In re S.C.
| Decision Date | 07 April 2022 |
| Docket Number | 09-21-00325-CV |
| Parties | IN THE INTEREST OF S.C. |
| Court | Texas Court of Appeals |
Submitted on February 17, 2022
On Appeal from the County Court at Law Orange County, Texas Trial Cause No. C200555-D
Before Kreger, Horton and Johnson, JJ.
Father (or "D.C.") appeals from the judgment of the trial court, which terminates both Father's and Mother's parental rights to "Sally," their child.[1], [2] Father challenges: (1) the legal and factual sufficiency of the evidence to support a finding that he committed the predicate act under Texas Family Code section 161.001(b)(1)(Q); (2) the legal and factual sufficiency of the evidence to support that termination was in the child's best interest; (3) the trial court's conservatorship determination; and, (4) in four issues, asserts the trial court committed multiple errors denying him his due process rights and right to counsel. See Tex. Fam. Code Ann. § 161.001(b)(1)(Q), (b)(2).
Additionally J.S.G. and A.G. (collectively referred to as "Foster Parents"), filed a notice of appeal challenging the trial court's ruling striking their petition in intervention for lack of standing. Foster Parents argue the trial court erred by ruling they lacked standing to petition for termination and adoption under section 102.005(3) of the Texas Family Code. See Tex. Fam. Code Ann. § 102.005(3) ().
We reverse the portion of the trial court's order terminating Father's rights and the trial court's order striking Foster Parents' petition in intervention and as to Father, remand the case for a new trial.
On September 22, 2020, the Texas Department of Family and Protective Services ("the Department") filed Trial Cause Number C200555-D, In the Interest of S.C., an Original Petition for Protection of a Child, For Conservatorship, and For Termination in Suit Affecting the Parent-Child Relationship. In the suit, the Department named D.C. as the "alleged father." The Department sought termination of the parental rights of Mother and Father and appointment of the Department as sole managing conservator of Sally. A supporting affidavit stated that on June 17, 2020, Mother "was found lying in a ditch under the influence of methamphetamines or other substances[]" and that Mother "admitted to not knowing the location of her 1 year old daughter, [Sally.]" The affidavit further stated that a maternal aunt, K.J., located Sally at the home of an individual who was unaware of Sally's presence, and local law enforcement identified the residence as a concern due to suspected drug trafficking. According to the affidavit, Sally was released to K.J. The affidavit stated that Mother subsequently failed to provide a satisfactory sample for drug testing.
The supporting affidavit further averred that on June 21, 2020, an investigator contacted the alleged Father, who was incarcerated at the TDCJ Dalhart Unit. Father told the investigator the soonest he would be released was in April 2021, but his sentence would not expire until 2024. The affidavit noted:
The supporting affidavit further indicated that Mother continued to use illegal drugs and on September 1, 2020, "admitted to relapsing on methamphetamines."
Due to her non-compliance with FBSS, on September 10, 2020, Mother and her boyfriend were court ordered to participate in services with the Department. The affidavit explained that while Sally was in the parental child safety placement with K.J., on September 17, 2020, she was found with a four-year-old at a flea market alone a quarter of a mile from the residence. Police transported the children to the police department. When Mother arrived at the police department, she had to be escorted from the building by law enforcement.
The affidavit also reveals the caseworker contacted another potential caregiver. While that caregiver initially took Sally into his care, on September 19, 2020, the replacement caregiver then advised the Department he could not continue to care for Sally but would do so until the Department could make other arrangements for her care. The affidavit stated that given the concerns about Mother's history of illicit drug use, previous child's prior history of being removed from her home, and her caregiver being unable to provide the continuity in care Sally really required, the Department was concerned for Sally's safety and well-being, and therefore, wanted the trial court to appoint the Department as Sally's temporary managing conservator.
On October 2, 2020, the trial court ordered genetic testing of the alleged Father and of the child. The parties were also ordered "to appear at the next scheduled Court hearing following completion of genetic testing[.]" Each of the trial court's status hearing orders from October 2, 2020 to July 23, 2021 noted that D.C., the alleged Father, had not yet been served. That said, the Status Reports filed by the DFPS with the trial court during that time period indicate that D.C. as the "alleged Father" was aware of the proceeding and he was entitled to notice of the hearings, and the Department mailed D.C. a copy of the family service plan, and during the pendency of the case, D.C. had been in "frequent communication" with the caseworker.
Foster Parents filed an Original Petition in Intervention and for Termination of Parental Rights in Trial Cause Number C200555-D and on May 14, 2021, Foster Parents filed a Trial Brief in Support of Petition in Intervention and for Termination. Foster Parents alleged standing as adults who have had actual possession and control of the child for not less than two months during the three-month period preceding the filing of the petition. See Tex. Fam. Code Ann. § 102.005(3). The Department moved to strike and dismiss the plea in intervention. The Department argued that Foster Parents cannot maintain standing under section 102.005(3) because Section 102.003(a)(12) grants standing specifically to foster parents of a child placed in their care for at least twelve months ending not more than 90 days before the filing of the petition. Compare Tex. Fam. Code. Ann. § 102.005(3), with § 102.003(a)(12). The Department further argued that section 102.005 did not apply because the Department, not Foster Parents, had actual control of the child through a court- ordered temporary managing conservatorship. The Department maintained Section 102.005 does not apply because the Department is seeking termination and conservatorship, not termination and adoption.
On March 4, 2021, the trial court held an initial permanency hearing, for review of conservatorship appointment and the placement of the child. The alleged Father, D.C., still had not been served and did not appear at the hearing. The trial court found at the hearing that D.C. "has demonstrated minimal compliance with the service plan."
The trial court heard Foster Parents' motion in intervention on May 14, 2021 in another case involving unrelated children removed from the same home, and the trial court noted that the hearing would be instructive in Sally's case as they involved identical issues. Foster Parents admitted that because they had the children for less than 12 months, they could not establish standing to file an original suit affecting the parent-child relationship under section 102.003(a)(12) of the Texas Family Code. They argued they established standing to file a suit for termination and adoption under section 102.005(3).
Subsequently, the trial court held a hearing regarding the children's placement following their removal from Foster Parents' home. The hearing took place over three separate days, May 24, 2021, June 9, 2021, and July 8, 2021. The trial court determined that Sally, who had since been placed with C.M. and S.M. (the "Moores"), would remain in that placement. The trial court noted that Sally was doing well in that placement and would not impose another trauma on Sally by moving her again. Father did not attend these hearings, and nothing in the record indicates he received notice of these hearings.
On July 8, 2021, the trial court also signed an order striking the intervention and dismissing Foster Parents as parties to the case. Foster Parents sought mandamus relief in this Court. We denied the petition for a writ of mandamus. See In re J.S.G. and A.G., No. 09-21-00252-CV, 2021 WL 4312983 (Tex. App.-Beaumont Sept. 23, 2021, orig. proceeding) (per curiam) (mem. op.).
The clerk's record reflects that on September 1, 2021, Father signed a waiver of service and general appearance. Trial commenced on September 2, 2021, where Father appeared for the first time, requested counsel, and counsel was appointed for him during the hearing.[3] Father testified that he completed the paperwork for a DNA test and wanted the test done. The Department explained that DNA testing had been ordered in October 2020, and the Attorney General's office erroneously scheduled it somewhere Father could not go to due to his incarceration, which the Department acknowledged was not his fault.
The trial date was then reset to September 9, 2021, and Father appeared with counsel. Father's attorney noted that...
To continue reading
Request your trial