In re A.L.D.H.

• Decision Date: 14 August 2012
• Docket Number: No. 07–11–00489–CV.,07–11–00489–CV.
• Parties: In the Interest of A.L.D.H., a Child.
• Court: Texas Court of Appeals

373 S.W.3d 187

In the Interest of A.L.D.H., a Child.

No. 07–11–00489–CV.

Court of Appeals of Texas,

Amarillo,

Panel B.

June 25, 2012.

Rehearing Overruled Aug. 14, 2012.

Deborah Smith McClure, Attorney at Law, Amarillo, TX, for Appellants.

Sara F. Moore, Attorney F. Moore, Attorney at Law, Lubbock, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

MACKEY K. HANCOCK, Justice.

April and Michael Fortner, appellants, appeal the judgment of the trial court denyingtheir petition to terminate the parental rights of Angel Turner to her daughter, A.L.D.H. The Fortners present five issues on appeal. For the reasons stated herein, we will affirm the judgment of the trial court.

Factual and Procedural Background

A.L.D.H. was born on November 5, 2009. At the time of her birth, A.L.D.H. tested positive for drugs. Turner admitted to using drugs during her pregnancy. Shortly after the child's birth, Turner left the hospital and traveled from Lubbock to Amarillo, Texas, in the company of Richard Adkins. During this period of time, Turner continued to use methamphetamines. On November 14, while returning to Lubbock, Turner was arrested in Plainview, Texas, and her location was unknown to the hospital. During Turner's absence, the hospital was unable to contact anyone regarding the medical treatment for A.L.D.H. The hospital notified the Texas Department of Family and Protective Services (Department) regarding the presence of drugs in the child. Eventually, an investigator for the Department located Turner in the Hale County Jail.

After visiting with the Department's investigator, Turner agreed to a voluntary placement of the child with her relatives, Jerry Don and Stacy Vicks. However, shortly after the agreed placement, the Vicks informed Turner that they were divorcing and would not be able to continue with temporary placement of the child. Stacy suggested that Turner place the child in the temporary care of the Fortners. April Fortner is Jerry Don Vick's sister.

The day following Stacy's suggested temporary placement with the Fortners, Turner met with April in the Hale County Jail. At all times during the pendency of this matter, April has been employed by the Department. Turner agreed to the temporary placement of A.L.D.H. and executed the form for such a placement while incarcerated in the Hale County Jail. The agreement was faxed to the jail from the local office of the Department; however, the Department was not a party to any agreed placement. At the time of the placement, it was agreed that the placement would be temporary until Turner got out of jail and back on her feet. Turner was advised that extended placement with the Fortners might result in the Fortners seeking legal custody of the child. At the time of the execution of the agreement, Turner was not advised that the Fortners intended to seek termination of her parental rights and adoption of the child.

As a result of Turner's arrest, her parole was revoked, and she was sent to prison. While Turner was incarcerated in prison, the Fortners filed an original petition to terminate Turner's parental rights and to adopt the child. Thereafter, a hearing on temporary orders was conducted by the trial court. The trial court appointed the Fortners as Temporary Managing Conservator of A.L.D.H. and Turner as Temporary Possessory Conservator. Turner was released from prison in February 2011. The trial on the termination and adoption petition was held in August of 2011.

As of the commencement day of the trial, A.L.D.H. had been living with the Fortners for all but the first few days of her life. The testimony at trial indicated she was bonded with the Fortners and considered April her mother. The testimony revealed that Turner had been afforded only limited opportunities to visit with the child after her release from prison.

At the trial, the evidence showed that Turner had a significant history of drug abuse. She testified that she had been addicted to drugs for most of her life. However, Turner gave detailed testimony regarding the steps she had taken since her last arrest to stay off of drugs. These included treatment while in prison, outpatient treatment after her release, and continued attendance at AA and NA groups. Her testimony was supported by documentary evidence of her completion of the programs of which she testified. Turner's parole officer testified about Turner's efforts to stay off of drugs and the requirements for drug testing that apply to Turner. The parole officer further testified that all of Turner's drug tests were negative for the use of illicit drugs.

In addition to the testimony regarding Turner's efforts to rid herself of drug addiction, Turner offered detailed testimony about her efforts during the time she was incarcerated to stay in contact with the Fortners regarding A.L.D.H.'s progress. The trial court heard testimony regarding the efforts Turner had made in preparing herself to be a better parent. These included a number of different parenting classes that were directed specifically at women.

The issue of whether Turner was made aware that the Fortners had always intended to seek to adopt the child was hotly contested. Turner testified that she was unaware that it was the Fortners' plan to attempt to terminate Turner's parental rights and adopt the child until the petition was filed. The Fortners presented testimony that Turner was made aware early on that, if she was sent to prison for any period of time that exceeded six months, termination and adoption was an option. However, the trial court's findings of fact included a finding that Turner had been adamant from the beginning that she was not willing to agree to the termination of her parental rights.

At the conclusion of the trial, the trial court found that it was not in A.L.D.H.'s best interest to terminate the parental relationship existing between Turner and A.L.D.H. Following the trial court's announcement, an order denying the petition to terminate and adopt was entered that also named the Fortners as the non-parent Joint Managing Conservator and Turner as the Possessory Conservator of the child. The order entered did not contain a specific visitation schedule; however, the trial court had admonished all parties that visitation was expected to be worked out between the parties in an effort to ease the transition of A.L.D.H. back to Turner. Subsequently, the trial court, on its own motion, modified the conservatorship order to require the parties to cooperate in the transition process through the use of a child specialist to aid in formulating a transition plan.

The Fortners filed a motion for new trial and an amended motion for new trial. The motions contend that there was newly discovered evidence that would result in a different outcome. The essence of the newly discovered evidence was that the biological father, Eric Hair, had executed a relinquishment of parental rights after the trial court's ruling. Additionally, the Fortners contend that psychologist Shaun H. Keel, EdD, had prepared additional reports regarding the child. The motion was overruled by operation of law.

The Fortners' appeal presents five issues for our consideration. First, the trial court abused its discretion in denying the petition to terminate and adopt. Second, the trial court erred in determining that there is a parental presumption applicable to the facts of the case. Third, the trial court abused its discretion in entering its findings of fact and conclusions of law. Fourth, the trial court erred in refusing to admit an expert report. And, fifth, the trial court erred in failing to grant a new trial. Disagreeing with the Fortners, we will affirm the trial court's judgment denying the petition to terminate and adopt.

Denial of Petition to Terminate and Adopt

Applicable Law

We begin with the observation that the relationship existing between a parent and a child is of such importance that it is considered to be of a constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Accordingly, appellate courts strictly construe the termination proceeding. See In re G.M., 596 S.W.2d 846, 846 (Tex.1980). Further, the law accords a strong presumption that the best interest of the child is served by maintaining the parent child relationship. In re T.N., 180 S.W.3d 376, 382 (Tex.App.-Amarillo 2005, no pet.) (citing In re G.M., 596 S.W.2d at 847). In fact, due process dictates a parent's relationship to a child can only be severed by clear and convincing evidence. See id. The Family Code defines clear and convincing evidence as “that 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 2008). As the petitioners in the action to terminate the parental rights of Turner and adopt the child, the Fortners had the burden of establishing by clear and convincing evidence that termination was in the best interest of the child. See Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

Standard of Review

In addressing this standard of review, we note that both the Fortners and Turner have cited the Court to the standard of review utilized in review of an order terminating the parental rights. However, as noted above, we are dealing with a judgment that denied the termination as not being in the best interest of the child. Next, as pointed out above, the appealing parties, the Fortners, had the burden of proof on the issue now being appealed. Thus, we feel that the proper standard of review as to the legal sufficiency of the evidence is as set forth below.

Legal Sufficiency

In reviewing the challenge to the legal sufficiency of the trial court's denial of the petition to terminate, we apply the as-a-matter-of-law standard of review. See In re D.S.G., No....