In re D.R.L.M.

• Decision Date: 03 July 2002
• Docket Number: No. 2-01-323-CV.,2-01-323-CV.
• Citation: 84 S.W.3d 281
• Parties: In the Interest of D.R.L.M.
• Court: Texas Court of Appeals

84 S.W.3d 281

In the Interest of D.R.L.M.

No. 2-01-323-CV.

Court of Appeals of Texas, Fort Worth.

July 3, 2002.

Rehearing Overruled August 15, 2002.

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Georganna L. Simpson, Dallas, Sondrea J. King, Fort Worth, for Appellants.

Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Division, and Anne E. Swenson, David M. Curl, Clifford Bronson, and James C. Teel, Asst. Crim. D.A.s, Fort Worth, Kelly Swanda, and Dean Swanda, Arlington, for Appellees.

PANEL A: DAUPHINOT, GARDNER, and WALKER, JJ.

OPINION

SUE WALKER, Justice.

I. INTRODUCTION.

In this case, we decide two primary issues. We address the appropriate standard to be applied by the trial court in deciding whether to place half-sisters who have never lived together in the same adoptive home and whether the trial court's refusal to place a child with the persons named in a mother's voluntary affidavit of relinquishment affects the voluntariness of the affidavit. See TEX. FAM. CODE ANN. § 162.302(e) (Vernon Supp. 2002).¹

The trial court terminated the parental rights of D.R.L.M.'s biological parents. Two families², the Smiths, who had previously adopted D.R.L.M.'s half-sister, and the Martins, who served as D.R.L.M.'s foster family, both intervened in the termination suit, seeking to adopt D.R.L.M. Both D.R.L.M.'s biological parents signed affidavits of voluntary relinquishment relinquishing her to the Smiths. Ultimately, however, the trial court ordered the Martins appointed managing conservators and adoptive parents of D.R.L.M.

We hold that under 162.302(e), placement of a child in the same adoptive home with her half-sister is one factor in an adoption proceeding supporting the child's adoption by the same persons who adopted the child's sibling.³ We decline to hold, however, that section 162.302(e) requires the trial court to apply any heightened standard of proof. Instead, the positive opportunity to place a child in the same adoptive home with a half-sibling is simply one factor to be considered by the trial court in determining whether adoption is in the child's best interest. We also hold that the trial court's refusal to appoint as a child's managing conservators the persons designated by a parent in their affidavit of voluntary relinquishment does not automatically, or in this case, render the affidavit involuntary. We will modify the trial court's judgment and affirm it as modified.

II. BACKGROUND FACTS.

In March 2000, a babysitter took D.R.L.M. to the hospital because the eight-month old had a very high fever. D.R.L.M. was diagnosed with bacterial spinal meningitis and was transported to Cooks Children's Medical Center for treatment. Hospital personnel contacted Texas Department of Protective and Regulatory Services ("TDPRS") when no one was available to consent to medical treatment on D.R.L.M.'s behalf. D.R.L.M.'s biological mother (hereinafter referred to by the fictitious name "Kristi") was in jail and D.R.L.M.'s biological father was "not around." TDPRS petitioned for emergency removal of D.R.L.M. so it could consent to treatment for the child. When D.R.L.M. was later released from the hospital on April 3, 2000, she was placed in foster care with the Martins.

TDPRS intended to reunify Kristi and D.R.L.M., but Kristi repeatedly failed to comply with the agency's service plan. In the meantime, TDPRS was examining options for D.R.L.M. and was attempting to contact known relatives of D.R.L.M. for her placement in the event Kristi proved unsuitable.

In September 2000, TDPRS discovered that the Smiths, who lived in Michigan, had adopted D.R.L.M.'s half-sister, A.C. D.R.L.M.'s half-sister's father is the Smiths' nephew. The Smiths agreed to consider placement of D.R.L.M. in their home. TDPRS sought and obtained an order for an expedited home study of the Smiths. Approximately one month after being contacted by TDPRS, the Smiths and A.C. traveled to Fort Worth to visit D.R.L.M. In December 2000, the Smiths filed their home study, which recommended a provisional foster home license. TDPRS filed a motion to appoint the Smiths as temporary possessory conservators of D.R.L.M.

Two days after TDPRS filed its motion to appoint the Smiths D.R.L.M.'s temporary possessory conservators, the Martins filed a petition in intervention seeking to be named managing conservators of D.R.L.M. Kristi and D.R.L.M.'s biological father both filed irrevocable affidavits of voluntary relinquishment relinquishing their parental rights to D.R.L.M. and designating the Smiths to serve as D.R.L.M.'s managing conservators.

D.R.L.M. stayed in the Martins' home from April 3, 2000, when she was approximately nine months old, through the time of trial, when she was approximately twenty-five months old. D.R.L.M. went on several extended trips to visit with the Smiths, including one trip for approximately eight weeks.

The issues of termination of the parental rights of Kristi and D.R.L.M.'s biological father and which family should be permitted to adopt D.R.L.M. proceeded to trial before the court. Following a two-day trial, the trial court terminated Kristi's and D.R.L.M.'s father's parental rights, and ordered the Martins appointed managing conservators of D.R.L.M. The trial court later timely made findings of fact and conclusions of law.

Specifically, the trial court found the parental rights of D.R.L.M.'s biological parents should be terminated because both parents had:

a. knowingly engaged in criminal conduct that has resulted in a conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed; and,

b. executed an unrevoked or irrevocable affidavit or relinquishment of parental rights as provided by chapter 161 of the Texas Family Code.

The trial court also found that: D.R.L.M.'s biological parents designated the Smiths as their intended managing conservators for the child; the appointment of the Smiths as the managing conservators of D.R.L.M. was not in D.R.L.M.'s best interest; the appointment of the Martins as the managing conservators of D.R.L.M. was in D.R.L.M.'s best interest; and the adoption of D.R.L.M. by the Martins was in D.R.L.M.'s best interest.

Kristi and the Smiths appeal the trial court's order.⁴ TDPRS asserts that termination of Kristi's rights was proper, but argues that the trial court erred by failing to "apply any kind of heightened standard to separating D.R.L.M. from her half-sister" and urges us to reverse the trial court's judgment awarding managing conservatorship to the Martins and to render judgment awarding the Smiths managing conservatorship of D.R.L.M. The Martins assert that the trial court correctly terminated Kristi's rights, properly appointed them managing conservators of D.R.L.M., and properly ordered their adoption of D.R.L.M.

III. KRISTI'S APPEAL.

The trial court terminated Kristi's parental rights on two grounds. First, the trial court found, pursuant to section 161.001(Q) of the family code, that Kristi knowingly engaged in criminal conduct that resulted in her conviction of an offense and confinement or imprisonment and inability to care for D.R.L.M. for not less than two years from the date the petition for termination was filed. Second, the trial court found Kristi had executed an "unrevoked or irrevocable affidavit of relinquishment of parental rights." Kristi raises six issues on appeal challenging these grounds for terminating her parental rights. TDPRS, however, argues Kristi's failure to timely file a "statement of points" as required by family code section 263.405(b) jurisdictionally bars appellate review of all six of her issues. See TEX. FAM.CODE ANN. § 263.405(b) (Vernon Supp. 2002). We will first address TDPRS's jurisdictional complaint.

A. Is Compliance With Section 263.405(b) Jurisdictional?

Family code section 263.405 was amended by House Bill 2249, effective September 1, 2001, and applies to all appeals filed after September 1, 2001. TEX. FAM.CODE ANN. 263.405(b). Section 263.405(b) now provides:

Not later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for a new trial.

Id.

TDPRS analogizes this section to rule of appellate procedure 34.6(c), requiring a statement of points when the appellant designates a partial record, and urges this court to require strict compliance with section 263.405(b) like we do with rule 34.6(c). See TEX.R.APP. P. 34.6(c); e.g., CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.-Fort Worth 1999, no pet.) (requiring strict compliance with rule 34.6(c)). TDPRS also points out that courts require strict compliance with family code section 263.401(a), the provision generally requiring a trial court to render a final termination order within a year of the filing of a petition by TDPRS seeking termination of the parent-child relationship or seeking to be named conservator of the child. See TEX. FAM.CODE ANN. § 263.401(a) (Vernon Supp.2002).

In involuntary termination cases, however, we are required to strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex.1985); In re D.T., 34 S.W.3d 625, 629 (Tex.App.-Fort Worth 2000, pet. denied). Automatically equating rule 34.6(c) with section 263.401(a) would ignore the constitutional magnitude of the parental rights at stake here; these rights underlie the requirement that we strictly construe the involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20. Likewise, we strictly construe section 263.401(a)'s one-year time period in favor of the parent to require disposition, dismissal or an extension within the one-year...