In re M.A.N.M.
| Decision Date | 06 February 2002 |
| Docket Number | No. 04-01-00295-CV.,04-01-00295-CV. |
| Citation | 75 S.W.3d 73 |
| Parties | In the Interest of M.A.N.M., a Child. |
| Court | Texas Court of Appeals |
Rogelio Lopez, The Law Office of Rogelio Lopez, San Antonio, for Appellant.
Denise Martinez, Law Offices of Denise Martinez, P.C., Michael D. Robbins, Attorney At Law, Rudolph F. Jass, Jr. (ADL), Attorney At Law, San Antonio, for Appellee.
Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice KAREN ANGELINI, Justice.
Opinion by KAREN ANGELINI, Justice.
The trial court terminated John Ramirez's parental rights to M.A.N.M. Ramirez appeals the judgment in three issues. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Anthony Medina and Tammy Sells were married at the time of trial. When they married, Sells was pregnant; Medina, however, is not the biological father of the child. John Ramirez is the child's biological father. M.A.N.M. was born in January of 1999 with cocaine in her system. Medina knew Sells was using drugs and drinking heavily, at times, during her pregnancy. Child Protective Services intervened and implemented a safety plan, allowing Medina and Sells to reside with M.A.N.M. at Medina's mother's home. Approximately one month after M.A.N.M.'s birth, Sells moved out of Medina's mother's home. Sells' parental rights to M.A.N.M. were later terminated. M.A.N.M., however, remained with Medina at his mother's home. The child refers to Medina as "Dada" and to Medina's mother as "Mamau." At the time of trial, Medina had applied for insurance for M.A.N.M. and, while he and his mother are at work, M.A.N.M. is in daycare. Medina's mother believes it is in M.A.N.M.'s best interests to terminate Ramirez's parental rights and allow the child to remain with the "only family that she knows, the family that's been there from the very beginning." Medina also believed it was in M.A.N.M.'s best interests for Ramirez's parental rights to be terminated.
Before M.A.N.M.'s birth, Ramirez provided some financial support to Sells, with the understanding that the money was for the unborn child. Ramirez was employed "off and on" and earned eight dollars an hour. After M.A.N.M. was born, Ramirez offered to pay Medina money, conditioned on being able to see the child. Ramirez, however, did not provide any support to Medina.
Ramirez contacted C.P.S. on February 5, 1999, and again on March 27, 1999, expressing his intent to pursue his legal rights as M.A.N.M.'s father and leaving a number where he could be contacted. C.P.S. did not consider Ramirez as a "participating family member" because Sells was married to Medina at the time of M.A.N.M.'s birth. C.P.S. advised him to seek legal assistance to establish paternity. Until he did so, Ramirez had no right to visit the child, absent cooperation from Sells.
Because Ramirez did not have the financial ability to hire an attorney, he sought the assistance of Legal Aid. Legal Aid referred him to the Attorney General's Office. Because Ramirez did not have M.A.N.M.'s name or social security number, the Attorney General was unable to provide him with assistance. Ramirez then hired his own attorney.
Ramirez was made aware of the petition to terminate his parental rights in May of 2000. The parties agreed to a paternity test, which identified him as M.A.N.M.'s biological father. Ramirez also agreed to submit to a drug test. Ramirez tested positive for cocaine and marijuana use. Ramirez first started to use drugs recreationally as a teenager. Occasionally, Ramirez bought drugs. Ramirez admitted that he spent at least $2,000 on drugs during the two years preceding trial and that he could have used that money to hire a lawyer to assist him in protecting his rights as M.A.N.M.'s biological father. Within the month before trial, Ramirez began attending Narcotics Anonymous meetings twice a week. He plans to continue attending the meetings. Ramirez's parents have expressed an interest in helping him recover from his addiction. Ramirez admitted that he should have stopped using drugs once he learned his child had been born dependent upon them.
Ramirez pays $200 in rent to live with his parents. He has lived with them his entire life. His mother testified that Ramirez is capable of earning and saving money. At the time of trial, Ramirez was working forty hours a week and earning ten dollars an hour. Ramirez's parents support him "100 percent" regarding obtaining custody of M.A.N.M. Ramirez testified he was ready to take on the responsibility of a two-year-old child, particularly with the help of his family.
Wendelyn Thornton, a Child Protective Services Program Administrator, testified about M.A.N.M.'s family's history. She also testified that Sells had indicated to her that Ramirez was abusive. Medina's mother also testified that Sells told her a restraining order was in place against Ramirez because, during her pregnancy, Sells and Ramirez were involved in an altercation. Thornton testified that it is very difficult for a child to form any significant attachment to a parent, when that child has not been exposed to the parent during the child's first two years of life.
Ramirez believes that he and his child have "a bond." According to Ramirez, M.A.N.M. recognizes him and is, at times, loving to him. Ramirez agreed that he could work with Medina to take care of M.A.N.M., but that, eventually, he intends to seek and gain full custody of the child.
The ad litem also believes that a relationship has started between M.A.N.M. and Ramirez and would like to see it continue. And, although he recognized that it would be difficult emotionally to remove the child from Medina, termination of Ramirez's parental rights was not in her best interests. The ad litem testified that he has seen Ramirez interact with M.A.N.M. According to the ad litem, Ramirez interacted well with and was patient with the child. Medina's mother, however, testified that although M.A.N.M. is somewhat more restrained than she normally is when she's with Ramirez, she does not perceive Ramirez as a threat to the child.
Based on the evidence adduced at trial, the trial court terminated Ramirez's parental rights. Specifically, the court found based upon clear and convincing evidence that Ramirez "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 this petition." The court also found termination was in M.A.N.M.'s best interests.
Ramirez appeals the termination. He challenges the legal and factual sufficiency of the evidence supporting the trial court's findings. He further maintains that the trial court abused its discretion in denying his motion for new trial.
SUFFICIENCY OF THE EVIDENCE
Involuntary termination of parental rights is a drastic remedy. In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980). Termination involves fundamental constitutional rights, and the proceeding must be strictly scrutinized. Id. at 846. There is a strong presumption that the best interests of a child are usually served by retaining custody in the natural parents, and the termination of parental rights cannot be justified without the most solid and substantial reasons. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). However, the need for permanence is the paramount consideration for the child's present and future physical and emotional needs. Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex.App.-Dallas 1995, no writ). The goal of establishing a stable, permanent home for a child is a compelling government interest. Id.
The Texas Family Code, in order to protect the relationship between a parent and child, requires a showing by clear and convincing evidence that the parent in question behaved in some manner that was detrimental to the child. Tex. Fam.Code Ann. § 161.001 (Vernon Supp.2001). This intermediate standard colors our review of the factual sufficiency of the evidence in a termination case. See In re B.T., 954 S.W.2d 44, 46 (Tex.App.-San Antonio 1997, writ denied). Applying this standard to our review of a trial judge's findings, we review all of the record evidence and ask whether sufficient evidence was presented to produce in the mind of a rational fact finder a "firm belief or conviction as to the truth of the allegations sought to be established." Tex Fam.Code Ann. § 101.007 (Vernon Supp.2001); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). The trial court's judgment will be set aside only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Djeto v. Texas Dep't of Protective & Regulatory Servs., 928 S.W.2d 96, 97 (Tex.App.-San Antonio 1996, no writ).
In deciding a legal sufficiency issue, we consider only the evidence tending to support the finding and disregard all evidence to the contrary. Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998); In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied). If more than a scintilla of evidence supports the trial court's findings, the appealing parent cannot prevail on a legal sufficiency point. In re R.D., 955 S.W.2d at 368.
The trial court found that Ramirez failed to support M.A.N.M. "in accordance with his ability during a period of one year ending within six months of the date of this filing of this petition." Tex. Fam.Code. Ann. § 161.001(1)(F) (Vernon Supp.2001). To terminate parental rights on non-support grounds, the evidence must establish that the parent failed to support the child for twelve consecutive months and had the ability to contribute to the support of the child for twelve consecutive months. In re D.L.B., 943 S.W.2d 175, 177 (Tex.App.-San Antonio 1997, no writ); In re Guillory, 618 S.W.2d 948, 951 (Tex. App.-Houston [1st Dist.] 1981, no writ). One court of appeals has found there was legally and factually sufficient evidence of nonsupport,...
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