In re Interest of J.J.R.S.

• Decision Date: 04 June 2021
• Docket Number: No. 20-0175,20-0175
• Citation: 627 S.W.3d 211
• Court: Texas Supreme Court
• Parties: In the INTEREST OF J.J.R.S. and L.J.R.S., Children

627 S.W.3d 211

In the INTEREST OF J.J.R.S. and L.J.R.S., Children

No. 20-0175

Supreme Court of Texas.

Argued October 28, 2020

OPINION DELIVERED: June 4, 2021

Rehearing Denied September 3, 2021

Maureen Llanas, San Antonio, for Other interested party J.J.R.

Robert Michael Gaona, San Antonio, Shawn Darrick Sheffield, for Other interested party S., J.J.R.

Rebecca L. Gorham, Caitlin Irwin, Joe D. Gonzales, for Respondent.

Alana Pearsall, Gurney F. Pearsall III, San Antonio, for Petitioner.

Justice Devine delivered the opinion of the Court.

This parental rights case presents two questions: (1) whether, and under what circumstances, a trial court may order that a parent's access to a child is solely at the discretion of the managing conservator; and (2) whether the trial court's issuance of an ex parte temporary order pursuant to Texas Family Code section 262.201(o) is unconstitutional on its face or as applied to Mother.

The court of appeals determined that the evidence was legally and factually sufficient to support the terms of the visitation order and that the terms of the order were permissible under the Family Code upon a finding that they were in the best interest of the children. 607 S.W.3d 400, 405–08 (Tex. App.—San Antonio 2020). It also denied Mother's constitutional challenge to Texas Family Code section 262.201(o). Id. at 408–10.

We hold that the trial court did not abuse its discretion in imposing a restriction on Mother's right of access because the court could have reasonably concluded that such a severe restriction was in the children's best interest. See TEX. FAM. CODE § 153.193. We decline to address Mother's constitutional challenges to Texas Family Code section 262.201(o) because they were rendered moot by the trial court's issuance of a final order. Accordingly, we affirm the judgment of the court of appeals.

I

In August 2018, law enforcement responded to an aggravated robbery at a San Antonio motel. According to Mother, the incident began when one of her clients asked her to perform certain acts with which she was uncomfortable while prostituting herself. A struggle ensued, and Mother's boyfriend entered the room with a firearm and proceeded to take the client's clothes and money. The client chose not to press charges.

In a nearby motel room, law enforcement found Mother's two children, J.J.R.S. and L.J.R.S. Between both rooms, law enforcement retrieved three bags of methamphetamine less than a gram each, a small amount of marijuana, glass pipes, and small, clear baggies.¹ The boyfriend claimed the drugs were his. Mother stated that the unregistered firearm belonged to her but denied any attempt to rob her client. Mother stated that she and her children were from Florida and had been living in the motel for eight months. Police made no arrests during the incident, but Mother called her sister—the children's maternal aunt—to watch the children that night. The children have been residing with Aunt and Uncle since.

Shortly after the incident, law enforcement referred the case to the Texas Department of Family and Protective Services. The Department investigator first interviewed both children, whom he perceived as wanting to protect Mother because they "[did] not want her to get into trouble." The Department next interviewed Aunt, who described her relationship with Mother as estranged. Six months before the incident, Mother had contacted Aunt for the first time in two years, asking for money to pay for a motel room. According to Aunt, the children lived in Puerto Rico with Mother before moving to Florida and were likely born addicted to drugs. Aunt stated she was willing to take care of the children.

The investigator then separately interviewed both Mother and her boyfriend. During his interview, the boyfriend—who is not the biological father of J.J.R.S. or L.J.R.S.—denied any attempt to rob the client and denied possessing a firearm. He admitted using marijuana but refused to sign an acknowledgment-of-substance-use form. Mother also admitted using marijuana but refused a drug test. She admitted to prostituting herself but denied any attempted robbery, stating that her boyfriend was trying to protect her from an abusive client. Mother stated that she called her sister only because she was not sure if she was going to jail.

To avoid legal action, the Department attempted to place the children with Aunt and Uncle. Mother, however, refused to sign a Parental Child Safety Placement form and refused to comply with services. The Department remained concerned for the children's safety, believing that they would be in immediate danger if returned to Mother because of her illegal activities, including drug use, robbery, and prostitution.

The Department filed its original petition against Mother on August 20, 2018, requesting orders pursuant to Texas Family Code section 262.101 for temporary sole managing conservatorship of the children pending final disposition of the lawsuit. See TEX. FAM. CODE §§ 262.201, 105.001(a)(1), (h). If reunification could not be achieved, the Department sought termination of Mother's parental rights. Id. § 161.001(b).

The day the lawsuit was filed, the trial court issued a temporary emergency order naming the Department temporary sole managing conservator and noticed a full adversary hearing to be held nine days later.² The court appointed an attorney ad litem for Mother and a separate attorney ad litem and guardian ad litem for the children. A full adversary hearing pursuant to chapter 262 was held on September 12. Id. § 262.201. Mother was not served with a citation prior to this hearing and was not present at the hearing, but the court nonetheless entered an order naming the Department temporary managing conservator for the pendency of the lawsuit. See id. § 262.201(o) ("When citation by publication is needed for a parent ... in an action brought under this chapter because the location of the parent ... is unknown, the court may render a temporary order without delay at any time after the filing of the action without regard to whether notice of the citation by publication has been published."). The order restricted Mother's visitation to two visits per month until the final trial. Mother was eventually served by publication on September 18, after the Department stated it could not locate her.

The Department established a family service plan for Mother and the children's biological Father, who lived in Florida when the lawsuit was initiated.³ Mother was uncooperative with the Department and failed to complete any service plan goals, including demonstrating the ability to stay sober, providing basic necessities to the children, completing therapy for her diagnosed mental health conditions, and finding stable housing. Mother did not make contact with the Department to acknowledge her service plan or visit her children until May 1, 2019—eight months after the lawsuit was filed. Mother arranged visitation with her children but regularly missed meetings, attending only four visits with her children over the life of the lawsuit. By contrast, while in the care of Aunt and Uncle, the children began attending school for the first time in two years and regularly attended therapy, showing improvements in their physical and emotional development.

At the final trial, Department supervisor Kimberly Barnhill testified, stating that the children had bonded with Aunt and Uncle, who were meeting their emotional needs. Barnhill further testified that Mother could not meet the physical and emotional needs of the children because she failed to maintain any stability, permanent housing, or contact with the children throughout the case. Even so, Barnhill believed it was in the children's best interest to have limited visitation with Mother because the children missed their mom and were sad about the situation.

On cross-examination, Barnhill testified that she was opposed to once-a-month visits with Mother at a supervised facility, instead preferring supervised visits at Aunt's discretion because of the "emotional and ... drug-influenced state that Mother has been in throughout the case." When pressed if procedures such as clean drug tests could alleviate these concerns, Barnhill stated they would not alleviate the concerns stemming from Mother acting "highly hysterical" on some phone calls and not showing up to visits, which was hard on the children. Making the children wait for Mother in the Department's lobby was "not a very good environment ... especially when they're excited to see their mom," Barnhill believed. The "lack of stability," she testified, is "extremely emotionally traumatizing for them."

Mother offered no evidence at the final trial.

Because of the children's bond with Mother and Father's attempt to maintain a relationship, the Department recommended the trial court not terminate their parental rights. The guardian ad litem recommended termination of Mother's parental rights but stated he would be amenable to possessory conservatorship with visitation "possibly later with a lot of services." The court appointed special advocate (CASA) representative recommended termination of Mother's rights. Based on those recommendations, the court named Aunt and Uncle permanent managing conservators and named Mother and Father possessory conservators. The court orally stated it was deviating from the standard possession order based on the testimony and evidence presented by the Department.

With regard to Mother, the final order stated that she "shall have possession of the children at times mutually agreed to in advance by the parties." In the absence of mutual agreement, Mother could have "supervised visitation with the children, under the terms and conditions agreed to in advance by the managing conservator," with 48 hours' advance notice. Below this, in handwriting, the trial court added, "[o]nly if the managing conservator agreed to visitation. Sole discretion." The court orally stated that its order was in...