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In re A.L.P.

Court of Appeals of Texas, First District

August 22, 2019

IN THE INTEREST OF A.L.P., A CHILD

          On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-252443

          Panel consists of Justices Lloyd, Goodman, and Landau.

          MEMORANDUM OPINION

          RUSSELL LLOYD JUSTICE.

         Appellant Curtis McGuire, proceeding pro se, appeals from the trial court's order terminating his parental rights to A.L.P. In two issues, McGuire contends that (1)the trial court abused its discretion in denying his motion for a continuance and (2)the evidence is insufficient to support the trial court's finding that terminating his parental rights is in the child's best interest. We affirm.

         Background

         In 2010, McGuire sexually assaulted his twelve-year old stepdaughter, Anna.[1]The sexual abuse continued for several years. On July 13, 2013, Anna, who was then fifteen years old, gave birth to A.L.P. DNA testing revealed that McGuire is A.L.P.'s father.

         On May 7, 2015, McGuire pleaded guilty to, and was convicted of, aggravated sexual assault of a child (Anna) and sexual assault of a child (Anna). The trial court sentenced him to concurrent terms of twenty-three years' and twenty years' imprisonment, respectively.[2]

         On June 20, 2018, appellee Casa de Esperanza de los Ninos, Inc. ("Casa")[3]filed its original petition to terminate Anna's and McGuire's parental rights to A.L.P. On October 22, 2018, the parties' counsel and McGuire signed a request for a January 28, 2019 trial setting. The trial court granted the motion.

         On October 30, 2018, Anna's attorney moved to withdraw from the case. The motion to withdraw included notice to Anna of the January 28, 2019 trial setting. On November 16, 2018, Casa served requests for admissions and written interrogatories on Anna, and, on November 19, 2018, Casa served a second request for admissions on Anna. On November 26, 2018, the trial court granted Anna's counsel's motion to withdraw. On December 26, 2018, Anna emailed Casa's counsel stating that she no longer resided at her last known address and that she did not have a temporary address to provide. Casa's counsel responded to Anna's email, advising her of the January 28, 2019 trial setting and that she needed to be present at trial.

         On January 22, 2019, the trial court held a hearing on Casa's motion to waive mediation and its motion to deem admissions of Anna. McGuire attended the hearing. Casa's counsel informed the trial court that Anna had received notice of the motions via email service at the email address she provided to Casa's counsel on December 26, 2018, Anna had opened both email messages, and Anna had not responded to the discovery requests. The trial court granted Casa's motions.

         A bench trial was held on January 28, 2019. At the start of trial, McGuire moved for a continuance based on Anna's failure to appear and his desire to subpoena her. McGuire stated that Anna's testimony was material to prove that it was in A.L.P.'s best interest to maintain a relationship with him. Casa's counsel objected to the motion on the grounds that it was not verified and that Anna had received notice of the trial setting and all other hearings but had chosen not to participate. The court-appointed amicus attorney objected to the motion on the grounds of lack of notice and that McGuire had had adequate time to subpoena witnesses. The trial court denied McGuire's motion.

         Mary Scalise, a Casa caseworker supervisor, testified that the Texas Department of Family and Protective Services ("the Department") removed Anna from her mother's care in July 2013 as a result of McGuire's sexual abuse. The Department placed Anna and A.L.P. in a residential program for teenage mothers in San Antonio, Texas, where they remained until Anna reached the age of majority. On August, 26, 2016, Anna placed A.L.P. into foster care with Casa.

         At McGuire's request, Scalise contacted his mother to discuss A.L.P.'s placement. McGuire's mother told Scalise that she represented the family and that she supported A.L.P.'s placement with Casa. No other member of McGuire's family offered to care for A.L.P.

         Scalise testified that Anna was very fearful of McGuire. She testified that Anna was so young when she was sexually assaulted, and that she came to Casa "pretty broken" and had no one in her life to support her. She further stated that Anna wants the very best for A.L.P. and told Scalise that she wanted to protect A.L.P. from McGuire. Scalise stated that, in the event that McGuire's parental rights were not terminated, A.L.P.'s safety would be a major concern for Casa and Anna because if McGuire was capable of sexually abusing Anna he might also be capable of abusing A.L.P.

         Scalise testified that, although McGuire has known that A.L.P. was his child since shortly after her birth in 2013, he did not provide any financial support to Casa for A.L.P.'s care in 2016 or 2017. She stated that he sent three checks totaling $125 to Casa in 2018. Scalise testified that Casa was seeking termination of McGuire's parental rights to A.L.P. based on his convictions for aggravated sexual assault of a child and sexual assault of a child, the endangering environment in which McGuire placed, and will continue to place, A.L.P. if his parental rights are not terminated, and his inability to provide care for A.L.P. due to his incarceration.

         A.L.P. currently lives with foster parents who she calls "mommy" and "daddy" and with whom she has spent the majority of her life. Scalise testified that Casa has a placement team that spends time getting to know the children and the foster families in order to match the child with a family. Prior to placement, A.L.P.'s foster parents underwent extensive training with Casa to become certified, and Casa's social worker and psychologist conducted a lengthy home study. Scalise testified that A.L.P. was matched to her foster parents in part because they do not have any other children and could focus solely on A.L.P.'s needs.

         Scalise testified that A.L.P. and her foster parents are very attached to one another, and that the foster father works at the same school that A.L.P. attends. A.L.P. has her own room as well as toys and education materials. A.L.P.'s foster parents are prospective adoptive parents, are "one thousand percent" committed to A.L.P., and have the skills and resources needed to care for her. Scalise also stated that the foster parents understand A.L.P.'s "baggage," some of which A.L.P. has already displayed, and they are committed to giving A.L.P. whatever she needs. It was Scalise's opinion that removing A.L.P. from her current foster family would be extremely detrimental to A.L.P.'s well-being.

         Scalise testified that McGuire's convictions require him to register as a sex offender upon completion of his incarceration. Scalise believed that it would be difficult on A.L.P. if McGuire continued being a part of her life because his status as a sex offender might affect her ability to have friends around him as well as require her to explain that he should be her grandfather rather than her father.

         Scalise testified that Casa received the Department's records, which include the Amarillo Police Department investigation report of the incident leading to McGuire's arrest. The report stated that Anna's mother possibly knew about McGuire's sexual abuse of Anna but that McGuire threatened to kill her if she told anyone. Scalise stated that these allegations confirmed the story that Anna told her when they first met. The report also included statements from the sexual assault nurse examiner who examined Anna that "[Anna] was very frightened by Curtis McGuire and asked questions consistent with that of a victim of domestic violence and of a child in an abusive household. [Anna] was concerned that if Curtis McGuire went to jail, he would lose his job and would not be able to provide for the family." When Scalise contacted the Department investigator in charge of Anna's case, he told her that he continued to receive threatening letters from McGuire. Scalise testified that these were additional reasons that Casa believed it was important to terminate McGuire's parental rights.

         McGuire testified that he was married to Anna's mother from 2010 to 2014. He admitted that he began sexually assaulting Anna in 2010 when she was twelve years old, and that he was charged with aggravated sexual assault of a child and sexual assault of a child. McGuire was released on bond and, as a condition of his bond, he was instructed not to have any contact with Anna. He admitted that, despite this condition, he continued to sexually assault Anna. On May 7, 2015, McGuire pleaded guilty to, and was convicted of, the two charged offenses.

         McGuire acknowledged that his sexual assault of Anna caused her to be left without a father due to his incarceration and to be removed from her mother's care. McGuire admitted that his conduct, which forced Anna to live on her own with a child, created an endangering situation for Anna and A.L.P. McGuire testified that Anna's mother was a lot older than him and that he "wasn't getting whatever [he] needed with [her]." He testified that he allowed his relationship with Anna to become inappropriate and that it was a "mistake on my part, big time," but he believes that he "has grown a lot" and has "a lot more self-control now." He admitted that he told Anna that if she told anyone about his sexual abuse he would go to jail. McGuire testified that he has sent several support payments for A.L.P. totaling $125.

         McGuire testified that he was aware that A.L.P. would have to live with the stigma of being born as a result of his raping her mother. When he was asked whether he had any empathy for the psychological embarrassment the stigma would cause A.L.P., he stated, "I do have some empathy to that effect. I mean, I've been listening. And based on the testimony of Mary Scalise, I think I would be willing to go ahead and just terminate my rights." The trial recessed, and McGuire executed an irrevocable father's affidavit of relinquishment of parental rights. Following the recess, McGuire testified that no one had approached him prior to his decision to relinquish his parental rights to A.L.P., he executed the affidavit of his own volition and signed a proposed decree of termination, and that doing so was in A.L.P.'s best interest.

         At the conclusion of trial, the trial court found clear and convincing evidence supporting termination of McGuire's parental rights to A.L.P. under subsections (A), (C), (D), (E), (K), (Q), and (T) of Family Code section 161.001(b)(1) and section 161.007(a), and that termination of McGuire's parental rights was in the best interest of the child.[4] The court named Casa as ...


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