In re T.M.R.
| Decision Date | 28 October 2021 |
| Docket Number | 13-21-00144-CV |
| Parties | IN THE INTEREST OF T.M.R., A CHILD |
| Court | Texas Court of Appeals |
On appeal from the 36th District Court of Bee County, Texas.
Before Chief Justice Contreras and Justices Hinojosa and Silva
This appeal concerns the trial court's order terminating the parental rights of appellant J.R.R., the biological father of T.M.R., a child born in 2015.[1] By three issues, J.R.R. argues (1) the trial court committed reversible error by not appointing an amicus attorney or attorney ad litem to represent the legal interests of the child; (2) the evidence was legally and factually insufficient to support grounds for termination under part (E) of Texas Family Code § 161.001(b)(1); and (3) the evidence was legally and factually insufficient to support a finding that termination was in the best interests of the child. We affirm.
The original petition in this case was filed on September 26, 2018, by appellees R.A., the child's mother; and J.J.A., her then-fiance. The petition sought termination of J.R.R.'s parental rights and for J.J.A. to adopt the child. Appellees argued that both actions were in the best interest of T.M.R.; nevertheless, the petition specifically requested that an attorney ad litem be appointed "to provide legal services for the child." J.R.R., pro se, filed a letter with the trial court stating that he received the petition but was presently incarcerated and would be requesting a bench warrant or for the termination trial to be postponed until his release. J.R.R. did not request that an attorney ad litem be appointed for the child.
At trial on April 23, 2021, the three parties to the suit appeared in person and were represented by counsel. The parties were the only witnesses to testify. J.R.R., called to testify by appellees' counsel, stated that he is forty-three years old and works in electrical and air conditioning service. He was imprisoned in 2016 for theft of property and released in May of 2020; however, he was arrested again while on parole in February of 2021 on methamphetamine manufacturing, delivery, and possession charges and was in jail at the time of trial.[2] He stated he has had several other convictions, including two for methamphetamine possession; however, he denied that he has used methamphetamines since he went to prison. He also denied that he had any gang affiliation. J.R.R. testified that he received several vocational certificates and completed a parenting program and cognitive intervention program while incarcerated.
J.R.R. said he last saw T.M.R. when the child was around four months old.[3] When asked whether he ever assaulted R.A., J.R.R. stated: Photos of J.R.R. holding T.M.R. as an infant were entered into evidence. On cross-examination by his own counsel, J.R.R. agreed that R.A. used methamphetamines with him, including while R.A. was pregnant. He clarified that, although he was then incarcerated on methamphetamine charges, he had not been indicted. He stated that, due to a "blue warrant"[4] expiring in June of 2021, he will be released from jail at that time if he does not have any pending indictments. J.R.R. stated that, before he was imprisoned in 2016, he provided cash support and baby supplies to R.A., and he visited with T.M.R. "many times" at a motel or at R.A.'s house.
R.A. testified that J.R.R. last provided cash or supplies to her "[w]ithin the first few months" of T.M.R.'s life, and that he last saw T.M.R. when the child was about four months old. R.A. agreed that she was "involved in" the same offense for which J.R.R. is currently on parole. She explained that she and J.R.R. were both arrested in a "raid" on a drug house in 2014, while she was on probation, and she learned she was pregnant with T.M.R. while she was in jail. She gave birth shortly after being released. On the day of T.M.R.'s birth, J.R.R.'s mother posted bond for J.R.R. and brought him to the hospital.
R.A. testified that she later asked J.R.R. to leave her mother's house, where she was living, because he was in possession of methamphetamine.
R.A. stated that she has had no new arrests since T.M.R.'s birth, but she opined that J.R.R.'s behavior has not changed. She recounted that, on August 31, 2015, J.R.R. came to her mother's house and took R.A. and the child shopping for baby supplies in his work truck. However, before they reached the store, R.A. observed "[p]araphernalia on the floorboard" and she decided to get out of the truck and return home with the child. When R.A. and T.M.R. exited the truck, J.R.R. "turned the truck around" and "chased" her down the road while she was holding the child. She said J.R.R. then "grabbed" her by the hair, hit her on the head, and "drug us down the side of the truck." She filed a police report and did not contact J.R.R. again.
R.A. stated she has known J.J.A. since high school and they have been married for two years. She agreed that T.M.R. treats J.J.A. like he is his father, and J.J.A. treats T.M.R. the same as his own son. R.A. opined that J.J.A. has better parenting abilities than J.R.R. J.J.A. testified that, while R.A. does not have employment outside of the home, he has been employed at a ranch for around six years and has taken care of T.M.R. since the child was two years old. Photos of J.J.A. with T.M.R. were entered into evidence.
On cross-examination, R.A. conceded that she had used methamphetamines with J.R.R. prior to T.M.R.'s birth. She agreed that this was a violation of her probation and that she probably lied to her probation officer about it. She also agreed that, though her household was chaotic and unstable when she was with J.R.R., she "participated in" the chaos as well and it would be "unfair to blame everything" on J.R.R.
In rebuttal testimony, J.R.R. denied chasing R.A. down in a truck or bringing drugs to R.A.'s mother's house. He explained that on August 31, 2015, he was taking R.A. to San Antonio to see his older son in the hospital. He and R.A. were "fighting" when R.A. "jumped out [of] the truck." He said he told R.A. to get back in the truck "because it's too far to be walking with my baby out in the sun," but R.A. refused. J.R.R. testified that, during this event, a "substance" which he suspected to be drugs fell out of R.A.'s purse.
The trial court found that (1) J.R.R. engaged in conduct or knowingly placed T.M.R. with persons who engaged in conduct which endangered T.M.R.'s physical or emotional well-being, (2) termination of J.R.R.'s parental rights is in the child's best interests, and (3) adoption of T.M.R. by J.J.A. is in the child's best interests. See TEX. FAM. CODE ANN. § 161.001(b). The trial court signed a judgment, in accordance with these findings, terminating J.R.R.'s parental rights and stating in part:
The Court finds that no attorney ad litem or amicus attorney was required to be appointed for the child, as [R.A.] and [J.J.A.]'s interests were not in conflict with the best interests of the child and the child's interests are able to be adequately represented by [R.A.] and [J.J.A.].
This appeal followed.
By his first issue, J.R.R. contends the trial court committed reversible error by failing to appoint an amicus attorney or attorney ad litem under Texas Family Code § 107.021. That statute states:
TEX. FAM. CODE ANN. § 107.021(a-1). The court may make an appointment under this statute "only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child, unless the appointment is otherwise required by [the family code]." Id. § 107.021(b)(2).
We review a trial court's determination under § 107.021 for abuse of discretion. See In re B.L.D., 113 S.W.3d 340, 347 (Tex. 2003). To demonstrate an abuse of discretion, the appellant must show that the trial court acted in an arbitrary or unreasonable manner, without reference to guiding principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The trial court does not abuse its discretion if there is "some evidence of a substantive and probative character" to support its decision. Gray v. Shook, 329 S.W.3d 186, 195 (Tex. App.- Corpus Christi-Edinburg 2010), aff'd in part, rev'd in part on other grounds, 381 S.W.3d 540 (Tex. 2012) (per curiam); Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.-San Antonio 2006, no pet.); Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.-Austin 2002, no pet.) ( that "[t]he trial court is in the best position to observe the demeanor and personalities of the witnesses and can 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record").[5]
In support of his first issue, J.R.R. cites case law providing that, when one parent seeks termination of the other's parental rights, it is unusual that one party can adequately protect the interests of the child. See In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.- Amarillo 2010 no pet.) ("[W]here parents are adversaries in a suit to terminate one parent's rights, the trial court can seldom find that one party...
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