In the Interest of M.C.M. et al.

• Decision Date: 21 June 2001
• Docket Number: No. 01-00-00888-CV,01-00-00888-CV
• Citation: 57 S.W.3d 27
• Parties: <!--57 S.W.3d 27 (Tex.App.-Houston 2001) IN THE INTEREST OF M.C.M., C.M.M., J.L.M., AND L.S.M. Court of Appeals of Texas, Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 27

57 S.W.3d 27 (Tex.App.-Houston [1st Dist.] 2001)

IN THE INTEREST OF M.C.M., C.M.M., J.L.M., AND L.S.M.

No. 01-00-00888-CV

Court of Appeals of Texas, Houston (1st Dist.)

June 21, 2001

Rehearing Overruled October 21, 2001.

On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 103,809

[Copyrighted Material Omitted] Panel consists of Chief Justice Schneider and Justices Taft and Brister.

OPINION

Schneider, Chief Justice

The appellants, Gregory Matney ("Father") and Marla Matney ("Mother"), appeal from an order terminating their parent-child relationships. We affirm.

Background

Appellants are the adoptive parents of two sons, M.C.M. and J.D.M.¹, and two daughters, C.M.M. and J.L.M. Mother is the biological mother of another daughter born during the marriage, L.S.M. Although not the biological father of L.S.M., Father never disputed paternity. The biological father of L.S.M. is unknown.

On March 12, 1998, the Texas Department of Protective and Regulatory Services ("the Department") filed a suit affecting parent-child relations (SAPCR), seeking to terminate appellants' parental rights to their six-year-old son, J.D.M. On May 26, 1998, the suit was amended to include the other four children. The next day, the Department took emergency custody of all five children. The six-year-old son, J.D.M, was placed in a residential treatment facility, and the other four children were placed in foster homes.

The case was heard by a jury from April 12, 2000, to May 10, 2000. On May 9, 2000, before the case was submitted to the jury, appellants voluntarily terminated their parental rights as to J.D.M., and the trial court entered an order severing the termination proceeding as to that child. The jury then returned a verdict recommending that appellants' parental rights also be terminated as to the other children, and the trial court entered an order of termination as to the remaining children on May 19, 2000.

This appeal followed, in which appellants complain: (1) that the trial court erred by using a broad-form submission of the jury questions; (2) that the order of termination was an order of criminal contempt, for which they were not afforded the protections provided for contemnors accused of violating court orders; (3) that the trial court lacked jurisdiction to enter an order of termination because more than 18 months had passed since the trial court first made the Department managing conservator of the children; (4) that the trial judge should have recused himself because he was not impartial on certain issues raised in the case; and (5) that the trial court abused its discretion by denying them visitation rights.

Broad-Form Submission

In issues seven through 10, appellants argue that the broad-form submission of jury questions is not proper in this type of suit. They claim that, unless the jury makes a specific finding for each ground alleged for termination, as well as a separate finding that termination would be in the best interest of the child, their parental rights cannot be terminated.

The jury charge in this case provided:

For the parent-child relationship to be terminated in this case, it must be proved by clear and convincing evidence that:

1. [Mother] knowingly placed or knowingly allowed [the child] to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or

2. [Mother] engaged in conduct or knowingly placed [the child] with persons who engaged in conduct which endangers the physical or emotional well-being of [the child]; or

3. [Mother] failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of [the child] who has been in the permanent or temporary managing conservatorship of [the Department] for not less than nine months as a result of [the child's] removal from the parent under Chapter 262 for the abuse or neglect of [the child]; or

4. a. [Mother] has a mental or emotional illness or a mental deficiency that renders her unable to provide for the physical, emotional, and mental needs of [the child], and

b. the illness or deficiency, in all reasonable probability, will continue to render [Mother] unable to provide for [the child's] needs until the eighteenth birthday of [the child], and

c. [the Department] has made reasonable efforts to return [the child] to [Mother].

For the parent-child relationship to be terminated in this case, it must also be proved by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child.

Should the parent-child relationship between [Mother] and [the child] be terminated?

Answer "Yes" or "No."

The same jury charge was submitted for [Father], except the fourth ground for termination (mental health) was omitted.

Appellants cite Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984) and Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976), as well as a plethora of other intermediate appellate court cases, which hold that there must be a finding of a statutory ground for termination and a separate finding that termination is in the best interest of the child.

However, all of the cases cited by appellants were decided before the 1988 amendment to Rule 277 of the Texas Rules of Civil Procedure, which now states that "the court shall, whenever feasible, submit the cause upon broad-form questions." Appellants fail to cite Texas Dept. of Human Servs. v. E.B., 802 S.W.2d 647 (Tex. 1990), which is the controlling Texas Supreme Court authority on this issue.

In E.B., which was decided after Rule 277 was amended, the supreme court considered a charge almost identical to the charge in this case, which included multiple grounds for termination listed disjunctively, followed by a single question regarding whether the parent's rights should be terminated. Id. at 648. The Austin Court of Appeals had reversed the trial court, holding that a single broad form question incorporating two independent grounds for termination would permit the State to obtain an affirmative answer on the termination issue without proving, to the satisfaction of at least 10 jurors, that the parent violated one or more of the grounds for termination under the statute. E. B. v. Texas Dep't of Human Servs., 766 S.W.2d 387, 390 (Tex. App.--Austin 1989), rev'd, 802 S.W.2d 647 (Tex. 1990). The supreme court reversed the court of appeals and held, "The controlling question in this case was whether the parent-child relationship . . . should be terminated, not what specific ground or grounds under [the statute] the jury relied on to answer affirmatively the question posed." E.B., 802 S.W.2d at 649. In so holding, the supreme court approved both the instruction, which disjunctively submitted the alternative grounds for termination, as well as the broad-form submission of the controlling issue, i.e., whether the parent-child relationship should be terminated. Id.

Similarly, this Court has held that it is not necessary for the trial court to submit separate questions in parental termination cases. See In re J.M.C.A., 31 S.W.3d 692, 699 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Thus, we hold that the trial court properly submitted the controlling issues in this case through its broad-form submission.² Accordingly, we overrule points of error seven through 10.

Termination Order--Criminal Contempt?

In five related points of error, appellants argue that the order of termination was essentially an order of criminal contempt, and that they were not afforded the protections provided for contemnors accused of violating court orders. Specifically, appellants complain of the third ground for termination submitted to the jury, which provided:

[Appellants] failed to comply with the provisions of a court order³ that specifically established the actions necessary for the parent to obtain the return of [the child] who has been in the permanent or temporary managing conservatorship of [the Department] for not less than nine months as a result of [the child's] removal from the parent under Chapter 262 for the abuse or neglect of [the child] . . . .

Appellants argue that this ground is nothing more than an action for criminal contempt, and that they should have been given the protections afforded a criminal contemnee, such as using the "proof beyond a reasonable doubt" standard versus the "clear and convincing" standard used in termination proceedings. Appellants also contend that punishing an act of criminal contempt by terminating one's parental rights constitutes cruel and unusual punishment.

We begin by noting that the challenged ground for termination, i.e., violation of a court order that specifies the actions necessary for the parent to obtain the return of the child, is specifically provided for in the termination statute. See Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2001). Appellants do not challenge the constitutionality of section 161.001(1)(O). Instead, they seem to argue that violation of a court order can only be an act of criminal contempt, and, therefore, they are entitled to all the protections afforded a person being held in contempt of court.

We disagree. Violation of the trial court's temporary orders in this case may be a ground for criminal contempt, but it is also a ground for termination of appellants' parental rights. The fact is, appellants were not held in contempt of court, and their parental rights were not terminated as a punishment for refusing to comply with the court's order. "[T]he termination of parental rights is remedial in nature and relates to the State's interest in protecting abused and neglected children, not punishment of the parent." Ex parte Cantu, 913 S.W.2d 701, 706 (Tex. App.--San Antonio 1995, pet. ref'd).

The trial court, in its temporary orders, determined that to obtain the return of their children, appellants should...