N. T. v. Tex. Dep't of Family & Protective Servs.
| Decision Date | 29 November 2017 |
| Docket Number | NO. 03-17-00573-CV,03-17-00573-CV |
| Parties | N. T., Appellant v. Texas Department of Family and Protective Services, Appellee |
| Court | Texas Court of Appeals |
NO. C2016-0188C, HONORABLE GARY STEEL, JUDGE PRESIDING
N.T. appeals the trial court's order terminating his parental rights to his children following a bench trial.1 N.T. contends that the trial court violated his constitutional due process rights by entering a judgment terminating his parental rights without first acquiring personal jurisdiction over him, without providing him notice of the trial setting, and without appointing him an attorney. For the reasons that follow, we affirm the trial court's order terminating N.T.'s parental rights.
BACKGROUND
In January 2016, the Texas Department of Family and Protective Services (the Department) received a referral alleging neglectful supervision of their children by N.T. and thechildren's mother, stemming from a domestic violence incident between N.T. and the mother. On February 9, 2016, the Department filed a petition seeking termination of the parents' rights. In the petition, the Department requested service on N.T. and the children's mother at the family's home address. The Department was appointed emergency temporary managing conservator of the children, and after one extension, the initial adversary hearing was held on March 8, 2016, at which the Department was appointed temporary managing conservator. In the temporary order following the March 8 hearing the trial court noted that N.T. "was not notified and did not appear" but ordered that N.T. was to comply with the service plan presented by the Department and was to have no visitation with the children until further order of the court. On March 14, 2016, the Department filed a status report in which it listed N.T. as a person "entitled to notice of the hearing," listed only a post office box address for N.T., left blank the spaces by N.T.'s name for "Date of Service" and "Method Service" in the section entitled "Service of Process," and stated that N.T. was "aware of the Department's involvement at this time, but through the Department only and not via citation."
The record reflects that on March 16, 2016, N.T. was personally served with citation and with notice of the status hearing set for March 29, 2016. Following the hearing on March 29, which N.T. did not attend, the trial court signed a status hearing order in which it found that N.T. "although duly and properly notified, did not appear and wholly made default." The trial court also found that N.T. had not reviewed or signed the Department's service plan for him but ordered him to comply with the plan and submit the Child Placement Resources Form to the Department. On April 5, 2016, the trial court ordered that the children were to be placed with the mother and that N.T. was to have no contact with the children until he appeared in court. In June 2016, theDepartment filed a status report that again listed N.T. as a person "entitled to notice of the hearing," listed only a post office box address for N.T., left blank the spaces by N.T.'s name for "Date of Service" and "Method Service" in the section entitled "Service of Process," and stated that N.T. was "aware of the Department's involvement at this time, but through the Department only and not via citation." In addition, the Department reported that N.T.'s "whereabouts are unknown at this time." On July 19, following a permanency hearing, the trial court signed an order finding that N.T. "although duly and properly notified, did not appear and wholly made default" and that N.T. had not complied with his service plan. The order placed the children with the mother and provided that visitation with N.T. must be supervised.
In September 2016, the Department filed a status report that again listed N.T. as a person "entitled to notice of the hearing," listed only a post office box address for N.T., left blank the spaces by N.T.'s name for "Date of Service" and "Method Service" in the section entitled "Service of Process," stated that N.T. was "aware of the Department's involvement at this time, but through the Department only and not via citation," and reported that N.T.'s "whereabouts are unknown at this time." The status report also stated that there had been no contact between N.T. and the caseworker. In November 2016, following a permanency hearing, the trial court signed an order finding that N.T. "was not notified, and did not appear" and that N.T. had not complied with his service plan. The order continued placement of the children with the mother and provided that visitation with N.T. must be supervised.
The next permanency hearing took place on January 31, 2017. At the hearing, the Department and the mother agreed that an extension of the case dismissal date was needed to allowfor a final determination as to placement of the children but also agreed to proceed with termination of N.T.'s parental rights.2 N.T. did not appear at the trial and was not represented by counsel. The Department called three witnesses. A Comal County Sheriff's Deputy testified concerning the alleged incident of domestic violence between N.T. and the mother in January 2016. The deputy stated that the mother had injuries consistent with her allegations, that N.T. had left in a car with the children, that the mother reported that N.T. had just gotten out of jail "for another domestic incident that happened," and that no charges were filed against the mother. The Department investigator testified that she had never met N.T. but had spoken with him by phone once and that he stated that he was not going to cooperate. She also stated that she reviewed N.T.'s criminal history "that's run through DPS in [the Department] system" and it corroborated the mother's statements that there had been prior incidents of domestic violence.
The Department caseworker testified that she had made contact with N.T. once during an unannounced visit. She explained that during the unannounced visit, N.T. was with his daughter, that at the time there was a court order prohibiting visitation, that she knew that he had "a warrant a couple of months ago in regards to domestic violence with [the mother]," and that when she asked for the mother and called 911, he left. The caseworker also testified that she attempted to contact N.T. every month through Facebook and the phone numbers she had, "asked parents" and "everyoneunder the moon for contact information," and tried to obtain an address or "SID number" from the Bexar County Jail. She stated that "as far as [she] kn[e]w," N.T. had notice of the case. The caseworker further testified that N.T. had not complied with any provisions of the service plan, had not visited with the children, and had not denied that he was the father of the children. She stated that she believed it was in the best interests of the children to terminate N.T.'s parental rights because he had multiple arrests for domestic violence, "did not comply," and had done nothing to alleviate any of the concerns that led to removal of the children and because she did not believe he could meet the physical or emotional needs of the children. She also stated that it concerned her that he had never appeared in court. No other witnesses were called and no exhibits were introduced into evidence.
Following the hearing, the trial court rendered an interlocutory order terminating N.T.'s rights, in which it found by clear and convincing evidence that N.T. was the acknowledged father of the children, stated that N.T. "although duly and properly notified, did not appear and wholly made default," and found that "all persons entitled to citation were properly cited or filed a duly executed waiver of citation herein." The trial court terminated N.T.'s parental rights pursuant to Texas Family Code Sections 161.001(b)(1)(D) and (E) (endangerment grounds); (N) (constructive abandonment); and (O) (failure to complete court ordered services). The trial court also found the termination to be in the best interests of the children.
In February 2017, N.T., acting pro se, filed a notice of appeal (Prior Appeal) and an affidavit of inability to pay costs, stating that he was incarcerated and unable to pay any filing fees. This Court abated the Prior Appeal and remanded the case to the trial court to determine if N.T. wasindigent and whether an attorney ad litem should be appointed to represent him. See N. K. T. v. Texas Dep't of Family & Protective Servs., No. 03-17-00133-CV, 2017 Tex. App. LEXIS 3467, at *1 (Tex. App.—Austin Apr. 20, 2017, no pet.) (mem. op.) (per curiam). This Court also questioned our jurisdiction because N.T.'s notice of appeal appeared to be premature and gave N.T. 30 days to take action to cure the jurisdictional defect and supplement the clerk's record with a final order. See id. at *2 n.1. On remand, in April 2017, the trial court appointed an attorney ad litem to represent N.T. "for the purpose of appeal." In May 2017, N.T.'s appointed counsel filed a response to this Court's order requesting that we continue the abatement until the date of the trial setting below or dismiss the Prior Appeal. See N. K. T. v. Texas Dep't of Family & Protective Servs., No. 03-17-00133-CV, 2017 Tex. App. LEXIS 4284, at *1 (Tex. App.—Austin May 11, 2017, no pet.) (mem. op.). This Court reinstated and then dismissed the Prior Appeal for want of jurisdiction. See id. at *2.
In the trial court, the proceedings continued as to the mother's parental rights and permanent placement of the children. In March, in a permanency hearing order, the trial court found that the "Acknowledged Father" N.T. "although duly and properly notified, did not appear and wholly made default," that N.T.'s parental rights had been terminated via interlocutory order, and that he was to have no visitation with the children. Later in March, the...
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