A. C. v. Tex. Dep't of Family & Protective Servs., NO. 03-18-00818-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Gisela D. Triana, Justice
• Citation: 577 S.W.3d 689
• Parties: A. C., Appellant v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
• Decision Date: 06 June 2019
• Docket Number: NO. 03-18-00818-CV

577 S.W.3d 689

A. C., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

NO. 03-18-00818-CV

Court of Appeals of Texas, Austin.

Filed: June 6, 2019

Ms. Amy Luhrs, Mr. Mark T. Zuniga, for Appellee.

Ms. Patricia Ann Stone, for Appellant.

Mr. Tom Davidson, for Respondent mother.

Before Justices Goodwin, Baker, and Triana

OPINION

Gisela D. Triana, Justice

577 S.W.3d 694

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,

577 S.W.3d 695

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

577 S.W.3d 696

"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...