J. R. v. Tex. Dep't of Family & Protective Servs.
| Decision Date | 30 July 2015 |
| Docket Number | NO. 03-15-00108-CV,03-15-00108-CV |
| Parties | J. R. and L. R., Appellants v. Texas Department of Family and Protective Services, Appellee |
| Court | Texas Court of Appeals |
NO. C2013-1122B, HONORABLE DIB WALDRIP, JUDGE PRESIDING
Appellants, J.R. ("Joey") and L.R. ("Lena"), appeal from the trial court's order finding that termination of their parental rights was in the best interest of their children, M.R. ("Michael") and R.R. ("Rachel").1 In his sole issue on appeal, Joey challenges the performance of the children's attorney ad litem. See Tex. Fam. Code § 107.004. In her sole issue on appeal, Lena challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of her parental rights was in the children's best interest. See id. § 161.001(2). For the reasons that follow, we will affirm the trial court's decision.
BACKGROUND
The Department's involvement with Joey and Lena that led to its bringing suit to terminate their parental rights began in May 2013. The Department's investigator testified that the Department received a referral of neglectful supervision, which alleged "drug use and domestic violence between the parents." The Department created a safety plan at that time that prohibited Lena from any unsupervised contact with Michael and Rachel. The plan prohibited Joey from supervising Lena's conduct because of the domestic-violence allegations. Lena could not be located at the time, however, so between May 2013 and the end of July 2013, the Department was not able to offer her family-based safety services, which the Department does in an effort to avoid legal intervention.
Although the Department sought to offer Lena services once she was located at the end of July, the case escalated after "a serious incident" of domestic violence on August 26 between Lena and Joey, which also raised concerns about ongoing methamphetamine use by one or both of them. The police officer who responded to the incident testified that he was dispatched to assist in a disturbance call in which a male EMS was called because Joey was having difficulty breathing and appeared disoriented, which the officer believed was a result of the pepper spray. When the Department's investigator arrived at the home, Joey was at the hospital and the children were at a neighbor's house. The investigator spoke with Lena, who was still in the home. The investigator testified that Lena "had extreme difficulty following the conversation" and exhibited "very bizarre behavior," including "very jerky movements and rapid speech" followed bya rapid change to silence and inability to follow what the investigator was saying, all of which in the investigator's experience is "very indicative of being under the influence of methamphetamines." In addition, she observed several small plastic bags with residue in Lena's car. Although Lena denied to the investigator that she had been using drugs and refused to participate in a drug test, she admitted to the investigator that she had people who provided methampetamines to her.
The Department's investigator immediately put a safety plan in place with Lena that required Lena to leave the home and not have any contact with the children. The investigator communicated this plan to Joey, who was being treated in the hospital, and Joey agreed with the plan. The next day, however, the Department removed the children based on the investigator's concerns that Joey was unable to be protective of the children. Joey had allowed Lena back in the house the night before, and Lena had threatened him. Joey also appeared to be under the influence of methamphetamines when the investigator arrived in the home, and the investigator testified that Joey had a shotgun on the floor in the living room accessible to a child of any age. The Department was granted temporary managing conservatorship of the children in August 2013.
The Department put court-ordered family-services plans in place for Joey and Lena to help them resolve their issues so that their family could be reunited. Over time, however, it became clear that reunification was unlikely due to both parents' failure to make progress on fulfilling the requirements of their plans. Accordingly, the Department brought suit to terminate their parental rights to Michael and Rachel. Michael was fifteen years old and Rachel was five years old at the time of trial in January 2015.
There was an eight-day jury trial. In addition to evidence about the family's past history with the Department resulting from domestic violence and substance-abuse issues and about Joey's and Lena's efforts to accomplish the goals on their family-service plans, which we discuss in more detail below as it is relevant to Joey's and Lena's issues on appeal, the jury heard evidence related to the children's placements and progress made since the Department removed them. The family's caseworker also testified about the Department's post-termination plans for the children. The Department planned for Michael to be adopted by Joey's father, Joey Sr., whom the Department believed would be better able to protect Michael from Lena and Joey as Michael's legal parent. The Department planned for Rachel to be adopted by the foster parents with whom she had been placed since February 2014.
The jury returned a unanimous verdict that Joey's and Lena's parental rights should be terminated as to Michael and Rachel, that the Department should be appointed managing conservator of both children, and that no possessory conservators should be appointed. The trial court ordered termination of Joey's parental rights based on the jury's finding by clear and convincing evidence that termination was in the children's best interest and that Joey had committed the following statutory grounds for termination: (1) he knowingly placed or allowed the children to remain in conditions or surroundings that endanger the children's physical or emotional well-being, (2) he engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers the children's physical or emotional well-being, and (3) he failed to comply with provisions of a court order that specifically established actions necessary for him to obtain return of the children. See Tex. Fam. Code § 161.001(1)(D), (E), (O), (2). The trial court ordered terminationof Lena's parental rights based on the jury's finding by clear and convincing evidence that termination was in the children's best interest and that Lena had committed the following statutory grounds for termination: (1) she knowingly placed or allowed the children to remain in conditions or surroundings that endanger the children's physical or emotional well-being, (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers the children's physical or emotional well-being, (3) she failed to comply with provisions of a court order that specifically established the actions necessary for her to obtain return of the children, and (4) she used a controlled substance in a manner that endangered the children's health or safety and either failed to complete a court-ordered substance-abuse treatment program or continued abusing a controlled substance after completion of a court-ordered substance-abuse treatment program. See id. § 161.001(1)(D), (E), (O), (P), 2. This appeal followed.
ANALYSIS
On appeal, Joey asserts only that the performance of the children's attorney ad litem was deficient. See id. § 107.004. Lena challenges only the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of her parental rights was in the children's best interest. See id. § 161.001(2). We address each party's issue in turn.
Performance of the children's attorney ad litem
Joey argues on appeal that the failure of the attorney ad litem during closing argument to advocate Michael's expressed desire to live with Joey was a breach of the ad litem's duty under Section 107.004 of the Texas Family Code and effectively deprived Joey of his rights to due processand equal protection. See id. § 107.004 (). In response, the Department asserts that Joey lacks standing to complain about the children's attorney's allegedly deficient performance. Moreover, because Joey does not challenge the sufficiency of the evidence supporting the jury's findings, the Department asserts that any prejudice from the attorney's closing argument could not have had an impact on the ultimate outcome of the case because the evidence was sufficient to support the jury's predicate-ground and best-interest findings. We agree.
A party "may not complain of errors that do not injuriously affect it or that merely affect the rights of others." Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). Courts, including this Court, have applied this rule in parental-termination cases and have held that a parent does not have standing to complain about alleged deficiencies in the representation of his children or his spouse. See, e.g., A.E. v. Texas Dep't of Family & Protective Servs., No. 03-14-00414-CV, 2014 WL 7458731, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.) ( that father lacked standing to complain about trial court's decision to proceed when children's attorney ad litem was not present at beginning of hearing); S.M.M. v. Texas Dep't of Family & Protective Servs., No. 03-12-00585-CV, 2013 WL 812088, at *3 n.5 (Tex. App.—Austin Feb. 26, 2013, no pet.) (mem. op.) ( that mother in parental-termination case lacked standing to complain about trial...
To continue reading
Request your trial