Motion for Rehearing Overruled; Opinion =
of October=20
14, 2008 Withdrawn; Affirmed and Opinion on Rehearing filed=20
March 5, =
2009.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00161-CV
____________
IN THE=20
INTEREST OF S.N., S.M.N., AND D.A.N., CHILDREN
On Appeal from the =
314th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2005-10415J
O P I N I=20
O N O N R E H E A R I N G
We=20
overrule appellant=3Ds motion=20
for rehearing, vacate and withdraw our prior opinion and judgment =
dated=20
October 14, 2008, and issue this opinion on rehearing and judgment =
in=20
their place.
Appellant=20
David Allen Neuenschwander, Jr. appeals from the trial =
court=3Ds order=20
terminating his parental rights to his three children. In =
five=20
issues, he challenges (1) the legal and factual sufficiency of the =
evidence underlying the termination findings, (2) the legal and =
factual=20
sufficiency of the evidence supporting the trial court=3Ds findings=20
of fact related to his paternity, and (3) the constitutionality of =
section=20
263.405(i) of the Texas Family Code. In his sixth issue, he =
asserts=20
that if we reverse the trial court=3Ds=20
termination of his parental rights, we should also reverse the =
trial=20
court=3Ds=20
appointment of the Department of Family & Protective Services =
as sole=20
managing conservator. We affirm.
I. =20
FACTUAL AND PROCEDURAL BACKGROUND
On=20
November 25, 2005, DFPS received a referral alleging neglectful=20
supervision and physical neglect of S.N., S.M.N., and D.A.N. by =
their=20
mother, Angel Vidaure. When officers from the Baytown Police =
Department arrived at the home, they discovered that the children =
were=20
home alone and had been so for several hours. After waiting=20
forty-five minutes, during which time Vidaure did not return, the =
officers=20
took the children to the police department. Thereafter, DFPS =
took=20
the children into custody.
On=20
November 28, 2005, DFPS filed an Original Petition for Protection =
of a=20
Child, for Conservatorship, and for Termination in Suit Affecting =
the=20
Parent-Child Relationship. The children were subsequently =
placed=20
together in a foster home. At the time, the daughters, S.N. =
and=20
S.M.N, were eight years old and six years old, respectively, and =
the son,=20
D.A.N., was two years old.
At the=20
time DFPS took the children into custody, appellant was in jail =
serving a=20
seventy-five day sentence for driving with a suspended license for =
failure=20
to maintain liability insurance. He was released from jail =
on=20
December 8, 2005 after serving thirty-five days. On January =
9, 2006,=20
appellant attended a Permanency Plan Team meeting during which a =
DFPS case=20
worker reviewed appellant=3Ds family=20
service plan with him. On January 19, 2006, appellant signed =
the=20
plan which required, among other things, that he complete =
parenting=20
classes, participate in individual therapy, and obtain and =
maintain stable=20
employment or provide proof of disability. On January 19, =
2006, the=20
court signed additional temporary orders that reiterated the =
requirements=20
of the plan as well as ordered both appellant and Vidaure to =
complete all=20
services outlined in the family service =
plans.
A bench=20
trial was held on January 16, 2007. In the final termination =
order=20
signed on February 6, 2007, the trial court terminated =
Vidaure=3Ds parental=20
rights based on her voluntary affidavit of relinquishment. =
The court=20
terminated appellant=3Ds parental=20
rights based on Family Code section 161.001(1), subsection (N) for =
constructive abandonment and subsection (O) for failure to comply =
with the=20
court-ordered family service plan and found that termination was =
in the=20
children=3Ds best=20
interest. The decree established appellant=3Ds paternity to D.A.N. =
only. It also terminated the parental rights of the unknown =
fathers=20
of S.N. and S.M.N. based on Family Code section=20
161.002(B)(2)(a). =20
DFPS was appointed sole managing conservator of the three=20
children.
On=20
February 20, 2007, appellant filed a motion for new trial and =
statement of=20
appellate points. The following day, he filed a request for =
findings=20
of fact and conclusions of law. On February 23, 2007, =
appellant=20
filed his notice of appeal. On March 2, 2007, DFPS filed =
proposed=20
findings of fact and conclusions of law with the court. On =
March 13,=20
2007, the trial court denied appellant=3Ds motion=20
for new trial and issued findings of fact and conclusions of=20
law.
II. =20
STANDARD OF REVIEW
Involuntary=20
termination of parental rights is a serious matter implicating =
fundamental=20
constitutional rights. Holick v. Smith, 685 S.W.2d =
18, 20=20
(Tex. 1985). Due to the severity and permanency of the =
termination=20
of parental rights, the burden of proof at trial is heightened to =
the=20
clear and convincing standard. See Tex. Fam. Code Ann. =
' =
161.001=20
(Vernon Supp. 2008); In re J.F.C., 96 S.W.3d 256, 263 (Tex. =
2002).=20
AClear and=20
convincing evidence@ =
means=20
Athe=20
measure or degree of proof that will produce in the mind of the =
trier of=20
fact a firm belief or conviction as to the truth of the =
allegations sought=20
to be established.@ =20
Tex. Fam. Code Ann.=20
' =
101.007=20
(Vernon 2002); accord In re J.F.C., 96 S.W.3d at 264. =
This=20
heightened burden of proof results in a heightened standard of=20
review. In re S.M.L., 171 S.W.3d 472, 476 (Tex.=20
App.CHouston=20
[14th Dist.] 2005, no pet.).
When=20
determining legal sufficiency, we review Aall the=20
evidence in the light most favorable to the finding to determine =
whether a=20
reasonable trier of fact could have formed a firm belief or =
conviction=20
that its finding was true.@ =20
In re J.F.C., 96 S.W.3d at 266. To give appropriate =
deference=20
to the factfinder=3Ds=20
conclusions, we must assume that the factfinder resolved disputed =
facts in=20
favor of its finding if a reasonable factfinder could do so. =
Id.=20
We disregard all evidence that a reasonable factfinder could =
have=20
disbelieved or found to have been incredible. =
Id. =20
However, this does not mean that we must disregard all evidence =
that does=20
not support the finding. Because of the heightened standard, =
we must=20
also be mindful of any undisputed evidence contrary to the =
finding=20
and consider that evidence in our analysis. =
Id.
When=20
reviewing a factual sufficiency challenge under the clear and =
convincing=20
burden, the analysis is somewhat different in that we must =
consider all of=20
the evidence equally, both disputed and undisputed. See =
id. =20
We must consider whether the evidence is sufficient to produce =
in the=20
mind of the factfinder a firm belief or conviction as to the truth =
of the=20
allegation sought to be established. In re C.H., 89 =
S.W.3d=20
17, 26 (Tex. 2002). We consider whether disputed evidence is =
such=20
that a reasonable factfinder could not have resolved that disputed =
evidence in favor of its finding. J.F.C., 96 S.W.3d =
at=20
266. AIf, in=20
light of the entire record, the disputed evidence that a =
reasonable=20
factfinder could not have credited in favor of the finding is so=20
significant that a factfinder could not reasonably have formed a =
firm=20
belief or conviction, then the evidence is factually=20
insufficient.@ =20
Id.
In a=20
proceeding to terminate the parent-child relationship brought =
under=20
section 161.001 of the Texas Family Code, the petitioner must =
establish,=20
by clear and convincing evidence, one or more acts or omissions =
enumerated=20
under subsection (1) of 161.001 and that termination is in the =
best=20
interest of the child under subsection (2). Tex. Fam. Code Ann.=20
' =
161.001;=20
In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re =
U.P., 105=20
S.W.3d 222, 229 (Tex. App.CHouston=20
[14th Dist.] 2003, pet. denied).
III. =20
ANALYSIS
A. =20
Failure to Complete Family Service Plan
In his=20
fourth issue, appellant challenges the trial court=3Ds=20
termination of his parental rights because he contends the =
evidence is=20
legally and factually insufficient to support termination under =
Texas=20
Family Code section 161.001(1)(O). To terminate parental =
rights=20
based on 161.001(1)(O), a trial court must find by clear and =
convincing=20
evidence that the parent
failed to=20
comply with the provisions of a court order that specifically =
established=20
the actions necessary for the parent to obtain the return of the =
child who=20
has been in the permanent or temporary managing conservatorship of =
the=20
Department of Family and Protective Services for not less than =
nine months=20
as a result of the child=3Ds removal=20
from the parent under Chapter 262 for the abuse or neglect of the=20
child.
Here,=20
appellant does not dispute that the children were in the custody =
of DFPS=20
or that he did not comply with all of the requirements of the =
family=20
service plan. Instead, appellant argues that DFPS cannot =
meet its=20
burden of proof on the third element because the children were not =
removed=20
from him as the result of abuse or neglect on his part. He =
asserts=20
that the language, Aas a=20
result of the child=3Ds removal=20
from the parent under Chapter 262 for the abuse or neglect =
of the=20
child@ =
in=20
subsection (O) means that the parent who failed to comply with the =
court=20
order must be the same parent whose acts or omissions caused the =
child to=20
be removed and placed into DFPS=3Ds=20
care.
DFPS=20
counters that appellant=3Ds=20
interpretation of subsection (O) imposes a requirement that the =
statute=20
does not. It argues that appellant misreads the final phrase =
of=20
subsection (O) which Amerely=20
indicates that it is a situation involving a >child=3Ds removal=20
from the parent under Chapter 262 for the abuse or neglect of the=20
child.=3D@ =20
According to DFPS, if the legislature had intended to require =
specific=20
proof that the parent who failed to comply with a court order is =
the=20
parent whose abuse or neglect of the child warranted the =
child=3Ds removal,=20
it could easily have done so.
Statutory=20
interpretation is a legal matter subject to de novo review. =
Bragg=20
v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. =
2002). The=20
overriding goal of statutory interpretation is to determine the=20
legislature=3Ds=20
intent. Cont=3Dl Cas. Co.=20
v. Downs, 81=20
S.W.3d 803, 805 (Tex. 2002). To glean legislative intent, we =
look=20
first to the plain and common meaning of the words used by the=20
legislature. Argonaut Ins. Co. v. Baker, 87 S.W.3d =
526, 529=20
(Tex. 2002); see also Tex.=20
Gov=3Dt=20
Code Ann. ' =
311.011(a) (Vernon 2005). We begin with the plain language =
because=20
we assume that the legislature tried to say what it meant; =
therefore, its=20
words should be the surest guide to its intent. See =
Fitzgerald v.=20
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. =
1999);=20
Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 286 (Tex.=20
App.CHouston=20
[1st Dist.] 2004, pet. dism=3Dd). =20
It is a well-settled rule of statutory construction that every =
word of a=20
statute must be presumed to have been used for a purpose. =
Quick=20
v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998). =
Likewise,=20
every word excluded from a statute must also be presumed to have =
been=20
excluded for a purpose. Id. This rule =
complements=20
another general statutory construction principle that courts =
should not=20
insert words into a statute except to give effect to clear =
legislative=20
intent. Laidlaw Waste Sys., Inc. v. City of Wilmer, =
904=20
S.W.2d 656, 659 (Tex.1995).
With the=20
foregoing principles in mind, we conclude that subsection (O) does =
not=20
require that the parent who failed to comply with a court order be =
the=20
same parent whose abuse or neglect of the child warranted the=20
child=3Ds=20
removal. Had the legislature intended such a requirement, it =
could=20
have easily provided that conservatorship be Aas a=20
result of the child=3Ds removal=20
from the parent under Chapter 262 for the abuse or neglect of the =
child=20
by the parent.@ It=20
did not do so, and we presume it did not do so for a =
purpose. See=20
Quick, 7 S.W.3d at 123. Moreover, although no Texas case =
appears=20
to have addressed this precise issue, we have identified at least =
two=20
decisions in which termination of one parent=3Ds rights=20
under subsection (O) was upheld where the abuse was committed by =
the other=20
parent, thereby implying that subsection (O) does not require that =
the=20
parent who failed to comply with a court order be the same parent =
whose=20
abuse or neglect resulted in the child=3Ds=20
removal. See In re C.D.B., 218 S.W.3d 308, =
309B12 (Tex.=20
App.CDallas=20
2007, no pet.) (upholding termination of mother=3Ds parental=20
rights under subsection (O) where mother failed to comply with =
provisions=20
of court order establishing actions necessary for return of =
children, who=20
had been in DFPS conservatorship for not less than nine months as =
result=20
of their removal under Chapter 262, for father=3Ds abuse of=20
one of the children during mother=3Ds=20
absence); see also In re S.M., No. 04-04-00194-CV, 2005 WL =
418540,=20
at *2B4 (Tex.=20
App.CSan=20
Antonio Feb. 23, 2005, no pet.) (mem. op.) (finding sufficient =
evidence to=20
support termination of mother=3Ds parental=20
rights under subsection (O) where mother failed to comply with =
family=20
service plan outlining requirements to obtain return of children, =
who had=20
been in DFPS conservatorship for not less than nine months as =
result of=20
their removal for boyfriend=3Ds physical=20
abuse of one of the children).
DFPS also contends =
that there=20
is no authority for appellant=3Ds claim that =
subsection (O)=20
requires proof of abuse or neglect and cites to In re =
J.F.C., 96=20
S.W.3d 256 (Tex. 2002) in support of its argument. However, =
this=20
argument was recently rejected in In re A.A.A., 265 S.W.3d =
507,=20
513B15 (Tex. =
App.CHouston [1st Dist.] =
2008, pet.=20
denied). In=20
A.A.A., the appellant challenged the termination of her =
parental=20
rights under subsection (O) on the grounds that her child was not =
removed=20
from her as a result of abuse or neglect but solely because she =
had been=20
arrested and was unable to return to the child at the =
shelter. =20
See id. at 513. DFPS argued, inter alia, that =
the=20
supreme court had previously addressed the issue of whether =
Aabuse or =
neglect@ are requirements of =
section=20
161.001(1)(O) in J.F.C. Id. at 514.=20
In =
J.F.C., the=20
court held that section 161.001(1)(O) was conclusively established =
but did=20
not address whether the child at issue was removed for abuse or=20
neglect. See In re J.F.C., 96 S.W.3d at =
278B79. DFPS argued =
that, by=20
not mentioning that the child was removed for abuse or neglect, =
the=20
J.F.C. court eliminated abuse or neglect as a required =
element of=20
subsection (O). See In re A.A.A., 265 S.W.3d at =
514. =20
The A.A.A. court disagreed, noting that the specific =
question of whether a child must be removed under Chapter 262 for =
that=20
child=3Ds own abuse or =
neglect was not=20
brought before the court in J.F.C. See =
id. =20
Instead, the court had been asked to address the constitutionality =
of the=20
broad-form jury charge on parental termination used by the trial=20
court. In re J.F.C., 96 S.W.3d at 277. The =
court did=20
not reach this issue, however, because it held that the evidence=20
established parental conduct pursuant to section 161.001(1)(O) as =
a matter=20
of law. Id.
After=20
noting that several decisions had treated a finding of abuse or =
neglect of=20
the child to be a required element, the court in A.A.A. =
concluded=20
that Abecause=20
the supreme court did not expressly hold [in J.F.C.] that=20
>removal=20
under Chapter 262 for abuse or neglect of the child=3D =
is not=20
an element of subsection 161.001(1)(O), we must adhere to the=20
unambiguous language of the statute.@ =20
In re A.A.A., 265 S.W.3d at 515 (emphasis in =
original). The=20
court then proceeded to consider whether DFPS had proved by clear =
and=20
convincing evidence that the child was removed under Chapter 262 =
for abuse=20
or neglect. Id. at 515B16.
We agree=20
with the court=3Ds analysis=20
in A.A.A. and, likewise, conclude that Aabuse or=20
neglect@ =
is a=20
required element of section 161.001(1)(O). Thus, we must =
determine=20
whether the evidence is sufficient to support the trial =
court=3Ds finding=20
that S.N., S.M.N., and D.A.N. were removed because of abuse or=20
neglect.
On=20
November 25, 2005, DFPS received a referral alleging neglectful=20
supervision and physical neglect of the children by Vidaure. =
Pursuant to section 262.104, which allows for emergency removal =
without a=20
court order, DFPS took the children into custody. =
See Tex. Fam. Code Ann. =
' =
262.104=20
(Vernon Supp. 2007). Attached to DFPS=3Ds Original=20
Petition is an affidavit, signed by a DFPS case worker on November =
28,=20
2005. In it, the case worker stated that when officers from =
the=20
Baytown Police Department arrived at the home at 2:15 p.m., they =
found the=20
children home alone, as well as two cat litter boxes overflowing =
with cat=20
feces, cat feces on Vidaure=3Ds bed, a=20
soiled mattress in the children=3Ds room,=20
dirty dishes in the sink, and spoiled milk in the =
refrigerator. The=20
children told the officers that their mother had left at 2:00 =
a.m.,=20
returned to leave doughnuts, and then left again. After =
waiting=20
forty-five minutes for Vidaure, the officers left with the =
children. =20
Vidaure arrived later at the police department and was arrested =
for=20
abandonment of the children. When questioned by one of the =
officers=20
as to her whereabouts, Vidaure told the officer that she had gone =
to the=20
store to purchase milk. However, the officer informed the =
case=20
worker that there was a corner store that sells milk approximately =
300=20
yards from the house, and that she had not been in there. =
Vidaure=20
later told the case worker that she had left home at 2:30 p.m. to =
get some=20
diapers for D.A.N. and that a neighbor had checked in on the =
children from=20
time to time. The trial court subsequently issued a =
temporary order=20
naming DFPS as the children=3Ds=20
temporary managing conservator, finding, in part, that =
Athere was=20
a danger to the physical health or safety of the =
children@ =
and that=20
Athere is a=20
substantial risk of a continuing danger if the children are =
returned=20
home.@ We=20
conclude that the evidence is legally and factually sufficient to =
support=20
the trial court=3Ds finding=20
that the children were removed under Chapter 262 for =
neglect. We=20
overrule appellant=3Ds fourth=20
issue. <=
SPAN=20
style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 150%; FONT-FAMILY: =
Shruti">
B. =20
Best Interest of the Child
In his=20
fifth issue, appellant challenges the legal and factual =
sufficiency of the=20
trial court=3Ds finding=20
that termination was in the children=3Ds best=20
interest pursuant to section 161.001(2).
There is a=20
strong presumption that the best interest of the child is served =
by=20
keeping the child with its natural parent, and the burden is on =
the=20
Department to rebut that presumption. In re S.M.L., =
171=20
S.W.3d at 480; In re U.P., 105 S.W.3d at 230. The =
same=20
evidence of acts or omissions used to establish grounds for =
termination=20
under section 161.001(1) may be probative in determining the best =
interest=20
of the child. In re A.A.A., 265 S.W.3d at 516. =
In=20
reviewing the sufficiency of the evidence to support the second =
prong, a=20
court examines several factors, including (1) the desires of the =
child,=20
(2) the present and future physical and emotional needs of the =
child, (3)=20
the present and future emotional and physical danger to the child, =
(4) the=20
parental abilities of the persons seeking custody, (5) the =
programs=20
available to assist those persons seeking custody in promoting the =
best=20
interest of the child, (6) the plans for the child by the =
individuals or=20
agency seeking custody, (7) the stability of the home or proposed=20
placement, (8) acts or omissions of the parent which may indicate =
the=20
existing parent‑child relationship is not appropriate, and =
(9) any excuse=20
for the parent=3Ds acts or=20
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. =
1976);=20
In re S.M.L., 171 S.W.3d at 480; In re U.P., 105 =
S.W.3d at=20
230. This list is not exhaustive, nor is evidence required =
on all=20
nine factors to support a finding terminating a parent=3Ds=20
rights. Holley, 544 S.W.2d at 372; In re U.P., =
105=20
S.W.3d at 230. With these considerations in mind, we review =
the=20
evidence below.
We begin=20
by considering the desires of the children. Connie =
Patterson, the=20
therapist of S.N. and S.M.N., testified that S.N. and S.M.N. have =
each=20
told her that they want to move forward and have discussed the =
possibility=20
of staying in their foster home on a permanent basis. Two =
weeks=20
before trial, S.N. told Patterson that she had Asomething=20
really good@ =
to tell=20
herCher foster=20
parents wanted to adopt all three of them. Patterson =
testified that=20
when S.N. gave her the news, S.N. was Aextremely=20
excited, jumping all around.@ =
She=20
further testified that S.N. and S.M.N. have never talked about =
appellant=20
unless she mentions him first and that they consider their foster =
parents=20
to be their parents. Likewise, Patterson testified that =
D.A.N. is=20
completely attached to his foster parents and believes they are =
his=20
parents. She believes that although the children have =
ambivalent=20
feelings about appellant, and it would be sad for them to lose =
their=20
parents, they are ready to move forward. Several months =
before=20
trial, S.N. and S.M.N. also told Ed Thompson, the court-appointed=20
children=3Ds=20
advocate, they wanted to be adopted by their foster parents. =
Thompson testified that, at the time of trial, the children had =
not=20
mentioned appellant in over seven months.
We next=20
examine the children=3Ds present=20
emotional or physical considerations now and in the future. =20
Patterson testified that when she first met S.N. and S.M.N., they =
were=20
traumatized and very sensitive to the abandonment issue and that =
it was=20
very difficult to speak to them without them crying. S.N. =
worried a=20
lot about the instability of their situation. According to=20
Patterson, S.N. was a very Aparentified@ =
child,=20
i.e., she acted as if she were her younger =
siblings=3D =
mother,=20
and S.M.N. and D.A.N. deferred to her as if she were their =
mother. =20
However, Patterson also testified that the children=3Ds foster=20
parents are working with S.N. on her tendency to give her brother =
and=20
sister instructions and that S.N. is making consistent progress in =
that=20
regard. She also testified that S.N. and S.M.N. were behind=20
developmentally in school and that DFPS had received reports from =
their=20
school regarding acting out behavior. In her opinion, the =
children=20
would not sustain any permanent damage if appellant=3Ds parental=20
rights were terminated. She further testified that she =
believed=20
termination of appellant=3Ds parental=20
rights was in the children=3Ds best=20
interest because the children were in danger of developing =
reactive=20
attachment disorder if they were returned to an unstable=20
environment. Although she acknowledged that she did not know =
whether=20
appellant was in an unstable situation, she testified that there =
was=20
evidence presented at trial that concerned her. If=20
appellant=3Ds parental=20
rights were not terminated, she could prepare the children to =
return to=20
him provided that they receive on-going therapy and that a system =
be put=20
into place to ensure their safety and =
nurturing.
With=20
regard to appellant=3Ds parental=20
abilities, appellant was in jail for driving with a suspended =
license at=20
the time DFPS removed the children on November 25, 2005. In =
February=20
2006, appellant was again arrested and served approximately =
eighteen days=20
in jail. Appellant visited his children until April 2006 but did =
not visit=20
them between April 2006 and the date of trial because he =
mistakenly=20
believed that his visitation rights had been terminated. =20
If the children were returned to him, appellant testified he would =
upgrade=20
his current one-bedroom apartment that he shares with his =
grandmother to a=20
three-bedroom apartment. Appellant testified he is disabled =
from a=20
work-related back injury and receives $711 in monthly disability=20
payments. He planned to support his children with the =
disability=20
payments and food stamps. Appellant would also have help =
caring for=20
the children from his grandmother and has an emergency contact in =
his=20
apartment complex who could drive to the doctor. Prior to =
his=20
incarceration in February 2006, appellant had attended two or =
three=20
parenting classes but did not complete the program and other =
aspects of=20
the family services plan because he lacked transportation. =
Patterson=20
testified that S.N. told her that she, rather than appellant, had =
been=20
responsible for feeding S.M.N. and D.A.N., putting them to bed, =
and=20
dressing them in the morning. DFPS supervisor Aisha Jones =
testified=20
she was concerned that appellant was taking some potentially =
addictive=20
medications for his back injury and also for anxiety, but she was =
unaware=20
of any drug problem. Thompson testified that appellant was a =
very=20
loving father and the children appeared to bond very well with him =
during=20
the two family meetings he attended, but that his visits were=20
inconsistent. The children eventually quit mentioning him =
and now=20
consider the foster parents to be their parents.
As for=20
available programs, appellant testified that he receives food =
stamps and=20
$711 in monthly disability income. With regard to the plans =
for the=20
children, the foster parents have expressed a desire to adopt all =
three=20
children. Patterson testified that the children are doing=20
Asuperb@ =
in their=20
foster home and are becoming very well adjusted. Thompson, =
who saw=20
the children regularly, testified that they were doing =
Aexceedingly=20
well@ =
in their=20
foster home.
Finally,=20
we consider appellant=3Ds acts or=20
omissions indicating that the existing parent-child relationship =
is=20
improper and any excuses he has for his behavior. Appellant =
was=20
incarcerated for a suspended driver=3Ds license=20
at the time his children were removed in November 2005 and again =
in=20
February 2006 for outstanding traffic violations. Appellant =
visited=20
his children until April 2006, but his visits were inconsistent, =
and he=20
did not visit them between April 2006 and the date of trial based =
on a=20
mistaken belief that his visitation rights had been =
terminated. He=20
subsequently tried to contact DFPS on a couple of occasions and =
left=20
several messages for the case worker, but no one ever returned his =
call. He testified that his failure to complete parenting =
classes=20
and other parts of the family services plan was due to a lack of=20
transportation.
Viewing=20
the evidence in the light most favorable to the judgment, we =
conclude that=20
a reasonable trier of fact could have formed a firm belief or =
conviction=20
that the best interest of S.N., S.M.N., and D.A.N. would be served =
by=20
termination of appellant=3Ds parental=20
rights. Based upon our review of the entire record, we =
conclude that=20
a fact finder could reasonably form a firm conviction or belief =
that the=20
termination of his parental rights would be in the =
children=3Ds best=20
interest. We therefore find the evidence legally and =
factually=20
sufficient to support the trial court=3Ds=20
finding. We overrule appellant=3Ds fifth=20
issue.
Having=20
overruled issues four and five with regard to the trial =
court=3Ds findings=20
under section 161.001(1)(O) and the children=3Ds best=20
interest, we need not address appellant=3Ds third=20
issue challenging the trial court=3Ds findings=20
under subsection (N). In re T.T., 228 S.W.3d 312, 321 =
n.8=20
(Tex. App.CHouston=20
[14th Dist.] 2007, pet. denied).
C. =20
Sole Managing Conservator
Having=20
affirmed the termination of appellant=3Ds parental=20
rights, we consider his sixth issue, which asks whether the =
appointment of=20
DFPS as sole managing conservator should be reversed. =
However,=20
because appellant asks us to consider this issue only if we =
conclude that=20
the trial court erred in terminating his parental rights, we need =
not=20
address it.
D. =20
Constitutionality of Family Code Section 263.405(i)
In his first issue, =
appellant=20
urges us to consider Awhether ' 263.405 is =
unconstitutional to=20
the extent it requires appellant to identify appellate points =
prior to the=20
appeal being perfected and before the trial court must file =
findings of=20
fact and conclusions of law.@ Specifically, =
he=20
contends that section 263.405(i) places an arbitrary and =
unreasonable=20
barrier to appellate court consideration and, in doing so, results =
in an=20
unconstitutional deprivation of a parent=3Ds due process rights, =
in=20
violation of the Texas and United States Constitutions. =
See=20
U.S. Const. =
amend. XIV=20
' 1; Tex. Const. art. I, =
' 19.
1. =20
Facially Unconstitutional
In=20
addressing appellant=3Ds=20
constitutional challenges to section 263.405, we begin with the =
premise=20
that, when possible, we must interpret a statute in a manner that =
renders=20
it constitutional. See FM Props. Operating Co. v. City of =
Austin, 22 S.W.3d 868, 873 (Tex. 2000); Quick, 7 S.W.3d =
at=20
115. We note that A[a] facial=20
challenge to a statute is the most difficult challenge to mount=20
successfully because the challenger must establish that no set of=20
circumstances exists under which the statute will be =
valid.@ =20
Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. =
1992)=20
(citing United States v. Salerno, 481 U.S. 739, 745 =
(1987)). =20
Thus, a party raising a facial challenge to the constitutionality =
of a=20
statute must demonstrate that the statute always operates=20
unconstitutionally. See Neeley v. West Orange-Cove =
Consol. Indep.=20
Sch. Dist., 176 S.W.3d 746, 814 n.94 (Tex. 2005); Wilson v. =
Andrews, 10 S.W.3d 663, 670 (Tex. 1999). As noted by the =
United=20
States Supreme Court in Salerno, that a statute =
Amight=20
operate unconstitutionally under some conceivable set of =
circumstances is=20
insufficient to render it wholly invalid, since we have not =
recognized an=20
>overbreadth=3D =
doctrine=20
outside the limited context of the First Amendment.@ =20
United States v. Salerno, 481 U.S. 739, 745 (1987). =
In=20
reviewing a facial challenge to a statute=3Ds=20
constitutionality, we consider the statute as written, rather than =
as it=20
operates in practice. See FM Props. Operating =
Co., 22=20
S.W.3d at 873.
Appellant=20
asserts that section 263.405(i) is facially unconstitutional to =
the extent=20
that it requires a party to address in its statement of points =
matters not=20
found by the trial court until after the deadline for filing the =
statement=20
has expired. Turning to the language of the statute at =
issue, it=20
provides in relevant part:
(b) Not later than =
the 15th=20
day after the date a final order is signed by the trial judge, a =
party=20
intending to appeal the order must file with the trial court a =
statement=20
of the point or points on which the party intends to appeal. =
The=20
statement may be combined with a motion for a new =
trial.
. . . .=20
(i) The appellate =
court may=20
not consider any issue that was not specifically presented to the =
trial=20
court in a timely filed statement of the points on which the party =
intends=20
to appeal or in a statement combined with a motion for new=20
trial.
Tex.=20
Fam. Code Ann. ' =
263.405=20
(Vernon Supp. 2006). Pursuant to Texas Rule of Civil =
Procedure 296,=20
a party may file a request for findings of fact and conclusions of =
law=20
within twenty days from the date a judgment is signed. =
See=20
Tex. R. Civ. P.=20
296. Thus, juxtaposing section 263.405 with Rule 296, =
it is=20
possible that a court might issue findings and conclusions after =
the due=20
date for the statement of points has expired, as was the case=20
here.
However,=20
as discussed above, just because a statute Amight=20
operate unconstitutionally under some conceivable set of =
circumstances is=20
insufficient to render it wholly invalid.@ =20
See Salerno, 481 U.S. at 745. Instead, a party =
seeking to=20
invalidate a statute must establish that every application of the =
statute=20
violates the constitution. See Nootsie, Ltd. v. =
Williamson Co.=20
Appraisal Dist., 925 S.W.2d 659, 663 (Tex. 1996). We =
note that a=20
party who appeals a termination where the only alleged trial court =
error=20
occurred prior to the due date for filing a statement of points =
would not=20
be required to address in its statement matters found by the trial =
court=20
after expiration of the due date. Moreover, it is =
conceivable that=20
where a party promptly requests findings of fact and conclusions =
of law, a=20
trial court could file its findings and conclusions prior to =
expiration of=20
the due date for the statement of points. Further, the Texas =
Supreme=20
Court recently held that, under Texas Rule of Civil Procedure 5, a =
trial=20
court may grant a party=3Ds motion=20
to extend time for filing a statement of points for appeal under =
section=20
263.405. See In re M.N., No. 07-0698, __ S.W.3d __, =
2008 WL=20
3991189, at *5 (Tex. Aug. 29, 2008). Thus, a trial court may =
grant a=20
party=3Ds motion=20
to enlarge time for filing a statement of points where the party =
shows=20
good cause for its failure to timely file it. Tex. R. Civ. P. =
5.
Appellant=3Ds=20
suggestion that section 263.405 is unconstitutional to the extent =
it=20
requires a statement of points to include matters not found by the =
trial=20
court until after expiration of the fifteen-day deadline is =
insufficient=20
to demonstrate that the statute always operates =
unconstitutionally. =20
Consequently, we reject appellant=3Ds argument=20
that section 263.405(i) is facially unconstitutional.
2. =20
Unconstitutional AAs=20
Applied@
In the=20
alternative, appellant asks us to find that section 263.405, as =
applied to=20
him, is unconstitutional. An Aas=20
applied@ =
challenge=20
only requires the challenger to demonstrate that the statute =
operates=20
unconstitutionally when applied to the challenger=3Ds=20
particular circumstances. See Texas =
Workers=3D =
Comp.=20
Comm=3Dn v.=20
Garcia, 893=20
S.W.2d 504, 518 n.16 (Tex. 1995); In re N.C.M., No. =
04-08-00016-CV,=20
__ S.W.3d. __, 2008 WL 3457028, at *1 (Tex. App.CSan=20
Antonio Aug. 13, 2008, no pet. h.); In re B.S.W., 87 S.W.3d =
766,=20
771 (Tex. App.CTexarkana=20
2002, pet. denied).
Here, the=20
trial court signed the termination decree on February 6, =
2007. On=20
February 20, 2007Cfourteen=20
days laterCappellant=3Ds=20
appellate counsel filed a combined statement of appellate points =
and=20
motion for new trial. In his statement, appellant did not =
raise the=20
issue of paternity as to S.N. or S.M.N. On February 21, =
2007,=20
appellate counsel filed a request for findings of fact and =
conclusions of=20
law. On March 2, 2007, DFPS filed proposed findings of fact =
and=20
conclusions of law. On March 13, 2007, following a hearing, =
the=20
trial court signed an order denying appellant=3Ds motion=20
for new trial and issuing its findings of fact and conclusions of=20
law.
Among its=20
findings and conclusionsCwhich=20
mirrored those proposed by DFPS save oneCthe court=20
found that the father of S.N. and S.M.N. was unknown. =
Appellant=20
contends that because the termination decree identified him as the =
father=20
of S.N. and S.M.N. and the issue of paternity as to S.N. and =
S.M.N. was=20
only raised for the first time in DFPS=3Ds proposed=20
findings of fact and conclusions of lawCand after=20
the fifteen-day deadline for filing his statement of points had=20
passedCA[t]here=20
was no paternity question to raise in the Statement of Appellate=20
Points.@ As=20
such, he contends that section 263.405(i) is unconstitutional as =
applied=20
to him because it required him to address an issue of which he was =
unaware=20
before filing his statement.
In support=20
of his position that the decree identified him as S.N. and=20
S.M.N.=3Ds father,=20
appellant points to the heading of paragraph 8, entitled =
ATermination=20
of Respondent Father DAVID ALLEN NEUENSCHWANDER, JR.=3DS Parental=20
Rights,@ =
and=20
argues that if he was not the children=3Ds father,=20
there would have been no need to terminate his parental =
rights. He=20
further asserts that he is not identified as Aalleged=20
father@ =
in the=20
termination decree, and that it is only in the findings of fact =
that the=20
trial court specifically stated that he was not the father of S.N. =
and=20
S.M.N. =20
Thus, he concludes that because the trial court did not file its =
findings=20
of fact until after the fifteen-day period for filing a statement =
of=20
points had expired, he was prevented from raising the issue in his =
statement. See Tex.=20
Fam. Code Ann. 263.405(i). We =
disagree.
Contrary=20
to appellant=3Ds=20
assertion, sub-paragraph 1.3 of the decree provides, ARespondent=20
Alleged Father DAVID ALLEN NEUENSCHWANDER, JR. . . . duly =
and=20
properly cited, appeared in court@ =
(emphasis=20
added). Further, although appellant is correct that =
paragraph 8 of=20
the decree refers to ATermination=20
of Respondent Father DAVID ALLEN NEUENSCHWANDER, JR.=3DS Parental=20
Rights,@ =
paragraph=20
6 clearly provides that appellant=3Ds=20
paternity is established as to D.A.N. only and makes no mention of =
his=20
paternity with regard to S.N. and S.M.N. =20
Moreover, paragraphs 9 and 10 are entitled ATermination=20
of the UNKNOWN FATHER of [S.R.N.]=3DS Parental=20
Rights@ =
and=20
ATermination=20
of the UNKNOWN FATHER of [S.M.N.]=3DS Parental=20
Rights.@ =20
Thus, appellant can hardly be heard to complain on appeal that he =
was=20
unaware that the paternity of S.N. and S.M.N. was in question =
until the=20
court filed its findings of fact and conclusions of law. To =
the=20
contrary, the decree made clear that only his paternity as to =
D.A.N. was=20
established. As such, section 263.405(i) did not require him =
to=20
address an issue in his statement of points of which he was =
unaware prior=20
to filing it. We therefore conclude that section 263.405(i) =
is not=20
unconstitutional as applied to him. =20
We overrule appellant=3Ds first=20
issue.
E. =20
Paternity Findings
In his=20
second issue, appellant contends that the evidence was legally and =
factually insufficient to support the trial court=3Ds finding=20
regarding his paternity as to S.N. and S.M.N. Specifically, =
he=20
contends that there is no evidence to support the =
court=3Ds Findings=20
of Fact 3, 4, 7, 8, 9, 10, and 21.
On March=20
13, 2007, the court issued the following relevant findings of=20
fact:
3. =20
Appellant did not sign an acknowledgment of paternity with the =
intent to=20
establish his paternity for the children, [S.M.N.] and=20
[S.R.N.].
4. =20
Appellant did not register with the paternity registry of the =
bureau of=20
vital statistics as a father of either [S.M.N.] or =
[S.R.N.].
7. =20
Appellant did not submit to DNA testing to establish himself as =
the father=20
of either the child, [S.M.N.] or [S.R.N.].
8. =20
No father has filed with the paternity registry of the bureau of =
vital=20
statistics as the father of either [S.M.N.] or =
[S.R.N.].
9. =20
No man commenced a proceeding to adjudicate his paternity to the =
children=20
[S.M.N.] or [S.R.N.] at any time before judgment was rendered in =
this=20
case.
10. =20
The father of [S.M.N.] and [S.R.N.] is unknown.
21. =20
There is clear and convincing evidence that the Department of =
Family and=20
Protective Services exercise[] due diligence to determine the =
location and=20
identify [sic] of the father(s) of [S.M.N.] and [S.R.N.].=20
DFPS=20
asserts that appellant failed to preserve his complaint regarding =
the=20
court=3Ds decision=20
not to declare him the father of S.N. and S.M.N. In support =
of its=20
argument, DFPS emphasizes that the termination decree declared =
appellant=20
only to be the father of D.A.N. and also terminated the parental =
rights of=20
the unknown fathers of S.N. and S.M.N. DFPS contends that =
because=20
appellant made no attempt to complain about those portions of the=20
court=3Ds=20
judgment, either in a motion to modify judgment or for new trial, =
or in=20
his statement of appellate points, he failed to preserve his =
complaint for=20
review.
Appellant=20
disputes this contention, but he does not demonstrate how he =
complained=20
about the trial court=3Ds failure=20
to adjudicate him as the father of S.N. and S.M.N. In light =
of our=20
disposition of his first issue, and because appellant failed to =
present=20
the issue of his paternity as to S.N. and S.M.N. to the trial =
court in his=20
statement of points as required under section 263.405(i), we are =
precluded=20
from considering this issue on appeal. Issue two is=20
overruled.
IV. =20
CONCLUSION
For the=20
foregoing reasons, we affirm the trial court=3Ds=20
judgment.
/s/ =20
Leslie B. Yates
Justice
Panel consists of =
Justices=20
Yates, Anderson, and Brown.
In his Response to =
Appellee=3Ds Brief, appellant cites to the =
court=3Ds original opinion rendered in this =
case, In re=20
A.A.A., No. 01-07-00160-CV, 2008 WL 201033 (Tex. =
App.CHouston [1st Dist.] Jan. 24, =
2008). However,=20
the court subsequently granted DFPS=3Ds motion for rehearing, withdrew its =
original=20
opinion, and issued In re A.A.A., 265 S.W.3d 507 (Tex.=20
App.CHouston [1st Dist.] 2008, pet. denied), =
in its=20
stead.
In his Motion for Rehearing, =
appellant=20
contends the affidavit could not be considered as evidence to =
support the=20
trial court=3Ds judgment because DFPS never offered it =
into=20
evidence at trial. DFPS filed the affidavit to provide proof =
of=20
neglect in support of its initial request for emergency removal of =
the=20
children, and the trial court relied upon the affidavit in =
granting the=20
request. In its response, DFPS counters that the trial court =
and=20
this court could take notice of the fact that the affidavit had =
been=20
provided as proof for its request for emergency removal. In =
support=20
of its position, it cites two opinions in which the appeals courts =
considered the affidavits attached to DFPS=3Ds petitions in finding the evidence of =
abuse or=20
neglect sufficient to uphold the trial courts=3D findings. See In re =
A.A.A., 265=20
S.W.3d 507, 516 (Tex. App.CHouston [1st Dist.] 2008, pet. denied); =
In re=20
M.B., No. 07-04-0334-CV, 2004 WL 2867544, at *2 (Tex. =
App.CAmarillo Dec. 14, 2004, no pet.) (mem. =
op., not=20
designated for publication). However, we need not decide =
this issue=20
because the evidence in question also appears in the family =
service=20
planCwhich was admitted into evidence at =
trial without=20
objectionCin nearly identical language. =
Moreover,=20
while questioning DFPS supervisor Aisha Jones about =
appellant=3Ds failure to comply with the plan =
requirements,=20
appellant=3Ds trial counsel stated, AThe main thing [appellant] is here for =
are things=20
the mother did, right? She had a messy apartment. She=20
didn=3Dt change the cat=3Ds litter pans. She walked off to =
get milk=20
and abandoned the children.@ Thus, error, if any, was =
harmless. =20
See In re W.E.C., 110 S.W.3d 231, 248 (Tex. =
App.CFort Worth 2003, no pet.) (concluding =
any error in=20
admitting substance of mother=3Ds privileged communications to drug =
treatment=20
counselor was harmless, in proceedings to terminate =
mother=3Ds parental rights, where other evidence, =
including=20
mother=3Ds testimony and that of caseworkers, =
therapists,=20
and friends, established same facts).
During this last =
visit,=20
appellant, his grandmother, Vidaure, and her boyfriend went to =
visit the=20
children. Vidaure entered the building to talk to the=20
children=3Ds case worker and, =
upon her=20
return, she told appellant that their visitation was =
cancelled. As=20
they stood outside talking, a security guard approached them, =
accompanied=20
by the case worker, and told them to leave the premises. =
Appellant=20
later learned that Vidaure=3Ds visitation had =
been=20
cancelled because she had lice. Appellant did not visit his =
children=20
again. He testified =
that he=20
believed his visitation rights had been terminated, although he =
also=20
testified that no one at DFPS told him that he could not see his=20
children.
Appellant=3Ds contention that A[i]t was only in the Findings of Fact =
that the=20
trial court specifically stated that appellant was not the =
older=20
two children=3Ds father@ is inaccurate. Finding of Fact =
No. 10, to=20
which we presume appellant refers, states, AThe father of =
[S.M.N.] and=20
[S.R.N.] is unknown.@ This is not =
the same=20
as stating that appellant is not the father of S.N. and =
S.M.N. In fact, Finding No. 10 arguably =
goes no=20
further regarding appellant=3Ds paternity as to S.N. and S.M.N. than =
the decree,=20
which established his paternity as to D.A.N. only and provided for =
termination of the unknown fathers=3D rights to S.N. and =
S.M.N.
Paragraph 6 of the decree =
provides, in=20
relevant part:
Establishment of Paternity: DAVID ALLEN=20
NEUENSCHWANDER, JR.
IT IS ORDERED AND DECREED =
that DAVID ALLEN NEUENSCHWANDER, JR. =
is,=20
and he is hereby declared to be, the father of the child =
[D.A.N.] .=20
. . .@
We note that one other court of =
appeals has=20
reached a similar conclusion, albeit on other grounds. =
See In re=20
A.T.S., No. 12-07-00196-CV, 2008 WL 2930392, at =
*18B19 (Tex. App.CTyler July 31, 2008, no pet. h.) (mem. =
op.). =20
In that case, the appellants argued that section 263.405 was=20
unconstitutional in its application because the fifteen-day =
deadline for=20
filing a statement of points required them to address findings of =
fact and=20
conclusions of law that had not yet been filed. See =
id. at=20
18. The court stated A[b]ecause interpreting Section =
263.405(i) to mean=20
that [the appellants] cannot complain of alleged errors involving =
findings=20
of fact and conclusions of law filed or omitted after Section=20
263.405(b)=3Ds deadline leads to an absurd result, we =
conclude=20
that Section 263.405(i) does not apply to alleged errors occurring =
after=20
the fifteen day deadline. Therefore, Section 263.405(i) is =
not=20
unconstitutional on this basis.@ Id. at=20
19. |