in the Interest of J.R.S., J.L.S., and B.L.N.S.

Citation: Not availableDocket: 02-08-00034-CV

Court: Court of Appeals of Texas; February 4, 2009; Texas; State Appellate Court

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Melissa S. appeals the termination of her parental rights to her three children—Julia, James, and Bethany—arguing that the trial court erred in denying her motion for continuance and that the evidence supporting the termination grounds and the best interest of the children is insufficient. Julia, diagnosed with epilepsy, was born when Melissa was fifteen, and Melissa subsequently had James and Bethany in Louisiana. Throughout their lives, the children primarily lived with Melissa's mother due to Melissa's inability to care for them, stemming from her lack of education and financial stability. After several moves between states and relationships, Melissa returned to Louisiana to assist her ailing mother but did not regain custody of her children, who later moved to Texas. Despite her frustrations regarding her mother's decisions, Melissa accepted that her children were well cared for. The court found sufficient grounds for termination under Texas Family Code section 161.001(1) and ruled that termination was in the best interest of the children, leading to the affirmation of the trial court’s judgment.

Melissa relocated to Dallas two weeks after moving away from her children. She visited them in December 2002 but faced personal challenges, including her mother's death in March 2003. Subsequently, Vickie and Lester M. filed a lawsuit, resulting in a September 2003 court order that appointed them and Melissa as joint managing conservators. Vickie and Lester M. were given exclusive rights to determine the children's primary residence in Young County, and they had custody, while Melissa was ordered to pay $100 monthly in child support and was granted visitation rights.

Melissa failed to make the required child support payments and had limited transportation, which hindered her ability to visit the children. Vickie M. restricted Melissa's access, and Melissa lacked the financial means to secure legal representation. Despite this, she chose not to relocate closer to her children, expressing a desire to live elsewhere.

On August 3, 2006, the Texas Department of Family and Protective Services (TDFPS) removed the children from Vickie and Lester M.'s care after concerns of physical abuse and neglect. Melissa admitted she did not have the means to care for the children at that time. She engaged with TDFPS to create a service plan but did not complete it until late 2007, despite moving several times within Texas and Oklahoma.

Melissa's visitation with the children was infrequent, with her missing scheduled visits and claiming restrictions from the court. In January 2008, during a bench trial, she testified about her living situation and employment but acknowledged her inability to provide a stable home for the children. Ultimately, the trial court terminated Melissa's parental rights, finding clear evidence that her actions endangered the children's well-being, constituted constructive abandonment, and demonstrated noncompliance with court orders. TDFPS was appointed as the children’s permanent managing conservator. An appeal followed the ruling.

Melissa contends the trial court erred by denying her motion for continuance, arguing improper notice of the final trial setting under Texas Rule of Civil Procedure 245. She claims neither she nor her attorney was present at the October 5, 2007, permanency hearing when the first notice was issued, and her attorney, appointed on December 11, 2007, allegedly received notice later in December. The rule mandates a minimum of forty-five days' notice for the first trial setting, but it applies only to initial settings, not subsequent resets.

The trial court set the final trial date for January 14, 2008, in an order dated June 22, 2007, which met the notice requirement. Although the court reset the final trial date on October 5, 2007, without indicating Melissa's presence, she received reasonable notice of the reset date given the timeline. Thus, the court did not abuse its discretion in denying her motion for continuance.

Additionally, Melissa challenges the evidentiary sufficiency regarding the termination grounds and the best interest finding under family code section 161.001. The legal standard emphasizes that parental rights are constitutionally protected but not absolute, reflecting their significant value compared to property rights.

Courts must prioritize the constitutional significance of the parent-child relationship while ensuring that the child's emotional and physical interests are not compromised. In termination cases, the State aims to permanently sever parental rights, removing all legal connections between parent and child except for inheritance rights. The legal framework mandates that a petitioner must establish at least one ground for termination as outlined in Texas Family Code §161.001 and prove that termination is in the child's best interest, with both elements needing to be satisfied. Termination must be supported by clear and convincing evidence, defined as evidence that instills a firm belief in the truth of the allegations. Due process necessitates this standard due to the irreversible nature of termination.

When evaluating evidence, the inquiry focuses on whether a reasonable factfinder could form a firm belief that grounds for termination exist and that it serves the child's best interest. All evidence must be considered favorably towards the finding, while evidence that could be disbelieved is disregarded. Appellate review respects the factfinder’s credibility determinations unless deemed unreasonable. For factual sufficiency, the entire record is assessed to determine if a reasonable factfinder could firmly believe in the violation of conduct provisions and the child’s best interest. If significant contrary evidence exists that a reasonable factfinder could not ignore, then the evidence may be considered factually insufficient.

Constructive abandonment of a child occurs when a parent meets four criteria: (1) the child has been in the conservatorship of TDFPS or an authorized agency for at least six months, (2) TDFPS or the agency has made reasonable efforts to return the child, (3) the parent has not maintained regular contact with the child, and (4) the parent has shown an inability to provide a safe environment. Melissa challenges the requirement of reasonable efforts by TDFPS, arguing that they did not assist her with transportation for visitation. However, evidence indicates that TDFPS prepared a service plan to help Melissa create a safe environment for her children, which she signed on October 25, 2006. This plan outlined goals including completing parenting classes and undergoing a psychological evaluation. A trial court order confirmed the plan's reasonableness and compliance with prior orders. Caseworker April Mancilla testified that Melissa never requested transportation assistance and failed to inform TDFPS about her frequent relocations, complicating communication and compliance with the service plan. Although TDFPS offered services early on, Melissa did not begin fulfilling her obligations until late 2007. Throughout the case, Melissa expressed a desire to place her children with her sister in Louisiana, but only decided to engage with the services provided by TDFPS much later. Melissa managed to visit her children through various means, including help from friends and public transportation, despite not consistently maintaining contact.

Melissa confirmed that she had transportation when needed and chose not to live closer to her children, expressing a preference to reside elsewhere. The court concluded that a reasonable factfinder could believe TDFPS made sufficient efforts to reunite Melissa with her children, leading to a legal finding of constructive abandonment under Tex. Fam. Code Ann. § 161.001(1)(N). Consequently, the court overruled Melissa’s fourth issue and did not address her second, third, and fifth issues regarding other findings, citing that only one predicate finding is necessary for termination if it serves the child's best interest.

The court emphasized a strong presumption that keeping a child with a parent is in the child's best interest, alongside the prompt placement of the child in a safe environment. Various nonexclusive factors may guide the determination of a child’s best interest, such as the child’s desires, emotional and physical needs, potential danger, parental abilities, available support programs, plans for the child, home stability, and the parent's behavior. Evidence of just one favorable factor can suffice to support a best interest finding, whereas limited evidence across all factors cannot.

In this case, the children expressed a desire to live with Melissa, highlighting their emotional connection and hope for reunification. Melissa submitted notes from the children expressing love and longing to return home. Additionally, she testified about her efforts to become a responsible parent, including securing employment, seeking housing, and working on transportation arrangements. Melissa asserted her capability to care for her children and noted the support of her godmother in her parenting journey.

Mancilla concluded that terminating Melissa's parental rights is in the best interest of the children, emphasizing their need for stability, a permanent home, and consistent care. She pointed out Melissa's inadequate parenting skills, lack of a clean and safe living environment, and inability to meet the children's emotional and physical needs. Melissa admitted to having no transportation or housing for the children and frequently made excuses for her circumstances, including her troubled upbringing. Mancilla noted that the children are thriving in their current placements, which provide them with the most consistent care they have experienced. Frank Gellner, the children's guardian ad litem, supported the termination, indicating that the eldest sibling, Julia, had taken on a motherly role. Gellner and Mancilla both agreed that returning the children to Melissa would not be advisable. The trial court’s findings were supported by various factors, including the children's needs and Melissa's parenting abilities, leading to the conclusion that terminating her rights is warranted. The evidence presented was deemed sufficient to uphold the trial court's decision. Melissa's sixth issue was overruled.

Parental rights of Melissa to her children, Julia, James, and Bethany, have been affirmed as terminated by the court after overruling her first, fourth, and sixth issues, which were deemed dispositive. The ruling was delivered by Justice Bob McCoy and the panel included Justices Gardner and Walker on February 5, 2009. The document notes that aliases are used for the children's names per Texas Rule of Appellate Procedure 9.8(b)(2). Key details include James's premature birth at two pounds, thirteen ounces, and Julia's history of seizures. Melissa's testimony indicated that incidents of family violence involving the children occurred at the residence of family members, Vickie and Lester M. Notably, Melissa did not visit her children from July 2005 to October 2006. Additionally, the trial court terminated the parental rights of all three alleged fathers. It is also highlighted that the trial court had previously consolidated the termination case with a child support arrearage action against Melissa, with her attorney representing her in that matter two months prior to the final trial.