In re J. G. S.

• Decision Date: 14 March 2019
• Docket Number: NO. 01-18-00844-CV,01-18-00844-CV
• Citation: 574 S.W.3d 101
• Parties: In the INTEREST OF J. G. S., a Child
• Court: Texas Court of Appeals

574 S.W.3d 101

In the INTEREST OF J. G. S., a Child

NO. 01-18-00844-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 14, 2019

Sarah Beth Landau, Justice

Paul Edward Cooper, Jr. appeals a judgment terminating his parental rights to his daughter, J.G.S. (pseudonymously referred to as Joanne). The termination proceeding was initiated by Cooper’s mother, Rita Ann Sims, who has been Joanne’s sole managing conservator for the past four years.

Sims filed her petition in 2016, seeking to terminate the parental rights of both of Joanne’s parents—Cooper and Alicia M. Strong—and to adopt Joanne. The trial court terminated the parental rights of both parents and granted the adoption, which took place the day after the termination proceeding.

Cooper appeals the trial court’s orders, arguing that there is insufficient evidence to support each predicate finding and the best-interest finding.¹ He further argues that the trial court erred in granting a trial amendment to add grounds for termination after the evidence closed, granting the adoption, and ordering him to pay attorney’s fees for Sims and the amicus attorney.

Because there is factually insufficient evidence that termination of Cooper’s parental rights was in Joanne’s best interest, we reverse and remand.

Background

Paul Edward Cooper, Jr. is the biological father of Joanne, who was born in 2008. Joanne’s biological mother is Alicia M. Strong.

There is little information in the record about the first few years of Joanne’s life. She lived with her mother in Virginia for some period of time. In 2011, Strong called Joanne’s paternal grandmother, Rita Ann Sims, and asked Sims to come to Virginia to retrieve Joanne because she could no longer take care of the young girl. After that, Joanne lived at times with Sims and at other times with her father. The dates are unclear from the record.

In November 2012 Sims was named Joanne’s sole managing conservator. The conservatorship order states that neither Cooper nor Strong appeared or participated in the hearing to determine conservatorship. Cooper and Strong were named possessory conservators and granted supervised visitation. They were ordered to pay child support and medical-reimbursement support. There are no fact findings or other materials in the record indicating the basis for these rulings.

Cooper is a Navy Reservist. The month after Sims was named Joanne’s sole managing conservator, Cooper was "predeployed" by the Navy for six months, and then, in August 2013, was deployed to Guantanamo Bay, Cuba.

Just three months later, around November 2013, Cooper learned that another servicemember had made a sexual-assault allegation against him that the Navy was investigating. Charges were brought against Cooper in April 2014. A general court-martial proceeding followed and, in September 2014, Cooper was convicted of "three specifications of sexual assault and one specification of abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920." He was convicted in September 2014. Cooper appealed his conviction through the military court system.

The record includes a "statement of confinement," dated September 30, 2015, from the Department of the Navy. It states that Cooper has been in confinement since his conviction and that his "current release date is 4 August 2019," which "is subject to change."²

In August 2016—while Cooper remained confined and his appeal was pending—his mother, Sims, sued to terminate Cooper’s and Strong’s parental rights and to adopt Joanne. Sims sought termination on the ground that Cooper and Strong voluntarily left Joanne in her possession for an extended period of time without providing adequate support. Sims did not cite to particular subsections of the termination statute, instead, relying on general allegations of absence and nonsupport. Within the same pleading, Sims petitioned to adopt Joanne.

Cooper filed a pro se answer. He informed the court that he was confined at the Naval Consolidated Brig in Miramar, California and that he "strongly desires to maintain his parent child relationship with his daughter and in no way wishes it is interfered with by his mother Rita Sims."

The trial court appointed an amicus attorney "to provide legal services to assist the Court in protecting" Joanne’s interests. And the trial court entered an order for an evaluator selected by the Harris County Domestic Relations Office to "prepare an evaluation to determine whether termination of [Cooper’s and Strong’s] parental rights is in the best interest" of Joanne and to "evaluate the circumstances and the condition of [Sims’s] home and social environment." The results of these evaluations are not in the record.

In February 2018, Cooper moved for the trial judge to confer with Joanne in chambers to learn of Joanne’s wishes as they related to the termination and adoption proceedings. His motion also requested that the interview be recorded and made part of the record. The record does not include any written order disposing of Cooper’s motion. Nor is there any indication in the record that the trial judge met with Joanne.

Later that month, Sims amended her petition to add an additional ground for terminating Cooper’s parental rights. She sought termination because Cooper has been "convicted by a Military Court-Martial" for the offenses of "unauthorized absence," "wrongful use of marijuana," and "sexual assault," had been sentenced to five years' confinement, and had his convictions affirmed by the United States Navy-Marine Corps Court of Criminal Appeals on May 26, 2016. Again, Sims did not specify any particular subsections of the termination statute.

Cooper then moved to stay the proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. § 3932(b) (permitting trial court to grant 90-day stay in proceedings for servicemembers and for extended stays under certain conditions). The trial court granted a 90-day stay, which stayed the proceedings until May 2018.

During the stay, in March 2018, a military appellate court reversed Cooper’s court-martial, concluding that he was denied his statutory right to available counsel of his choice. The court also considered the legal and factual sufficiency of the evidence supporting the sexual-assault convictions. It described the government’s case against Cooper as "not overwhelming" but, nonetheless, supported by legally and factually sufficient evidence. See United States v. Cooper , No. 201500039, 2018 WL 1178847, at *16–17 (N.-M. Ct. Crim. App. Mar. 7, 2018) (citing Uniform Code Military Justice art. 66(c), and United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002) ), rev'd , United States v. Cooper , 78 M.J. 283, 283–84, 2019 WL 629509, at *1 (A.F. Ct. Crim. App. 2019). The appellate court reversed the conviction, set aside the sentence, and remanded the case. Cooper remained confined at the Navy Brig in California as he awaited retrial.

The stay ended in May 2018, and the termination and adoption trial began that month. Cooper appeared by phone; his counsel was present at trial. Sims answered two questions on the record, then the trial court announced that trial would be recessed until a later date. All remaining testimony and evidence was presented about three months later, on September 8, 2018, which was approximately one year before Cooper’s anticipated release date from confinement by the Navy, even without a successful appeal. At the September 2018 trial, Cooper again participated by phone, while his attorney appeared in person.

Sims was asked about the circumstances under which Joanne originally came to live with her in 2011. Sims stated that Joanne had been living with her mother, Strong, in Virginia. Strong called Sims and asked Sims to take Joanne because Strong could no longer care for the young girl. Sims testified that she flew to Virginia and brought Joanne back to live with her. She stated that she gave Cooper the opportunity to "come and see" Joanne "but he chose to do other things." Sims was asked, "And did they express any intent to return?" Sims replied, "Not exactly." Sims explained that Strong had indicated that her situation might change in the future and that Cooper, for his part, "was doing his thing and [would] just come and drop by here and there to see" Joanne. According to Sims, neither parent "took any responsibility" for Joanne.

Sims testified that she was named sole managing conservator of Joanne in 2012 and that Cooper and Strong have seen Joanne only once since then, when they attended Joanne’s baptism in 2014. According to Sims, neither parent has had any other in-person visit with Joanne since 2012.

Sims also testified that Strong never paid any child or medical support and that Cooper paid child support only for the first three months. Sims calculated that each parent separately owed her over $21,000 in past due payments. Sims testified that she, alone, has paid for Joanne’s food, clothing, shelter, and other needs since 2012. She agreed that she has been able to provide for Joanne "really rather well" and that Cooper had been aware that she would provide for Joanne financially.

Sims testified that Joanne should be eligible for insurance benefits as a dependent of a servicemember but that Cooper has not taken any steps to assist Sims in obtaining an insurance card to access those benefits for Joanne.

Sims testified that Cooper has talked infrequently to Joanne on the telephone during the past couple years while he has been incarcerated.

Sims testified that she thought it was in Joanne’s best interest that Cooper’s and Strong’s parental rights be terminated, and she asked the trial court to do so. Specifically, Sims asked the trial court to terminate Cooper’s parental rights because he was confined to military prison after engaging in criminal conduct and because he failed to support Joanne for the past five years. Sims also requested a money judgment against Cooper and Strong for...