In re I.V., 13-00-026-CV

• Decision Date: 29 November 2001
• Docket Number: No. 13-00-026-CV,13-00-026-CV
• Citation: 61 S.W.3d 789
• Parties: (Tex.App.-Corpus Chriti 2001) IN RE I.V., A MINOR CHILD
• Court: Texas Court of Appeals

Page 789

61 S.W.3d 789 (Tex.App.-Corpus Chriti 2001)

IN RE I.V., A MINOR CHILD.

No. 13-00-026-CV

Court of Appeals of Texas, Corpus Christi

November 29, 2001

On appeal from the 275th District Court of Hidalgo County, Texas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice Valdez and Justices Hinojosa and Castillo

OPINION

Opinion by Justice Hinojosa

This is an appeal from the trial court's order terminating the parental rights of appellant, Reynaldo Villarreal, and allowing the adoption of I.V., a minor child, by appellee, Maria del Socorro Wilson. In fifteen issues, appellant contends: (1) the evidence is legally and factually insufficient to support the trial court's judgment; (2) the trial court erred by (a) admitting a social study into evidence, (b) taking judicial notice of the court's file, (c) denying his request to attend the hearing, and (d) failing to set aside a prior termination and adoption order; (3) he received ineffective assistance of counsel; and (4) section 161.001(1)(Q) of the family code is unconstitutional. We affirm.

A. Background

Appellant is the biological father of I.V., a female child born on August 25, 1990. Appellee is I.V.'s maternal grandmother. Appellee has cared for I.V. since birth. On September 26, 1991, a federal court sentenced appellant to forty years imprisonment for the capital murder of a law enforcement officer during the commission of a drug-related crime. In April 1992, appellee and her husband petitioned the trial court to terminate appellant's parental rights and to allow appellee to adopt I.V. Appellee asserted, inter alia, that appellant had executed an irrevocable affidavit of relinquishment of his parental rights. On August 3, 1992, the trial court terminated appellant's parental rights and granted the adoption.¹

On November 3, 1997, appellant petitioned the trial court to re-establish his parental relationship with I.V., claiming that (1) he had never executed an irrevocable affidavit of relinquishment of his parental rights, and (2) he had never received notice of the outcome of the termination and adoption suit. Appellant also filed a motion requesting that he be transported from the federal penitentiary to Hidalgo County so that he could be present for any hearings regarding the custody of I.V., but the trial court denied the motion. The trial court subsequently appointed attorneys ad litem to represent appellant and I.V.

On November 16, 1998, appellant filed a petition for a bill of review, alleging he had never received notice of the 1992 termination proceedings. The trial court granted the bill of review. Appellee answered with a general denial and special exceptions, and on April 21, 1999, she filed a counterclaim for termination and adoption of I.V., alleging, inter alia, that appellant had knowingly engaged in criminal conduct that resulted in his imprisonment and inability to care for the child for not less than two years from the date of filing the termination petition. See Tex. Fam. Code Ann. § 161.001(1)(Q) (Vernon Supp. 2001). On September 30, 1999, a hearing on the suit for termination of parental rights and adoption was held. The trial court took judicial notice of all the documents in the court's file, terminated appellant's parental rights, and granted appellee's request to adopt I.V.² This appeal ensued.

B. Termination of Parental Rights

In proceedings to terminate the parent-child relationship, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of chapter 161.001 of the family code and must also prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2000); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). A non-exclusive list of factors that may be considered by the court in determining whether the termination is in the best interest of the child includes: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individual seeking custody, (5) the stability of the home or proposed placement, (6) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one, and (7) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

The parent-child relationship is recognized and protected by law to such a degree that it is of federal constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (holding that the parent-child relationship is "far more precious than any property right."). The termination of parental rights is final and ends all legal ties between the parent and child, except the child's right of inheritance. Tex. Fam. Code Ann. § 161.206(b) (Vernon 1996); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Because termination of parental rights is such a drastic remedy and is of such weight and gravity, due process requires the petitioner to justify termination by a heightened burden of proof of "clear and convincing evidence." See Tex. Fam. Code Ann. § 161.001 (Vernon 1996); In re A.D.E., 880 S.W.2d 241, 245 (Tex. App.-Corpus Christi 1994, no writ); Ybarra v. Tex. Dept. of Human Serv., 869 S.W.2d 574, 576 (Tex. App.-Corpus Christi 1993, no writ). "Clear and convincing evidence" is an intermediate standard, falling somewhere between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re A.D.E., 880 S.W.2d at 245.

Texas courts of appeals are divided on whether the clear and convincing standard of proof required at trial to terminate parental rights requires a stricter standard of appellate review. Compare In re B.R., 950 S.W.2d 113, 117 (Tex. App.-El Paso 1997, no pet.), withIn re J.J., 911 S.W.2d 437, 439-40 (Tex. App.-Texarkana 1995, writ denied). This Court, however, has not applied an elevated standard of review when examining the sufficiency of the evidence in parental termination cases. In re A.D.E., 880 S.W.2d at 254; Doria v. Tex. Dep't of Human Res., 747 S.W.2d 953, 959 (Tex. App.-Corpus Christi 1988, no writ).

C. Sufficiency Issues

In his first, second, third, fourth, fifth, sixth, eighth, ninth, and eleventh issues, appellant contends the evidence is legally and factually insufficient to support the trial court's judgment.

Generally, there are four ways to preserve a challenge to the legal sufficiency of evidence: (1) a motion for instructed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; or (4) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.-Houston [1st Dist.] 2001, no pet. h.); In the Interest of A.P., 42 S.W.3d 248, 254 n. 1 (Tex. App.-Waco 2001, no pet. h.). In order to present a challenge to the factual sufficiency of the evidence on appeal, it must be preserved in the trial court by pursuing a motion for new trial. Tex. R. Civ. P. 324(b)(2), (3); Cecil, 804 S.W.2d at 510; J.M.S., 43 S.W.3d at 62; A.P., 42 S.W.3d at 254 n. 1. It is apparent from the record that appellant took none of these actions to preserve his factual and legal sufficiency issues for appeal. Accordingly, we hold that appellant has waived those issues.³ See J.M.S., 43 S.W.2d at 62 (sufficiency issues must be properly preserved in a termination of parental rights case just as in any other civil case). Appellant's first, second, third, fourth, fifth, sixth, eighth, ninth, and eleventh issues are overruled.

D. Admission of Social Study

In his seventh issue, appellant contends the trial court erred by admitting into evidence a social study that was used in the 1992 termination proceeding.

Appellant objected to the social study, asserting it was more than seven years old and the child's circumstances had changed. However, the attorney ad litem for I.V. had no objection to the study and told the court that she had interviewed the child and concluded the termination of appellant's parental rights and the adoption of I.V. by appellee was in the best interest of the child. Appellee and her son testified later that, while appellee now suffers from some medical problems, she is capable of caring for I.V. with assistance from the son and his wife.

The decision whether to admit evidence rests within the discretion of the trial court. E.I. du Pont Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Ginsburg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A reviewing court cannot conclude that a trial court abused its discretion simply because, in the same circumstances, it would have ruled differently, or if the trial court committed a mere error in judgment. Robinson, 923 S.W.2d at 558; Loftin v. Martin, 776 S.W.2d 145, 146 (Tex. 1989). A civil judgment may not be reversed on appeal on the ground that the trial court erred in admitting evidence unless the court of appeals concludes the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1.

Here, we cannot say the trial court abused its discretion by admitting a social study that was prepared for the first termination and adoption proceeding. Appellee and her son both testified, giving the court an update of the circumstances that had changed.⁴ Most importantly, the court heard evidence that appellant's circumstances had not changed. At the time of the study and at the time of the final hearing, appellant was incarcerated in a federal penitentiary on a forty-year sentence. We overrule appellant's seventh issue.

E. Judicial Notice of Court's File

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