In the Interest of A.R.R., 2-01-030-CV

• Decision Date: 08 November 2001
• Docket Number: No. 2-01-030-CV,2-01-030-CV
• Citation: 61 S.W.3d 691
• Parties: (Tex.App.-Fort Worth 2001) IN THE INTEREST OF A.R.R
• Court: Texas Court of Appeals

Page 691

61 S.W.3d 691 (Tex.App.-Fort Worth 2001)

IN THE INTEREST OF A.R.R.

No. 2-01-030-CV

Court of Appeals of Texas, Fort Worth

November 8, 2001.

FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

[Copyrighted Material Omitted]

PANEL B:LIVINGSTON, HOLMAN, and WALKER, JJ.

OPINION

DIXON W. HOLMAN, JUSTICE

Appellant Earl Alan Rosenfeld appeals the termination of his parental rights to his child, A.R.R. Rosenfeld complains that (1) the trial court improperly applied section 161.001(1)(L) and (Q) to terminate his parental rights in violation of article I, section 16 of the constitution's prohibition against ex post facto laws; (2) there was no evidence to support the trial court's finding that his parental rights should be terminated; (3) there was no evidence to support the trial court's finding that the termination was in the best interest of the child; and (4) Appellant received ineffective assistance of counsel when his trial counsel failed to raise the defense of limitations or laches. We affirm the trial court's judgment.

Factual and Procedural Background

A.R.R. was born in 1985. In 1991, Appellant was indicted for sexually assaulting A.R.R.'s older sister, but fled to an unknown location for several years. Appellant eventually pled nolo contendere to the charge in 1995 and was placed on five years' probation. After violating seven of the terms of his probation, it was revoked and Appellant was incarcerated in 1996. Currently, though Appellant is eligible for parole, he has requested to remain in prison for the full term, which will end in 2005, when A.R.R. is twenty years old.

In 1993, after living with relatives, A.R.R. again began to reside with her mother. Her mother had several boyfriends and moved around to be with them. Eventually, in 1996, A.R.R. and her mother moved into the home of Jack Hollinsworth. Shortly thereafter, A.R.R. informed her mother that Hollinsworth had touched her breast and forced her to touch his genitals. Because A.R.R.'s mother did not want to leave Hollinsworth, she placed A.R.R. in a children's home for two years. A.R.R.'s behavior at the home became worse and the home finally forced A.R.R. to leave. She was put back in her mother's custody after her mother left Hollinsworth.

In 1999, A.R.R. appeared in court for a hearing on probation for physically assaulting her mother and sister. At that time, her probation officer, Shirene Nelson, noted that A.R.R. looked ill. Nelson learned that A.R.R. had been living in the back of an eighteen-wheeler while she traveled with her mother and Shane Whorley, her mother's new boyfriend.

According to Nelson, A.R.R. had not eaten or showered for some time, was suffering from a severe cold, was not attending school, and had gotten into at least one altercation with Whorley during which he bent her fingers backward. A.R.R.'s mother informed Nelson that she and A.R.R. would be leaving the state to travel in Whorley's eighteen-wheeler with him. Because of A.R.R.'s poor condition and the fact that out-of-state travel was in violation of A.R.R.'s probation, Nelson contacted Child Protective Services (CPS), which obtained an emergency removal of A.R.R. from her mother's custody. A.R.R. was temporarily put into foster care because her mother left the state to travel with Whorley.

On October 4, 1999, the Texas Department of Protective and Regulatory Services (TDPRS) brought suit to determine the parental rights of both Appellant and A.R.R.'s mother. At an adversary hearing on October 15, 1999, TDPRS was appointed temporary sole managing conservator of A.R.R. After a status hearing and three permanency hearings, a final termination hearing was held on December 18, 2000. A.R.R., who was fifteen at the time of the final hearing, testified that she wanted the parent-child relationship between her and Appellant terminated. The trial court's findings of fact noted, "[A.R.R.] is 12 years of age or older and has expressed a strong desire against termination of her mother's parental rights or being adopted. [A.R.R.] desires to have her father's parental rights terminated."

On December 22, 2000, the court issued its final order, appointing TDPRS as permanent managing conservator. The court ordered that A.R.R.'s mother be appointed possessory conservator with supervised visitation, and that Appellant's parental rights be permanently terminated. The court found by clear and convincing evidence that Appellant's rights should be terminated pursuant to section 161.001(1)(B), (L)(vi), and (Q), which provide:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

. . . .

(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;

. . . .

(L) been convicted or has been placed on community supervision . . . for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code . . . .

. . . .

(vi) Section 22.011 (sexual assault);

. . . .

(Q) knowingly engaged in criminal conduct that has resulted in the parent's:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition.

Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2001).

Ineffective Assistance of Counsel

In his fourth issue, Appellant argues that the residuary statute of limitations should apply to termination proceedings because there is no other authority in the family code or elsewhere that dictates the length of time a party has to bring such a cause of action. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 1997) (providing "[e]very action for which there is no express limitations period . . . must be brought not later than four years after the day the cause of action accrues"). Appellant believes that TDPRS was barred from bringing its termination proceeding in 1999 because it was based on his conviction and confinement for acts he committed against his other child in 1990, and that his counsel was ineffective because he failed to raise such a defense.

Nevertheless, the Sixth Amendment right to effective assistance of counsel has not yet been extended to civil actions despite being a right clearly recognized in criminal proceedings. In re B.B., 971 S.W.2d 160, 172 (Tex. App. Beaumont 1998, pet. denied); Arteaga v. Tex. Dep't of Protective and Regulatory Servs., 924 S.W.2d 756, 762 (Tex. App. Austin 1996, writ denied); In re J.F., 888 S.W.2d 140, 143 (Tex. App. Tyler 1994, no writ); Posner v. Dallas County Child Welfare Unit, 784 S.W.2d 585, 588 (Tex. App. Eastland 1990, writ denied); Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729, 734-35 (Tex. App. Dallas 1986, writ ref'd n.r.e.), cert. denied, 481 U.S. 1018 (1987).¹ We overrule the fourth issue.

Ex Post Facto Complaints

In his first issue, Appellant complains that the trial court's reliance on section 161.001(1)( L) and (Q) to terminate his parental rights violates his right against the imposition of ex post facto laws. Appellant bases his contention on the fact that he committed the sexual assault on his daughter in 1990 and subsections L and Q were not enacted until 1997.

Both the Texas and federal constitutions protect citizens from the application of ex post facto laws. U.S. Const. art. I, § 10; Tex. Const. art. I, § 16. However, though the United States Constitution's ex post facto provision applies only to criminal proceedings, the Texas Constitution's ex post facto provision applies to both criminal and civil cases. In re Shaw, 966 S.W.2d 174, 179 (Tex. App. El Paso 1998, no pet.).

Appellant relies on Shaw to support his ex post facto argument, but it is distinguishable from this case. In Shaw, one of the grounds for termination was that contained in former section 161.001(1)(N). Id. at 179. Subsection N contained a provision stating that TDPRS must have been the temporary or permanent managing conservator of a child for "not less than one year"² before a parent could be found to have constructively abandoned the child. Id. at 180. The court in Shaw found the statute violated the ex post facto provision because, in calculating the one-year period required by subsection N, the court had to include time prior to the 1995 date on which the statute became effective. Id. at 182.

Here, the characteristics of an ex post facto violation are not present. Subsection L does not sanction Appellant now for an act that was legal when he committed it, or deprive Appellant of a defense that, at the time he committed the assault, was available.³ Since 1986, the family code has provided that one basis for termination of a parent's rights is if the parent has been adjudicated criminally responsible for the death of or serious injury to a child. Tex. Fam. Code Ann. § 15.02(L) (Vernon 1986) (current version at Tex. Fam. Code Ann. § 161.001(1)(L)). Any sort of crime against a child, including sexual assault, constituted "serious injury" to a child under former section 15.02(L). Therefore, the court's use of current subsection L to terminate Appellant's parental rights was not in violation of the ex post facto provisions of the Texas Constitution.

The elements of section 161.001(1)(Q) are: (1) conviction of an offense; (2) imprisonment for that offense; and (3) inability to care for the child due to imprisonment for at least two years prior to the date on which the petition to terminate the parent's rights was filed. Tex. Fam. Code Ann. § 161.001(1)(Q)(i), (ii). The latest version of subsection Q went into effect on September 1, 1997 and the petition to terminate Appellant's parental rights was filed on October 4, 1999. Because the trial court did not include time prior to the statute's effective date in...