In re Interest of N.L.W.

• Citation: 534 S.W.3d 102
• Decision Date: 06 October 2017
• Docket Number: No. 06-17-00050-CV,06-17-00050-CV
• Parties: IN the INTEREST OF N.L.W., a Child
• Court: Court of Appeals of Texas

534 S.W.3d 102

IN the INTEREST OF N.L.W., a Child

No. 06-17-00050-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: July 31, 2017

Date Decided: October 6, 2017

Alex Tyra, Law Office of Alex Tyra, PC, Longview, TX, Attorney for Appellant.

Joe W. Newsom, Jr., Newsom Law Firm, Gilmer, TX, Attorney for Appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Burgess

Based on nine deemed requests for admissions, the trial court granted summary judgment terminating J.W.'s parental rights to his daughter, N.L.W.¹ In his sole issue, J.W. challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of J.W.'s parental rights was in N.L.W.'s best interest. Because we find that J.W. judicially admitted that it was in N.L.W.'s best interest to terminate J.W.'s parental rights, we affirm the trial court's judgment.

I. Background

K.A. gave birth to N.L.W. in January 2010. On November 16, 2011, the trial court appointed both J.W. and K.A. as joint managing conservators of N.W.L, and also ordered J.W. to make child support payments to K.A. A succession of disputes followed, including issues involving visitation, failure to pay child support, and allegations of family violence. K.A. eventually filed a first amended counter-petition to modify the parent-child relationship and, alternatively, a petition to terminate the parent-child relationship. As grounds for termination, K.A. maintained that J.W.

a. voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;

b. failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of [the] petition; and

c. knowingly engaged in criminal conduct that has resulted in his 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.

On December 7, 2016, K.A. served discovery requests on J.W. through his attorney, which included nine requests for admissions.² J.W. failed to respond to K.A.'s discovery requests. J.W. never attempted to file late responses, never moved to amend the deemed admissions, and never moved to withdraw the deemed admissions. On February 8, 2017, K.A. filed a traditional motion for summary judgment on her petition to terminate J.W.'s parental rights and a no-evidence motion for summary judgment on J.W.'s claims and defenses, which were raised in his petition against K.A. and answer to K.A.'s counter-petition. In support of her summary judgment motions, K.A. attached her requests for admissions. Pointing out that J.W. failed to answer her requests for admissions, K.A. contends that the deemed admissions warranted summary judgment in her favor. J.W. failed to respond to K.A.'s motion for summary judgment.

The trial court set a hearing on K.A.'s motion for summary judgment on March 28, 2017. On that day, J.W. appeared with counsel and asked the trial court for a continuance. Prior to making a ruling on either K.A.'s motion for summary judgment or J.W.'s motion for continuance, the trial court allowed J.W. to testify "in regard to [his] Motion for Continuance."

J.W. testified that he had been incarcerated during 2016 and that, during his incarceration, K.A. filed her motion to terminate his parental rights. J.W. explained that his mother hired counsel to represent him during his confinement in prison. After his release, J.W. was served with K.A.'s discovery requests. J.W. informed his counsel that he refused to respond to K.A.'s requests because "every question on there was a question that they already knew the answer to and I felt like me not being able to elaborate is just—it's kind of like admitting guilt just—I wanted to be able to explain myself." J.W. continued, "Because the way it was all worded just made me sound horrible. And I didn't want to admit to questions like that." J.W. explained that he was asking the trial court for a continuance in order to prevent the termination of his parental rights to N.L.W. so he would have an opportunity to be a part of her life.

On cross-examination, J.W. stated that he was uncertain as to when his trial counsel received K.A.'s discovery requests, but that he recalled her requests for admissions because "they [stuck] out in [his] mind." Although he could not recall the exact date, J.W. explained that, sometime during the year, he and his counsel had contacted N.L.W.'s attorney ad litem to inform her that he was in child support arrears and that he was going "to get up there and pay her. And [they] were going to go from there, just try to sit down with N.L.W." J.W. conceded that he had not seen N.L.W. for a period of three years.

When asked if J.W. was in arrears on his child support payments, the trial court intervened, stating, "You know, we're getting into merits and merits aren't before me. What's before me is, right now, is a Motion for Continuance and also a Motion for Summary Judgment. And I don't take testimony from either party on Motion for Summary Judgment." Thereafter, the trial court denied J.W.'s motion for continuance, granted K.A.'s motion for summary judgment, and then terminated J.W.'s parental rights to N.L.W.³ On that same day, the trial court entered its final judgment and order granting termination of the parent-child relationship.⁴ This appeal followed.

In his appeal, J.W. maintains there was legally and factually insufficient evidence to support the trial court's finding that termination of his parental rights was in N.L.W.'s best interest. In her response, K.A. contends that she proved by clear and convincing evidence that termination of J.W.'s parental rights was in N.L.W.'s best interest. According to K.A., the deemed admissions regarding the very matters at issue were competent evidence to support summary judgment in her favor and, thus, the trial court did not err when it terminated J.W.'s parental rights to N.L.W.

II. Standards of Review

A. Standard of Review Applicable to Summary Judgments

The grant of a trial court's summary judgment is subject to a de novo review. Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). In making the required review, we deem as true all evidence that is favorable to the nonmovant, we indulge every reasonable inference to be drawn from the evidence, and we resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). To be entitled to traditional summary judgment, a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). Once the movant produces evidence establishing her entitlement to summary judgment, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact. Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996). Yet, even where the non-movant fails to respond to the summary judgment motion, the movant must still carry her burden of proof. City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979).

B. Statutory Requirements of Section 161.001 of the Texas Family Code

To terminate an individual's parental rights to his child, the trial court must find, by clear and convincing evidence, the existence of the following statutory requirements: (1) that the parent engaged in one of the statutory grounds for termination and (2) that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016). The Texas Legislature has codified the clear-and-convincing standard set out in Section 161.001, subsections (1) and (2) of the Family Code, which states that a "court may order termination of the parent-child relationship if the court finds by clear and convincing evidence" that the parent has engaged in certain conduct and that "termination is in the best interest of the child." Clear and convincing evidence amounts to "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 ANN. § 101.007 (West 2014) ; In re J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002). "There is a strong presumption that keeping a child with a parent is in the child's best interest." In re J.A.S., Jr. , No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)). Accordingly, "[t]ermination 'can never be justified without the most solid and substantial reasons.' " In re N.L.D. , 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet). (quoting Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976) ).

III. Discussion

In this case, J.W. does not contest the trial court's findings under Section 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1)(C), (F), (Q). Rather, he contends only that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in N.L.W.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). K.A. contends that she proved by clear and convincing evidence that termination of J.W.'s parental rights was in N.L.W.'s best interest by virtue of J.W.'s deemed admissions.

A. Is the Sufficiency of the Evidence Standard of Review Applicable to Summary Judgments?

Initially, we note that there is a significant distinction between a legal sufficiency challenge to a verdict reached at trial and a challenge to the sufficiency of the evidence supporting a summary judgment. Where the legal sufficiency of the evidence is challenged after a trial has yielded a finding on the ultimate issue, the appellate court "loo...