annie is the subject of a separate proceeding.

         Mother continued her drug use, using as recently as within a week of testifying at trial. She admitted that she had completed no court-ordered services except attending Narcotics Anonymous and Alcoholics Anonymous (AA) meetings and that she had not attended those meetings in the last month, had no sponsor, and could not remember the first step or explain the fourth step. Mother testified that:

• Mother and Father lived with Jeff, a fellow drug user;
• Mother did not know Jeff's last name;
• Mother did not have stable employment;
• Mother had endangered Sallie by using methamphetamine and hanging out with other drug users, including Father;
• Mother was not asking for Sallie's return;
• Placing Sallie with Mother would not be in Sallie's best interest;
• Mother's use of methamphetamine was not in Sallie's best interest; and
• The termination of Mother's parental rights was in Sallie's best interest.

         II. Father Was a Chronic Methamphetamine User Who Continued to Use Methamphetamine After Sallie's Removal Until the Trial Almost Eighteen Months Later.

         Father testified:

• He has convictions for methamphetamine possession and driving with a suspended license;
• He relapsed and began using methamphetamine again in 2012 after fifteen years of sobriety;
• He started using methamphetamine again because he was overweight and had bad sleep apnea and high blood pressure, but his insurance would not cover a lap band and his doctor would not prescribe a stimulant;
• He last used methamphetamine about five days before he testified at trial;
• He did not know that Mother had used methamphetamine while she was pregnant with Sallie;
• He used methamphetamine during that pregnancy but not in front of Mother;
• He and Mother did not live together all the time during her pregnancy with Sallie;
• He probably possessed methamphetamine when they did live together;
• He had probably used methamphetamine more than twenty but less than fifty times with Mother;
• He did not use methamphetamine with Mother when she was pregnant with Annie;
• He did not suspect Mother was using methamphetamine when she was pregnant;
• During the pregnancies, Father hoped Mother had stopped using drugs and she had told him that she had stopped;
• Mother did not act differently when she was high;
• He completed the psychological evaluation, began Fatherhood classes, and attended AA, but he admitted that he last attended an AA meeting six weeks earlier, had no sponsor, and had completed no steps;
• He did not complete any court-ordered services;
• He refused two drug tests during the case;
• He probably saw Sallie twenty times in eighteen months;
• His missed visits were his and CPS's fault;
• He and Mother were currently trying to quit using drugs;
• Addiction had affected his children's lives;
• He disagreed that he had endangered Sallie through his conduct or through the environment she had been in;
• He disagreed that children exposed to methamphetamine in utero can have long-lasting problems;
• He agreed that he failed to comply with the provisions of the trial court's temporary orders that set out the steps he needed to take to have Sallie returned;
• He agreed that Sallie had been in TDFPS's care for more than nine months;
• He disagreed that Sallie had been removed from his care for abuse or neglect;
• He would not take Sallie to Jeff's if TDFPS returned her to him;
• Father was not asking for Sallie's return;
• Father knew that his parental rights would be terminated; he was "not stupid"; and
• He did not think his rights should be terminated until his "girls [were] placed where [he thought was] best for the girls."

         III. The Parents Wanted Sallie to Live with Charlie's Aunt Addie.

         Mother and Father did not want Sallie to be returned to their care but also did not want their rights to be terminated, both proposing conservatorship instructions contingent on "no" answers to best-interest questions. Instead, they wanted Sallie placed with Bettie's sister Addie so that Sallie could grow up near Charlie, Sallie's half-brother whom she met once before trial. By the time Mother and Father filled out placement forms, Sallie was five to six months old; by the time Addie was approved by TDFPS as a backup placement for Sallie, Sallie was approximately eleven months old. (CPS ultimately rejected Bettie as a placement for Sallie, in part because Addie had already been approved as a backup placement.) TDFPS conceded that the home-study process does not typically take as long as Addie's did.

         DISCUSSION

         I. Mother Has No Standing to Challenge Conservatorship.

         In Mother's sole issue, she asks, "Did the trial court err in limiting the scope of conservatorship testimony available to the jury and by refusing to include conservatorship questions in the jury charge?" She asks only for a new trial on an appropriate post-termination conservator. Mother has not appealed the trial court's findings terminating her relationship with Sallie and is therefore bound by those findings. See In re Y.V., No. 02–12–00514–CV, 2013 WL 2631431, at *1–2 (Tex. App.-Fort Worth June 13, 2013, no pet.) (mem. op.). Mother has consequently become a former parent with no legal rights regarding Sallie See id.; see also Tex. Fam. Code Ann. § 161.206(b) ("[A]n order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides."). With no legal rights regarding Sallie, Mother lacks standing to challenge alleged errors that could only affect post-termination conservatorship. See Y.V., 2013 WL 2631431, at *1–2 (citing In re H.M.M., 230 S.W.3d 204, 204–05 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (holding former mother did not have standing to appeal post-termination custody decision when she did not appeal the termination of her parental rights)); see also In re A.N.A., No. 05-18-00169-CV, 2018 WL 2228624, at *1 (Tex. App.-Dallas May 16, 2018, no pet.) (mem. op.) (citing same). The cases Mother cites in her brief do not control our disposition of this issue because the parents in those cases also asked for relief regarding the termination of their parental rights, see In re J.A.J., 243 S.W.3d 611, 615 (Tex. 2007); Corrales v. Dep't of Fam. and Protective Servs., 155 S.W.3d 478, 481, 484–87 (Tex. App.-El Paso 2004, no pet.); or the jury did not terminate their parental rights, In re B.O., No. 02-16-00485-CV, 2017 WL 2590571, at *1 (Tex. App.-Fort Worth June 15, 2017, no pet.). We dismiss Mother's appeal. See In re T.Y., No. 05-18-00287-CV, 2018 WL 3130652, at *1 (Tex. App.-Dallas June 25, 2018, pet. denied) (mem. op.); A.N.A., 2018 WL 2228624, at *1–2.

         II. The Evidence is Legally and Factually Sufficient to Support the Termination of Father's Parental Rights.

         A. Father Has Forfeited Any Challenge to the Subsection (b)(1) Findings.

         For a trial court to terminate a parent–child relationship, TDFPS must prove two elements by clear and convincing evidence: 1) that the parent's actions satisfy one ground listed in family code section 161.001(b)(1); and 2) that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it "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; E.N.C., 384 S.W.3d at 802.

         Father admits in his brief that in the trial court he "did not contest the predicate grounds for termination under at least one of TFC Sections 161.001(b)(1)(D)(E)(N) or (O)." In a footnote he states that he "understands that only one ground is required and does not contest the 161.001(b)(1)(O) grounds." But in that same footnote, Father:

denies that there is clear and convincing evidence that he[,] a male, used drugs while he was pregnant. He denies there is clear and convincing evidence that he placed the child anywhere or with anyone because she was taken directly from the hospital.

         By not challenging any of the jury findings on the four (b)(1) grounds in the trial court, Father forfeited any appellate complaint about them. See In re J.S., No. 02-18-00164-CV, 2018 WL 5833438, at *2 (Tex. App.-Fort Worth Nov. 8, 2018, pet. denied) (mem. op.) (relying on Tex. R. Civ. P. 324(b)(2)–(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003); T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992)). Thus, to the extent Father's footnote attempts to somehow now for the first time challenge any of those findings, we overrule that unnumbered, unpreserved challenge. See id.[2]

         B. The Evidence is Legally and Factually Sufficient to Support the Best-Interest Finding Against Father.

         In his second issue, Father contends that the evidence is legally and factually insufficient to support the best-interest finding against him. In determining whether evidence is sufficient to support a best-interest finding, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).

         To determine whether the evidence is legally sufficient to support the trial court's best-interest finding, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(2). We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. J.P.B., 180 S.W.3d at 573. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id.

         We must perform "an exacting review of the entire record" in determining the factual sufficiency of the evidence supporting the termination of a parent–child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfinder's findings and do not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that termination of Father's and Sallie's parent–child relationship would be in her best interest. See Tex. Fam. Code Ann. § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient to support the best-interest finding. C.H., 89 S.W.3d at 18–19.

         1. We Consider the H olle y Factors in Reviewing the Best- Interest Finding.

         Although we generally presume that keeping a child with a parent is in the child's best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child's well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence probative of a child's best interest may be the same evidence that is probative of a subsection (1) ground. E.C.R., 402 S.W.3d at 249; C.H., 89 S.W.3d at 28.

         We also consider the evidence in light of nonexclusive factors that the trier of fact may apply in determining the child's best interest:

(A) the child's desires;
(B) the child's emotional and physical needs, now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the child's best interest;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the parent's acts or omissions indicating that the existing parent–child relationship is not a proper one; and
(I) any excuse for the parent's acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, "we consider, among other evidence, the Holley factors" (footnote omitted)); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient to support a finding that termination is in the child's best interest. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id.

         2. The Holley Factors Support the Best-Interest Finding.

         a. The Most Compelling Best-Interest Evidence for Termination is Father's Methamphetamine Use and Addiction.

         The most significant best-interest evidence is the endangerment evidence. Father is a chronic abuser of methamphetamine, lives with other drug users, including Mother, and by his own admission was not anticipating or ready for Sallie to be returned to his care.

         b. The Fosters Were the Only Family Eighteen-Month-Old Sallie Had Known.

         Although Sallie was too young to express her desires at trial, she was bonded to the Fosters. Abra Piacente, the TDFPS conservatorship worker since May 2018, described how Sallie was doing with the Fosters at the time of trial:

She's doing very well in her placement. I have visited her several times there. She's very happy, very healthy. She's walking. She's attempting to talk. It's mostly gibberish, but you can understand some words here and there. She's extremely bonded to the other children that are in the home. I have seen her interact with the kids, the foster parents, and you can tell that there is a very strong relationship between everybody in that home.

         In addition to fostering Sallie and Annie, the Fosters have two sons. Piacente testified that Sallie's interactions with the Fosters' children were just like those of siblings: They played with toys and took toys away from each other. They seemed very bonded and very happy. Mrs. Foster echoed that sentiment, testifying that Sallie looked at the Fosters' sons as her brothers.

         c. The Evidence Shows that the Fosters Were Meeting Sallie's Needs ...


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