Rodarte v. Cox

• Court: Texas Court of Appeals
• Writing for the Court: BILL BASS
• Citation: Rodarte v. Cox, 828 S.W.2d 65 (Tex. App. 1991)
• Decision Date: 13 December 1991
• Docket Number: No. 12-88-00067-CV,12-88-00067-CV
• Parties: Pablo RODARTE, a/k/a Anthony Trevino and Rosa Trevino, Appellants, v. Elton COX and Wife, Betty Cox, Appellees.

Page 65

828 S.W.2d 65

Pablo RODARTE, a/k/a Anthony Trevino and Rosa Trevino, Appellants, v. Elton COX and Wife, Betty Cox, Appellees.

No. 12-88-00067-CV.

Court of Appeals of Texas Tyler.

Dec. 13, 1991.

Rehearing Denied April 27, 1992.

Robert E. Norris, Elizabeth Brice, Nacogdoches, for appellants.

Tom P. Senff, Tom D. Rorie, Nacogdoches, for appellees.

BILL BASS, Justice.

This is an appeal from a judgment terminating the parental rights of Pablo Rodarte a/k/a Anthony Trevino, and Rosa Trevino in relation to their daughter, Jessica Trevino. We affirm the judgment.

When Jessica was four weeks old, she became sick and her mother, Rosa Trevino, took her to Dr. Barry Roberts. Dr. Roberts noted that Jessica had diarrhea, diaper rash and "failure to thrive, probably on the basis of inadequate caloric intake." Dr. Roberts ordered the child hospitalized and notified the Texas Department of Human Services (hereinafter "TDHS") of what he considered probable parental neglect. Initially, Jessica gained weight in the hospital, but on the fifth day of her stay, tests revealed a staphylococcus infection of the urinary tract. She remained acutely ill for five more days. At her discharge from the hospital on June 30, 1984, Dr. Roberts included in his discharge summary, "apparent emotional deprivation."

Following the initial diagnosis of failure to thrive, TDHS opened a case file on Jessica. On July 13, a TDHS worker purchased more formula for Jessica and gave it to her mother. The case worker returned four days later to find that Rosa Trevino had stopped giving the formula to the baby because she was spitting it up. Together, they took the baby back to Dr. Roberts, whose initial diagnosis upon Jessica's second admission to the hospital was failure to thrive due to inadequate caloric intake, emotional deprivation and recurrent diarrhea of undetermined cause. Laboratory tests disclosed that Jessica had viral meningitis, which Dr. Roberts stated was epidemic in the community at that time. At the time of Jessica's discharge, the final diagnosis was milk and soy gastrointestinal allergy, failure to thrive due to improper feeding, and viral meningitis on admission. Dr. Roberts concluded, based upon his observations during both of Jessica's hospitalizations, that Rosa Trevino was "incompetent" to care for Jessica.

At the beginning of Jessica's second hospital stay, TDHS obtained an exparte order appointing the agency as her temporary managing conservator upon allegation of immediate danger to the child if she was left with the appellants. Appellee, Betty Cox, was placed in charge of Jessica as foster parent on July 18, 1984 during her second hospitalization. The Coxes were licensed foster parents under contract to TDHS. They began to actively care for Jessica while she was still in the hospital. Betty Cox visited Jessica several times a day while she was in the hospital. She saw Rosa Trevino once during Jessica's second hospital stay. She never saw Pablo Rodarte.

Jessica went home from the hospital with the Coxes on August 1, 1984 for what was thought at the time to be a routine period of foster care. Jessica lived with the Coxes continuously until March 2, 1987. The Coxes visited the appellants and took Jessica to see them but she grew up knowing the Coxes as her "momma" and "daddy."

During this time, TDHS continued to monitor the home of the appellants. The appellants were never ceremonially married, and Pablo Rodarte apparently had a wife in Mexico. The appellants' four other children were also placed in foster care. TDHS representatives indicated to the Coxes that it was unlikely that the appellants' home would ever be secure and stable enough to justify Jessica's placement with her natural parents. It is undisputed that Jessica was safe, well cared for and loved in the Coxes' home.

In late 1986, TDHS embarked upon a plan to place Jessica with the appellants in April of 1987. TDHS initiated intensive counseling and support services for the appellants. The Coxes intervened on February 18, 1987, seeking termination of the appellants' parental rights and Jessica's adoption. A few days later, the attorney for Pablo Rodarte wrote the TDHS threatening suit if TDHS did not return Jessica to his client immediately. On the night of March 2, TDHS took the child from the Coxes home, ostensibly for a previously scheduled overnight visit with the appellants. TDHS notified the Coxes the next day that Jessica would not be returned to them and that her placement with the appellants was permanent.

Jessica's weight dropped and her emotional condition deteriorated markedly following her sudden restoration to the appellants. TDHS provided extraordinarily intensive counseling and other support services to the appellants in the ensuing months. The evidence is conflicting regarding the lack of nurturing, hygiene, medical care, supervision and training provided by the appellants. The appellants' household was described by some witnesses as the most squalid of ninety-six apartments. Other witnesses described it as ordinary. After six months, TDHS determined that Jessica had satisfactorily adapted to the appellants and filed its motion for non-suit. The trial court granted the TDHS motion on August 7, 1987, effectively removing TDHS as temporary managing conservator and returning conservatorship to the appellants.

The appellants moved to strike the Coxes' intervention. The motion was denied by the trial court. After a trial by jury on the issue of termination alone, the jury found that both Rosa Trevino and Pablo Rodarte had engaged in conduct which endangered the child and that it would be in the best interest of the child to terminate the appellants' parental rights. The trial court rendered judgment based on the jury's verdict terminating the appellants' parental rights. Following the rendition of judgment, the trial court issued temporary orders for the pendency of the appeal naming the TDHS temporary managing conservator, and directing Jessica's placement with the Coxes with the appellants to have visitation rights subject to TDHS supervision.

In their first two points of error, the appellants maintain that the trial court erred in failing to strike the Coxes' plea in intervention for termination of parental rights and adoption, because the Coxes lacked standing to bring suit, had no justiciable interest, were bound by the issues pleaded by the original parties, raised new and complicated issues which confused the pending action which was near resolution, and were estopped by their relationship to TDHS from asserting right to intervene.

TEX.FAM.CODE ANN. § 11.03(d)(4) (Vernon 1975) ¹ provides as follows:

(d) An original suit affecting the parent-child relationship seeking only an adoption, or for termination of the parent-child relationship joined with a petition for adoption, may be brought by:

(4) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.

The appellants argue that foster parents who have contracted with TDHS for the care of the child are acting as the temporary agents of TDHS. Although the appellants acknowledge that the Coxes had possession of Jessica for all of but two months of the first two and one-half years of her life preceding the Coxes' intervention, the appellants stress that the foster care contract reserves the "control" of the child in TDHS. ² Therefore, in the appellants' view, the Coxes status as mere agents of TDHS can give them no independent standing, for without control of the child, they cannot satisfy the statutory requirement of "substantial past contact with the child sufficient to warrant standing."

Other subsections of 11.03 require "possession and control" of a child in order to bring suit affecting the parent-child relationship. However, section 11.03(d)(4) requires only that the petitioner be an adult whom the judge determines "to have had sufficient past contact with the child to warrant standing to do so." We do not agree with the appellants that "substantial contact" necessarily requires control. If the legislature had intended control as requisite to significant contact, it could easily have used the word control in this subsection as it did in other subsections of 11.03. The law transfers the managing conservatorship to TDHS. But the day to day supervision of the child and her activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parents. We believe the legislature intended to give the trial judge the flexibility to deal with those inevitable situations which could not be otherwise anticipated by the drafters. By any definition, the Coxes had "substantial past contact" with Jessica. They had been the child's only parents for the two and one-half years since she was two months old. They were the only mother and father she had known.

The appellants rely on Mendez v. Brewer, 626 S.W.2d 498 (Tex.1982), in which the Supreme Court held that foster parents had no justiciable interest to intervene in termination suit brought by TDHS. The Mendez court also approved the trial court's refusal to consolidate the foster parents termination suit with that brought by TDHS. The court stated, "[a]ssuming, without deciding, that the foster parents had standing to file such an action, the trial court did not abuse its discretion in refusing to consolidate their suit with the termination proceeding filed by the Department." Mendez, 626 S.W.2d at 500. However, Mendez has been deprived of its precedential value. Whatever uncertainty existed when Mendez was decided, the Legislature eliminated by its subsequent amendment to section 11.03 specifically providing for the trial judge to determine that one with substantial past contact with a child has standing to bring such a suit. The Coxes had a justiciable interest in the subject matter of the suit. The trial...