In re Interest of M.V.G.

440 S.W.3d 54

In the Interest of M.V.G., a Child.

No. 10–09–00054–CV.

Court of Appeals of Texas, Waco.

March 3, 2010.

Joseph L. Sheppard, Burleson, Richard Alley, Fort Worth, for Appellant.

Bill Moore, County Atty., David A. Barkley, Whitney M. Clotfelter, Angela Allen, Asst. County Attys., Cleburne, for Appellee.

Toni D. Driver, Burleson, for Real Party in Interest.

Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

OPINION

FELIPE REYNA, Justice.

The mother and father of the child the subject of this suit have each perfected an appeal from the order terminating their parental rights. The mother contends in her sole issue that the evidence is legally and factually insufficient to support any of the predicate grounds for termination or the court's finding that termination is in the best interest of the child. The father contends in five points that: (1) the court erred by denying his request for a jury trial; (2) the court erred by rendering a default judgment against him; (3) the evidence is insufficient to support the termination order; (4) this appeal is not frivolous; and (5) section 263.405 of the Family Code is unconstitutional. We will affirm.

BACKGROUND

The mother “Patricia”¹ gave birth to M.V.G. in a Galveston hospital while she was incarcerated for a state jail felony. The father “Joel” lived in Cleburne. The day after M.V.G.'s birth, Patricia gave Joel's contact information to CPS caseworker Linda Lawrence and told her that he was making arrangements for M.V.G. to live with him. Two days later, CPS supervisor Marty Samaniego talked to Joel and tried to arrange a meeting. Joel said that he could not talk at the moment because of work, so Samaniego advised him that the Department was taking emergency custody of M.V.G. and there would be an emergency removal hearing. Joel told Samaniego that Patricia and he wanted custody of M.V.G. and planned to move to Puerto Rico where his family lives.

During the next eleven months, the usual hearings were conducted. The Department essentially did not provide services to Patricia for eleven months because of her incarceration. She was released from custody just over ten months after M.V.G.'s birth and returned to Cleburne. The court extended the statutory dismissal date for ninety days. Patricia visited M.V.G. about fourteen times after her release, but she never completed any of the tasks required by the family service plan. At the last hearing before trial, Patricia testified about various difficulties in obtaining these services.

For his part, Joel visited M.V.G. regularly during the first eight months of the Department's involvement but never completed any of the required tasks. He disagreed with the Department's efforts to pursue drug screening by a hair follicle test, stating his preference for urinalysis. He filed a motion for visitation which the court heard shortly after M.V.G.'s first birthday. The court denied the motion after Joel informed the court that he would not submit to the hair follicle test.

Joel did not appear for trial. Patricia announced that she was waiving her right to jury trial. The court ruled that Joel waived his right to jury trial under Rule of Civil Procedure 220 by failing to appear. See Tex.R. Civ. P. 220. The court also pronounced its rendition of “a post answer default judgment” against him. At the conclusion of a three-day bench trial, the court rendered judgment terminating Patricia's parental rights. The court signed its Order of Termination almost three weeks later.

PATRICIA'S APPEAL

In her sole issue, Patricia contends that the evidence is legally and factually insufficient to support any of the predicate grounds for termination or the finding that termination is in the best interest of the child.

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.

In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002) ; In re T.N.F., 205 S.W.3d 625, 630 (Tex.App.-Waco 2006, pet. denied).

In conducting a factual sufficiency review, “a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.” Id.

[T]he inquiry must be “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.” A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.

J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.2002) ) (footnotes omitted); T.N.F., 205 S.W.3d at 630.

CPS alleged and the trial court found four predicate grounds for termination, namely, that Patricia: (1) knowingly placed or allowed M.V.G. to remain in dangerous conditions or surroundings; (2) engaged in conduct or knowingly placed M.V.G. with persons who engaged in conduct which endangered her; (3) constructively abandoned M.V.G.; and (4) failed to comply with a court order that established the actions necessary for the return of M.V.G. See Tex. Fam.Code Ann. § 161.001(1)(D), (E), (N), (O) (Vernon Supp.2009). We may affirm if the evidence is sufficient with respect to any one of these predicate grounds. T.N.F., 205 S.W.3d at 629.

Constructive Abandonment

A parent constructively abandons a child when (1) the child has been in the permanent or temporary managing conservatorship of the State or an authorized agency for not less than six months, (2) the State or the authorized agency has made reasonable efforts to return the child to the parent, (3) the parent has not regularly visited or maintained significant contact with the child, and (4) the parent has demonstrated an inability to provide the child with a safe environment.

In re M.R.J.M., 280 S.W.3d 494, 505 (Tex.App.-Fort Worth 2009, no pet.) ; accord Earvin v. Dep't of Family & Protective Servs., 229 S.W.3d 345, 348 (Tex.App.-Houston [1st Dist.] 2007, no pet.) ; see Tex. Fam.Code Ann. § 161.001(1)(N).

(1) Purposeful Abandonment

With regard to the first element, Patricia concedes that M.V.G. was in foster care for at least six months but disputes that M.V.G. was in foster care because of any purposeful abandonment on Patricia's part. See Earvin, 229 S.W.3d at 349 (no evidence parent “purposefully had little interaction with S.M.E.”). Patricia refers to evidence that Joel and she planned for him to get M.V.G. from the hospital and take her to Puerto Rico where they would live with their extended family. Patricia argues that they never had a chance to carry out their plans because the Department did not contact Joel before removing M.V.G. even though she had given his contact information to CPS caseworker Lawrence at the hospital. CPS investigator Tina Herrera confirmed in her testimony that she did not contact Joel until after taking custody of M.V.G. However, she arranged for Joel to visit M.V.G. a few days after she was brought to Cleburne.

Joel attended the emergency removal hearing the next day. He told the court of his plans to leave for Puerto Rico thirteen days later and asked if he could take M.V.G. with him if he had a “clean” drug test. The court advised that another hearing would need to be held and, if Joel had “some clean drug tests,” then the court would consider his request. Joel did not take a drug test and left for Puerto Rico. He did not appear in court again until six months later. He submitted to only one drug test (by oral swab) during the fourteen months the case was pending, refused to submit to urinalysis or hair follicle drug tests ordered by the court, and wholly failed to comply with his service plan.

Imprisonment, standing alone, does not constitute constructive abandonment. In re D.T., 34 S.W.3d 625, 633 (Tex.App.-Fort Worth 2000, pet. denied) ; see In re N.S.G., 235 S.W.3d 358, 367 (Tex.App.-Texarkana 2007, no pet.).

[But] it is simply a “cop-out” (in the vernacular of the 70's) for anyone to conclude that prison ipso facto prevents (or relieves) the parent from providing the child a safe environment. Again, the incarcerated parent may be able to work through surrogates, such as relatives, spouses, or friends, to fulfill that obligation. And, if he so arranges and those surrogates agree to the arrangement, it is hard to deny that the parent has taken steps to provide or effectively provided a safe environment. To suggest otherwise would be to suggest that military personnel cannot provide for their children because they may be assigned overseas to combat duty. In that situation, family is often available to step in and help. The same can be no less true when a parent is incarcerated.

In re D.S.A., 113 S.W.3d 567, 573–74 (Tex.App.-Amarillo 2003, no pet.).

Here, Patricia made arrangements for Joel to take custody of M.V.G. during her incarceration, but he failed to take the necessary actions to gain custody. Patricia also informed the Department that relatives in Puerto Rico might be able to care for M.V.G. However, CASA volunteer Gloria Johnson testified that she talked to one of those relatives and was convinced from...