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In re J.O.

Court of Appeals of Texas, Fourth District, San Antonio

December 11, 2019

IN THE INTEREST OF J.O., a Child

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-01006 Honorable Richard Garcia, Associate Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice.

          MEMORANDUM OPINION

          Rebeca C. Martinez, Justice.

         REVERSED IN PART AND REMANDED

         The trial court terminated parental rights to J.O and appointed the Texas Department of Family and Protective Services as J.O.'s sole permanent managing conservator.[1] J.O.'s parents do not appeal. In the termination order, the trial court ordered J.O. to remain placed in the home of Elizabeth Escamilla-Rodriguez and Eduardo Rodriguez and ordered the Department "to proceed to adoption in 40-90 days, unless appeal is filed." Appellant Wendy Langford is the adoptive mother of J.O.'s half-brother. She intervened and now appeals the termination order as to J.O.'s placement and adoption. Langford argues in three issues that the relief the associate judge ordered (1) does not comport with the pleadings, (2) improperly limits the Department's managing conservatorship, and (3) conflicts with the district judge's findings.[2] We sustain Langford's first and second issues and reverse the termination order as to adoption and the placement restrictions placed upon the Department as managing conservator. We affirm the termination order in all other respects and remand for further proceedings consistent with this opinion.

         Background

         On May 10, 2018, the Department filed an original petition for protection of a child, for conservatorship, and for termination of the parent-child relationship between J.O. and her parents. At the time, J.O. was three-days old. Prior to filing its petition, the Department had removed J.O. from her mother based upon allegations of the mother's drug use, limited prenatal care, and mental health disorders. J.O.'s father was unknown. The Department requested that it be appointed J.O.'s temporary managing conservator and that the Department be named J.O.'s permanent sole managing conservator if J.O. could not be reunified with either parent or permanently placed with a relative or other suitable person. The trial court ordered the Department to be named temporary sole managing conservator.

         The Department's initial goal following removal was reunification of J.O. with her mother. To facilitate this result, the Department placed J.O., the day she was removed, with the Rodriguezes, who lived within 50-miles of J.O.'s mother in San Antonio. Beginning in May 2018, the Department's caseworker communicated with Langford, the adoptive mother of J.O.'s half-brother. In their conversations, Langford told the caseworker that she was interested in becoming a foster parent to J.O. In September 2018, Langford became licensed to be a foster parent, and, around that time, the Department changed its plan from reunification of J.O. with her mother to termination of the mother's parental rights.

         In October 2018, the Department requested permission to move J.O. from her current placement with the Rodriguezes to placement with Langford. The associate judge denied the Department's request, and the Department requested a de novo hearing before the district court. On November 29, 2018, the day before the de novo hearing, the Rodriguezes filed a petition in intervention, in which they sought their appointment as sole managing conservators of J.O. or alternatively to adopt the child. The Rodriguezes also requested their appointment as temporary managing conservators of J.O. and that J.O. be placed with them for the duration of the suit.

         Langford, Eduardo Rodriguez, and the Department's caseworker testified at the de novo hearing held on November 30, 2018. Langford testified that she wished to adopt J.O. if parental rights were terminated. She also testified that she was able and willing to foster J.O. for the duration of the suit at her home in Waller, Texas, which is approximately 180 miles from San Antonio. Eduardo Rodriguez testified that the Department told him that he and his wife had a good chance to adopt J.O. when J.O. was placed with them. He further testified that J.O. did not have special needs but was rehabilitating from a recent surgery to her tongue to address a risk of aspiration. The caseworker testified that the Rodriguezes were under the "Foster-to-Adopt Program." According to the caseworker, the Department did not treat foster parents in the program differently than other foster parents but used the program to indicate whether the foster parents were looking to adopt children. The caseworker testified that she advised the Rodriguezes not to become overly attached to J.O. because J.O. might be removed from their home.

         After hearing the evidence, the trial court affirmed the associate judge's order to keep J.O. at her current placement with the Rodriguezes. The trial court also ordered J.O.'s placement into Langford's home for periodic visits. The trial court remarked that policies supported both temporary placements. The Department's policy to keep a child within 50-miles of a parent before termination weighed in favor of placement with the Rodriguezes as too did the public policy to minimize placement changes. Because J.O. would continue therapy related to her surgery while with the Rodriguezes, this fact also weighed in the Rodriguezes' favor. The Department's policy to place siblings together and the respect owed the Department as sole temporary managing conservator weighed in favor of placement with Langford. Nevertheless, the trial court stated in no uncertain terms:

[T]he Department is acting in good faith . . . . [A]t the end of this case, if the parental rights of the parents are terminated, the Department has to give written consent to an adoption. If they don't give you [the Rodriguezes] that written consent, you will never adopt this child.

         The trial court also found that the Rodriguezes did not have standing to intervene.

         On January 3, 2019, the trial court confirmed its oral pronouncements with a written ruling containing its findings. That same day, the trial court ordered that the Rodriguezes' petition in intervention be stricken. On January 28, 2019, Langford filed a petition in intervention.[3]

         On May 1, 2019, the associate judge held a bench trial. The Department's investigator, the Department's caseworker, Langford, and J.O.'s mother testified; the Rodriguezes did not testify. The caseworker testified it was in J.O.'s best interest to be placed with Langford. Langford wished J.O. to be placed in her home and intended to adopt J.O. if parental rights were terminated. J.O.'s mother testified that she wished J.O. to be placed with J.O.'s half-brother if the mother's parental rights were terminated. At closing, J.O.'s attorney and guardian ad litem recommended termination of parental rights and that J.O. be placed with Langford. He stated: "I would like to [ac]knowledge that the Rodriguezes are wonderful foster parents, but it's a policy of the Department to keep kids together, and that this is the only way we can do it." The trial court took the case under advisement.

         On May 16, 2019, the trial court signed an order terminating parental rights to J.O. and appointing the Department as her sole permanent managing conservator. The trial court entered the following findings:

6.1. [The] Court finds the child has been placed in a foster-to-adopt home, [the] Rodriguez[es'], ...

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