In re S.M.M.
| Decision Date | 29 December 2022 |
| Docket Number | 01-22-00482-CV |
| Parties | IN THE INTEREST OF S.M.M., A CHILD |
| Court | Texas Court of Appeals |
IN THE INTEREST OF S.M.M., A CHILD
No. 01-22-00482-CV
Court of Appeals of Texas, First District
December 29, 2022
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2020-01965J
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
PETER KELLY, JUSTICE
E.H., the father of S.M.M., appeals from the trial court's decree terminating his parental rights to his daughter, who was about one-and-a-half years old at the time of trial. On appeal, E.H. raises three issues. The first two issues challenge the legal and factual sufficiency of the evidence to support the trial court's findings that he committed the predicate act of abandonment, see TEX. FAM. CODE
§ 161.001(b)(1)(N), and that termination of his parental rights is in the best interest of S.M.M. In his third issue, E.H. argues that the trial court abused its discretion by granting the Department of Family and Protective Services sole managing conservatorship over S.M.M.
We affirm.
Background
E.H., the father of S.M.M., met the mother near the beginning of 2020. According to the father, they saw each other occasionally throughout much of the year. In mid-2020, the father learned through a mutual friend that the mother was pregnant. According to the father, the mother's whereabouts were unknown, or she was missing, not long before the birth of S.M.M. Sometime around September 2020, the mother was arrested. She went into labor while in jail and delivered S.M.M. in late September 2020.
In addition to being in jail, the mother had mental health challenges and was using illegal drugs, so S.M.M. came into care when she was just a few days old. S.M.M. was placed with a foster family, who has cared for her for the duration of the case. The mother did not provide the Department of Family and Protective Services (the "Department") with names of any family or friends who could immediately provide care for S.M.M., but she did provide the names of two men
who were possibly S.M.M.'s father: E.H. and K., whose last name was unknown to the mother.
The mother was released from jail, and, sometime after December 2020, she went to California to live with her biological mother. While she was in California, the mother contacted the father, told him that S.M.M. had been born, and that she was in foster care.
Sometime in March or April 2021, the mother returned to Texas and contacted the Department caseworker, Chenelle Parks. The mother was living with a relative in Houston, and she wanted to resume virtual visits with S.M.M., which she had done while in California. By July 2021, the mother had failed to comply with her family plan of service, and the Department changed the permanency goal for S.M.M. from family reunification with the mother to unrelated adoption. The Department was considering adoption of S.M.M. by the foster family who had cared for her since just after her birth.
In July 2021, the father was living with friends, unemployed, and looking for a job. The evidence showed that the father was homeless during the pendency of this case. Although the father testified that he had stable employment, he testified only about a job working for a security company making "probably" $8 an hour, which he quit because he did not earn enough money to support his lifestyle. The father also lacked reliable transportation and phone service. According to the father, from
July 2021 until November 2021, he did not have standard mobile phone service, so the phone number he provided was the number assigned to him by an app called "TextNow," which provided free phone and text messaging when the user had access to WiFi. TextNow allowed text messages to be retrieved whenever the father had access to WiFi.
Both Parks and the father testified about their communications and the evidence is inconsistent about some details. Parks testified that she spoke to the father in April 2021. She testified that the father told her he knew that S.M.M. had been born and he believed she was his child. The father testified that around April 2021, he contacted Parks to provide information, including the names of relatives who could potentially care for S.M.M. or provide a connection to contact him. The father testified: "I did not want . . . my child to be into the system because I went through it. Most all of us went through it. You know, that's something I didn't want to happen. So, I figured-I'm not sure if it's mine, whatever, I would at least give information, just give it just in case."
Parks testified that she told the father in April and July 2021 about the need for DNA testing and the fact that S.M.M. was in foster care. Parks testified that the father was aware of where he needed to go for DNA testing, that no appointment was needed, and that the Department would arrange payment for the service. In July 2021, Parks told him that he needed to submit to DNA testing. She later testified:
"The time frame was at least by that next week. And I gave that just due to his inability, you know, with nowhere to live and he needed transportation. So, I did give him up to seven days that he could go, business days." The father gave Parks the name and contact information for one of his sisters, "Theresa,"[1] who did not reside in Texas. The father later testified that he did not have contact information for his sister, "Connie,"[2] who lived in Houston. Parks reached out to "Theresa," who gave her Connie's name and contact information. When Parks later reached out to them to locate the father, neither sister knew his whereabouts.
The father testified that he called Parks in July 2021 because she had messaged him on social media. At trial, the father was asked whether she had informed him there was a pending case "regarding your child," and he testified: "Oh, yes. Yes." The father also testified that he was not certain he was the father of S.M.M. at that time because paternity had not been established by DNA, although he also later testified that he had assumed the baby was his since he learned of the mother's pregnancy and S.M.M.'s birth.
The father did not communicate with Parks, or anyone else from the Department, after July 2021. The father testified that the caseworker did not tell him that he was required to communicate with her on a consistent basis. He did not
complete the DNA testing. He did not provide any support to S.M.M. Although the father testified that he asked the mother if he could join in one of her virtual visitations with S.M.M., he did not contact Parks to request or set up visitation.
In November 2021, the father was arrested on charges of aggravated robbery, and he remained in jail through trial in this case, which was conducted on March 22, 2022 and May 10, 2022. In February 2022, the father's appointed counsel notified the Department by email that the father was in the Harris County jail. At that time, the father had not yet submitted to DNA testing, and his parentage of S.M.M. had not been established. The father had not, therefore, been served with citation of the lawsuit or given notice of the trial dates.
The trial began on March 22, 2022. At that time, the court heard evidence regarding the mother, but the trial was continued to allow the father to be served and to complete DNA testing. The court noted, however, that the father appeared at trial, waiving service. DNA testing in April 2022 established the father's parentage of S.M.M., and the Department began a home study to determine the suitability of Connie's home for S.M.M. Connie, the Houston-based sister, had expressed an interest in placement of S.M.M. On May 7, 2022, three days before trial resumed, the final home visit needed to complete the home study was conducted, although the Department had until May 20, 2022 to finalize the report and make a recommendation.
On May 10, 2022, the trial resumed with evidence relevant to the father. At the outset, the father's counsel argued for a continuance to allow for finalization of Connie's home study and to enable the father to receive and work a family service plan. The Department opposed the motion for continuance, saying: "We believe that the child does have permanency at this point, and we are ready to move forward."
At trial, Parks testified that the father had a service plan, and its only requirement was to complete DNA testing. She said that she had planned to create a family service plan for the father after DNA established his parentage of S.M.M., but after reviewing the case with her supervisors, the decision was made to go forward with termination of his parental rights without a new family service plan.
Parks testified that the Department's goal was to keep S.M.M. in her current foster home until finalization of Connie's home study and, assuming the home study was approved, a determination about whether moving S.M.M. from her current foster home to Connie's home would be in her best interest. The Department was pursuing termination of the father's parental rights and seeking permanent managing conservatorship of S.M.M.
Parks was asked why the Department sought termination of the father's parental rights, when he was a non-offending parent and there were no allegations that he had abused or neglected S.M.M. Parks testified that the issue was his stability. After speaking with him in 2021, the father did not contact the Department, failed to
submit to DNA testing, and was homeless. Parks said that she stopped communicating with the father's sisters because the Department had not been able to confirm his parentage of S.M.M.
Parks conceded that she did not submit the paperwork necessary to obtain payment for DNA testing services, but she also said that the testing laboratory calls the Department when the parent arrives. She also conceded that the Department received an email from the father's attorney in February 2022 indicating...
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