In re G.S.
| Decision Date | 23 September 2014 |
| Docket Number | NO. 14-14-00477-CV,14-14-00477-CV |
| Court | Texas Court of Appeals |
| Parties | IN THE INTEREST OF G.S., A CHILD |
On Appeal from the 309th District Court Harris County, Texas
Appellant G.B.C. (the Father) appeals from the decree terminating his parental rights to a daughter, G.S. (the Child). The Father brings four issues arguing that (1) the trial court erred in denying his motion for new trial; (2) the evidence is insufficient to support termination; (3) the Texas Department of Family and Protective Services (the Department) failed to make reasonable efforts to reunite him with the Child; and (4) the trial court erred in ordering reimbursement for his court-appointed counsel's fees. We affirm.
On December 17, 2012, the Department received a referral alleging physicalabuse of the Child shortly after her birth. The referral alleged that at the time of the Child's birth, M.C.S. (the Mother) tested positive for amphetamines and methamphetamines and the Child tested positive for amphetamines and methadone. On December 19, 2012, the Department filed suit for protection of the Child, naming the Father as the Child's alleged father. The following day, the trial court issued emergency temporary orders granting the Department temporary managing conservatorship, and the Child was placed in foster care.
The record reflects that the Father was a party in a previous suit for termination of the Mother's child, A.D.S. (the Brother), who was born in 2008. The Father was alleged to be the Brother's biological father. The Brother was placed in the Department's custody after it was learned that the Mother drank while pregnant and the Brother suffered from Fetal Alcohol Syndrome. In 2009, both the Mother's rights and any rights the Father had to the Brother were terminated. The decree, which was admitted in evidence at trial in this proceeding, recited that the Father was duly cited, but failed to appear or answer and his rights were terminated pursuant to Family Code Section 161.002. See Tex. Fam. Code § 161.002.1 The Brother was placed in the care of his maternal grandmother (the Grandmother), who later formally adopted him.
The trial court conducted an adversary hearing in the underlying proceeding on January 3, 2013. The record reflects the Father was present at the hearing andwas personally served with process. The court signed an order finding, among other matters, that the Father was not indigent. The court ordered the Father to comply with each requirement set out in the Department's service plan, which was filed with the court February 4, 2013. The plan required the Father to submit to DNA testing to confirm his parentage and to random drug testing. In addition, the Father was ordered to pay child support, complete domestic violence, anger management, and parenting classes, among other tasks.
On February 14, 2014, a status hearing was held. At that time, the Father signed an affidavit of indigence, claiming he was paid $998 in his last paycheck, he paid $700 per month in rent, he had $500 in his bank account, and he paid $2,600 per month to an attorney. The parties agree that Susan Solis was appointed as attorney ad litem to represent the Father at the conclusion of the hearing, but our record does not contain a written order appointing her. On June 13, 2013, Solis filed an answer on behalf of the Father denying the allegations in the Department's petition. The record reflects Solis appeared on behalf of the Father at the permanency hearings held June 27, 2013 and October 3, 2013.
At the hearing held October 3, 2013, the Father acknowledged that he had completed DNA testing that confirmed he is the Child's biological father. The Father also testified about completion of some of his required services and testified he had been employed for three years. On cross-examination, the Father admitted that he had been working as an engineer for the past three years, he made $70,000 per year, he had been living with his sister since January, he did not pay anything for rent, and he had not paid any child support. At the conclusion of the hearing, the court removed the Father's appointed counsel and urged the Father to retain counsel before the trial setting in December. There is no written order discharging Solis.
At the same hearing, the trial court signed an order permitting the Child'smaternal grandparents (the Grandparents) to have unsupervised visits with the Child. The Grandparents later filed a petition in intervention seeking conservatorship of the Child.2
The court conducted a permanency hearing on December 12, 2013, when the case was originally set for trial. The record reflects the Father appeared with retained counsel, David Rushing. At the request of the Attorney Ad Litem for the Child, the court granted an extension of the statutory dismissal date and reset trial to January 23, 2014.
New counsel for the Father, Jerry Acosta, was granted leave to substitute for Rushing on January 23, 2014, the first day of trial. Acosta then made an oral request for a continuance, which was denied. Trial to the court briefly commenced. Acosta was assisted during the trial by co-counsel, James Pons. Trial resumed February 27 and 28, 2014, and concluded on March 6, 2014. The trial court signed a final judgment on March 27, 2014, adjudicating the Father's parentage, terminating his parental rights to the Child, and appointing the Grandparents as the Child's sole managing conservators. The judgment recited the trial court's findings that parental termination is in the Child's best interest and that the Father committed acts establishing the predicate termination grounds set out in subsections E, N, and O of Texas Family Code Section 161.001(1). Tex. Fam. Code §§ 161.001(1)(E), (N) & (O); 161.001(2).3 The decree also recited that appointment of a parent as conservator would not be in the Child's best interest because the appointment would significantly impair the Child's physical health or emotional development. See Tex. Fam. Code § 153.131. The trial court's judgmentalso recited that the Father is not indigent and ordered the Father to reimburse Harris County for the appointed ad litem attorney's fees in the amount of $2,750 and to pay $4,500 in attorney's fees to the Grandparents' attorney. The Father filed a timely motion for new trial, which was denied after a hearing on May 6, 2014. The Father also filed a timely notice of appeal.
In his first issue, the Father claims the trial court should have granted him a new trial because his appointed counsel was wrongfully released close to trial and the court erred in denying his subsequent continuance requests. In his motion for new trial, he alleged he was entitled to appointed counsel, his appointed counsel was improperly released, and his appointed counsel provided ineffective assistance of counsel, depriving him of a fair trial. In his second issue, the Father generally challenges the legal and factual sufficiency of the evidence to support parental termination. He specifically challenges both the predicate finding under Family Code section 161.001(1)(N) and the trial court's best interest finding. In the Father's third issue, he alleges that the Department failed to make reasonable efforts to return the Child to him. In his fourth issue, the Father claims the trial court erred in ordering him to reimburse the county for the fees owed to his court-appointed attorney because he was entitled to appointed counsel.
If disposition of an issue would result in a rendition of judgment, an appellate court should consider that issue before addressing any issues that would only result in a remand for a new trial. See Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 201 (Tex. 2003); see also In re K.W., 138 S.W.3d 420, 428 (Tex. App.—Fort Worth 2004, pet. denied) (). Accordingly, we will first consider the Father's challenges to the legal sufficiency of the evidence, followed by a review for factual sufficiency.
Due to the severity and permanency of the termination of parental rights, the burden of proof at trial is heightened to the clear and convincing standard. See Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "Clear and convincing evidence" means "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code § 101.007; accord In re J.F.C., 96 S.W.3d at 264. While proof by clear and convincing evidence must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. See R.H. v. Tex. Dep't of Family & Protective Servs., ___ S.W.3d ___, 2013 WL 1281775, at *5 (Tex. App.—El Paso 2013, no pet.). This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. We assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at 244; In re J.F.C., 96 S.W.3d at 266.
In our review of termination findings for factual sufficiency of the evidence, we consider and weigh all of the evidence including disputed or conflicting evidence. In re...
To continue reading
Request your trial