In re Interest of S.A.B.

IN THE INTEREST OF S.A.B. AND B.M.B., CHILDREN

No. 05-20-00272-CV

Court of Appeals Fifth District of Texas at Dallas

August 21, 2020

On Appeal from the 416th Judicial District Court Collin County, Texas

Trial Court Cause No. 416-54998-2014

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Molberg, and Justice Carlyle

Opinion by Justice Carlyle

Father, proceeding pro se, appeals the trial court's order terminating his parental rights to his two children with Mother. Father challenges the sufficiency of the evidence and asserts errors regarding pretrial and trial proceedings. We affirm in this memorandum opinion.¹ See TEX. R. APP. P. 47.4.

Father and Mother divorced in 2015. Their daughter and son, S.A.B. and B.M.B., were ages five and four at that time. The divorce decree appointed Father and Mother as joint managing conservators and gave Mother the right to establish the children's primary residence and receive child support.

In 2019, appellees—Mother and her husband, Stepfather—filed a "Petition to Terminate Parent-Child Relationship or in the Alternative to Modify Parent-Child Relationship." They sought to terminate Father's parental rights to both children on the grounds that termination is in the children's best interest and Father has "been convicted or placed on community supervision . . . for being criminally responsible for the death or serious injury of a child" under penal code section 22.011; "knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date this petition is filed"; and "voluntarily left the children alone or in the possession of another without providing adequate support of the children and remained away for a period of at least six months." Father filed a pro se² general denial answer and several pretrial motions, including a January 14, 2020 motion for continuance in which he stated he "has experienced a significant delay in his receipt of documents related to this case."

On January 27, 2020, the trial court held a pretrial hearing on Father's motion for continuance. Father appeared pro se by telephone. He stated he needed the continuance because he had not received "additional evidence" he believed appellees had "presented to the Court." The trial court stated it had received no such evidence and denied the motion for continuance. Trial immediately followed.

Mother testified that in August 2019, Father was convicted and sentenced to ten years in prison for "the second degree felony of sexual assault of a child." Appellees offered into evidence without objection two 2019 final judgments showing Father pleaded guilty to charges of "sexual assault of a child under 17 years of age" based on incidents not involving S.A.B. or B.M.B. Mother testified that on the date of one of those offenses, December 23, 2016, she was out of state and, "to the best of [her] knowledge," Father "had possession" of the children. She also stated that additional charges against Father for possession of child pornography, sexual assault of a child, and sex trafficking are pending in several Texas counties. Although the children know Father is in prison, Mother has "thus far been able to protect the children from the details of [Father's] situation."

Mother testified termination is in the best interest of the children because (1) the children need a "present, loving, and supportive father figure on a full-time basis"; (2) Father did not "provide that for them" prior to his incarceration and is not currently meeting their physical or emotional needs; (3) Stepfather provides for the children's physical and emotional needs and wants to adopt the children; (4) Fatherdid not follow the possession schedule in the divorce decree prior to his incarceration and when Mother could not accommodate his requests to change the schedule he would "get angry," "use profanities," "verbally abuse" Mother, and "threaten to hurt the children mentally or emotionally in order to get back at [Mother]"; (5) she does not believe Father "will be able to effectively co-parent" the children after his release from prison because he "emotionally and verbally" abuses her and Stepfather, "will continue to initiate litigation against us," and told her in a text message that he will never recognize Stepfather as a non-parent joint managing conservator; (6) Father's behaviors indicate he "puts his needs above anybody else's needs," including those of his "child victims" and his own children; (7) she worries "about [S.A.B.] as a teen and her friends being around a convicted child sexual predator"; and (8) she believes that the "emotional harm" the children will experience when they learn the details of Father's crimes is "going to be compounded if [Father] still has the ability to inject himself into their lives."

Appellees introduced into evidence without objection several text messages from Father to Mother, including a 2017 exchange in which Father stated, "You can talk about my young Wendy's girls I don't mind." Mother responded, "I hope for the kids sake you look for a more stable age appropriate woman. It's your messed up life." Father's responding text message contained three laughing emojis and stated "ok and no I'm good now and for many many years in what I have going." In another 2017 text message, Mother told Father she would be unable to take S.A.B.to a planned activity as agreed because she had a conflict. Father replied, "I'll tell [S.A.B.] and this will upset her greatly nice job mom . . . I will tell her tonite and remind her how long you have known about it." In a 2016 text message, Father stated, "In case you don't realize or forget there is no situation ever until the kids are 18 that [Stepfather] would ever be alone with my kids."

Appellees also introduced into evidence an Instagram screen shot showing that on December 23, 2016, Father posted a holiday photograph of the children taken in his home. Father stated to the trial court "the date I post something on Instagram has nothing to do with the date I may have actually taken a picture" and "none of the allegations were at my home, nor were any allegations made that the children were in my presence." The trial court told him he would be able to "make all of those arguments when it's your turn." Then, Father objected to the Instagram post on the ground that he "can't verify that it's an accurate thing" because he currently has no access to his Instagram account. The trial court overruled that objection.

Additionally, appellees introduced into evidence numerous photographs of Stepfather and the children together, which had been "eServed" to Father several days earlier. Father told the trial court "those are the evidence and documents I was referring to that I knew I had received that I am not in physical possession of." Father then stated he had no objection to admitting those photographs into evidence.

On cross-examination, Mother testified the children "enjoy their time" with Father. She stated she has not given the children any of the twenty or more lettersFather has written to them from prison because she believes the letters "offer false hopes" to the children, "don't represent reality," and "are emotionally harmful to the kids at this time." She has "spoken to the children about the letters and told them things that I thought were appropriate in the letters." Also, Mother stated that her testimony regarding Father "initiat[ing] litigation against us" referred solely to motions Father has filed in this proceeding, which was initiated by her and Stepfather.

Stepfather testified he loves the children and believes it is in their best interest that Father's parental rights be terminated "to protect them from harm and danger and violation." On cross-examination, Stepfather stated, "I'm sure [the children] admire and adore [Father] as any father—any child would adore their parent." Father asked Stepfather whether the children had "communicated their desire to have a relationship with me." Appellees' counsel objected based on hearsay and the trial court sustained the objection.

Father testified "at no time did I put the children in any harm directly. I did engage in illegal activity. It was not in their presence." He stated that although he is not able to care for the children physically while he is in prison, he is "able to provide for their emotional needs through access." He argued that the family code establishes a presumption that a parent "is . . . a possessory conservator unless possession or access would endanger children." On cross-examination, Father testified that whenhe becomes eligible for parole in 2023, S.A.B. will be fourteen, which was the age of his "youngest victim."

During closing, the children's amicus attorney argued that terminating Father's parental rights is in the children's best interest because he has "engaged in an absolute pattern of conduct that has caused emotional harm to his children" and "subjected his children to a life of uncertainty in having to figure out how to address this emotionally."

The trial court signed a termination order stating it found by clear and convincing evidence that termination was in the children's best interest and Father had engaged in conduct that endangers the physical or emotional well-being of the children, been convicted for being criminally responsible for the death or serious injury of a child under penal code section 22.011, and knowingly engaged in criminal conduct that resulted in his conviction, imprisonment, and inability to care for the children for not less than two years from the date the petition was filed. The trial court appointed Mother and Stepfather as joint managing conservators.

Under Texas Family Code section 161.001, a trial court may terminate a parent's rights to a child if the court finds by clear and convincing evidence that termination is in the child's...