TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00505-CV
NO. 03-98-00506-CV
Carmen Leon, Appellant
v.
Texas Department of Protective and Regulatory Services, Appellee
FROM THE DISTRICT COURTS OF HAYS COUNTY, 22ND & 207TH JUDICIAL DISTRICTS
NOS. 98-0006 & 94-0789, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
Carmen Leon is the mother of nine children; her parental rights to her six younger children were terminated in two consolidated cases. (1) Leon brings these two appeals complaining of inadequate notice, amendment to the pleadings after trial, denial of her motion for continuance, ineffective assistance of counsel, and insufficient evidence of the grounds for termination and the trial court's finding that termination is in the best interest of the children. We will affirm the trial-court decrees.
BACKGROUND
Ms. Leon is thirty-two years old. In addition to the six children involved in these appeals, she is the mother of three other children: one child died while in her care, possibly of medical neglect, and she voluntarily gave up custody of the two other living children. One of these six children was born with fetal alcohol syndrome and the youngest of the six, whose father is unknown, was born while Ms. Leon was in prison. Ms. Leon admits that she is an alcoholic, and the record establishes her history as the victim of an abusive relationship.
In October 1994, Kyle police officers responded to a domestic violence call involving Ms. Leon and her boyfriend, Ramiro Rodriguez, Sr., who is the father of two of her children. The Department took possession of Maria, Christopher, Andrew, and Irene at that time, and they have remained in the Department's care ever since. Later, Ramiro Rodriguez, Jr. was born with fetal alcohol syndrome, was removed from appellant's care, and the original petition was amended to address this fifth child as well.
In response to this October 1994 incident, Ms. Leon was charged with injury to a child for failing to protect her children from Mr. Rodriguez. She pleaded guilty to this charge and was placed on three years' probation on the condition that she undergo alcohol treatment. She failed to show up at the treatment facility and was "on the run" for eight months, during which time her whereabouts were unknown to the Department or the police. When she was caught, her probation was revoked and she was sentenced to three years' imprisonment. The sixth child, Chasidy, was born while Ms. Leon was in prison; the infant was removed from appellant's care at birth and made the subject of a separate suit for termination that is the second cause involved in this appeal. In addition to the conviction for injury to a child, Ms. Leon has been arrested once for driving while intoxicated and numerous times for public intoxication.
DISCUSSION
Procedural Complaints
In her first three points of error, Ms. Leon complains that she was not given adequate notice of the hearing on termination, and that the trial court abused its discretion in granting the Department's motion for a trial amendment and in failing to grant her motion for a continuance. We will address these procedural complaints together.
The trial was held on May 12, 1998. On March 13, 1998, Ms. Leon received a motion for a trial setting on April 30, 1998. This was the fifth time this matter had been scheduled for a hearing on termination. (2) Ms. Leon complains that the notice she received was inadequate because it referred to a hearing rather than to a trial. The motion stated that there would be a hearing "for the purpose of a Permanency Hearing and a Hearing on the Merits for Termination." When the court changed the date to May 12, it sent a notice stating, "The hearing will take approximately 2 (Hours) Memo: TRIAL ON THE MERITS." A trial court may reset a trial by giving the party or her attorney reasonable notice. Tex. R. Civ. P. 245. Ms. Leon complains that the initial notice, lacking the word "trial," was improper and ambiguous. However, the Family Code refers to the termination trial variously as a "final hearing on the merits," a "trial," and a "hearing." Tex. Fam. Code Ann. §§ 161.202, .2011(a), .003(c), .004(b) (West 1996 & Supp. 1999). We reject appellant's contention that she did not receive adequate notice of the nature and purpose of the hearing.
Additionally, Ms. Leon asserts that the notice was given only in the suit concerning the five older children. A termination hearing had been previously set four times in the cause concerning these five children. The youngest child, Chasidy Leon, was born January 6, 1998; she was the subject of a separate cause that had not previously been set for a hearing on termination. However, the parties have handled both cases together since Chasidy was removed, the hearings scheduled for April 30, 1998 addressed both causes, the court's appointed special advocate filed one report for both causes, and appellant did not object to addressing the issues involving Chasidy at the May 12, 1998 hearing. We find that appellant received sufficient timely notice of the termination hearing concerning all six of the children and overrule the first point of error.
On May 12, 1998, appellant's attorney pointed out that a page was missing from the second amended petition in the first cause and that there was no allegation that it would be in the best interest of the child Ramiro to terminate Ms. Leon's parental rights. In response, the trial court permitted the Department to amend the pleadings to include this allegation. In her second point of error, appellant claims that the trial court erred in allowing the amendment.
The trial court has wide discretion in granting a trial amendment and the objecting party must show surprise or prejudice before such a request shall be denied. See Tex. R. Civ. P. 66. If "during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby." Id. The amendment should be allowed unless the objecting party satisfies the court that the amendment would prejudice her in maintaining the action or a defense upon the merits. See id. There was no surprise or prejudice to appellant. The original petition in the cause involving four of the older children alleged that termination would be in the children's best interest as early as October 1994. This petition was amended to included the fifth child Ramiro, born with fetal alcohol syndrome (it is this amendment that is missing reference to "best interest of this child"). The second cause, involving the infant Chasidy born in prison, also alleges that termination of Chasidy's relationship with her mother would be in the child's best interest. The trial amendment made the pleadings concerning Ramiro conform to the rest of the pleadings; it did not operate to surprise or prejudice Ms. Leon when trial began on May 12, 1998. We hold that the trial court did not abuse its discretion in granting the trial amendment and overrule the second point of error.
Finally, Ms. Leon alleges error in the trial court's failure to grant her motion for continuance on April 27, 1998. We will not disturb the trial court's denial of a motion for continuance unless the record reflects a clear abuse of discretion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 676 (Tex. App.--Houston [1st Dist.] 1996, no writ). Ms. Leon complains of lack of time to confer with her attorney. However, appellant was brought from prison to Hays County on a bench warrant on or about April 22, approximately twenty days before the hearing on May 12. At the hearing, her attorney testified that he had adequate time to confer with his client but suggested that if the trial court would put off the trial until his client was released from prison, allegedly in June 1998, she would then have a chance to take the parenting classes necessary for her to be reunited with her children. In light of appellant's track record of not providing a suitable home for any of her nine children during the entire period of her motherhood, and her previous failures to cooperate with the Department since October 1994 in pursuing parenting classes or alcohol treatment, we hold that the trial court did not abuse its discretion in denying the motion for a continuance until appellant was out of jail. See Rodriguez v. Dep't of Human Servs., 737 S.W.2d 25, 28 (Tex. App.--El Paso 1987, no writ). This termination hearing had been postponed five times. The future of these children had been in limbo since October 1994 or since their birth. The trial court could have determined that further delay was not in the children's best interest. We overrule the third point of error.
Sufficiency of the Evidence
The trial court found by clear and convincing evidence that Ms. Leon knowingly placed or knowingly allowed her children to remain in conditions or surroundings that endangered their physical or emotional well-being, and that termination would be in the best interest of the children. In points of error four and five, appellant challenges the sufficiency of the evidence to support these findings. It is not clear whether appellant challenges the legal sufficiency or factual sufficiency of the evidence; we will therefore review the evidence under both standards in the interest of justice. See Tex. R. App. P. 38.9; Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 157 n.2 (Tex. App.--Dallas 1992, writ denied).
In reviewing a legal sufficiency challenge, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor. See Associated Indem. Corp. v. CAT Contracting, 964 S.W.2d 276, 285-86 (Tex. 1998). We will uphold the finding if more than a scintilla of evidence supports it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). The evidence supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding given the facts proved in the particular case. See Crye, 907 S.W.2d at 499; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994). In conducting a factual sufficiency review, we consider and weigh all the evidence and set aside the judgment only if it is factually so weak or so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); King's Estate, 244 S.W.2d at 661; see generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991).
We first address appellant's complaint that there is no evidence that she knowingly placed the infant born in prison in conditions or surroundings that endangered her well-being because Chasidy was removed at birth from this prison environment "that was warm, clean, and where her physical needs would have been met." Perhaps in relation to the other environments she had provided for her children, appellant viewed prison as a safe and nurturing environment for an infant. That does not speak well of Ms. Leon's ability to provide a suitable environment for her children.
Imprisonment of a parent, of and by itself, does not constitute conduct that endangers a child's well-being. See In re Guillory, 618 S.W.2d 948, 950 (Tex. App.--Houston [1st Dist.] 1981, no writ). However, this record is replete with evidence of Ms. Leon's acts and omissions that created dangerous situations for her other children. Evidence of a parent's conviction and a parent's addiction can sustain a finding that a parent has engaged in conduct that endangers a child's emotional and physical well-being. See id. Abusive conduct to one child will suffice to terminate parental rights to another child. See Lucas v. Texas Dep't of Protective and Regulatory Servs., 949 S.W.2d 500, 503 (Tex. App.--Waco 1997, pet. denied). The trial court found: (1) that Ms. Leon had a baby who died due to her medical neglect; (2) that she had been convicted of injury to a child; (3) that she was out of contact with the Department for an eight-month period while the Department maintained care and custody of her children; (4) that one child who was a subject of this suit was born with fetal alcohol syndrome; (5) that Ms. Leon failed to report for in-patient alcohol treatment ordered as a condition of her probation; and (6) that she became a fugitive for eight months before she was arrested and sentenced to three years in prison. Furthermore, the trial court found that the Department had made reasonable and consistent efforts to work with Ms. Leon. There was evidence that Ms. Leon was initially uncooperative with the Department, that she had not visited with the older children since April 1996, and that she was unable to provide a suitable or stable environment for any of her children. We find that legally and factually sufficient evidence supports the grounds for termination and overrule the fourth point of error.
In her fifth point of error appellant challenges the trial court's conclusion that it is in the best interest of these children that Ms. Leon's parental rights be terminated. There was clear and convincing evidence of Ms. Leon's inability to provide a stable and safe home for her children that would support their emotional and physical well-being. Reviewing the factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), we find evidence that (1) one child asked the Department to terminate her relationship with appellant; (2) Ms. Leon's history of addiction and domestic abuse posed a past and future danger to her children; and (3) Ms. Leon's inability to remain in an alcohol-treatment program or attend parenting classes that were offered left her without any effective plans for learning to care for her children. Furthermore, appellant introduced no evidence that anyone, family members or others, could properly provide for the children's physical and emotional well being until she was released from prison. See Segovia v. Texas Dep't of Protective and Regulatory Servs., 979 S.W.2d 785, 787 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).
The caseworker assigned to these children testified that they had been in limbo for almost four years waiting for their mother to address her alcohol addiction, and that they needed permanency, hopefully leading to adoption. The ad-litem appointed to represent the interests of the children testified in favor of termination. This evidence is legally and factually sufficient to support the trial court's conclusion that termination was in the best interest of the six children. We overrule the fifth point of error.
Ineffective Assistance
Finally, appellant complains that she received ineffective assistance of counsel that violated her due process rights. Because the right to effective assistance of counsel is limited to defendants in criminal cases, litigants in parent-child termination proceedings are not entitled to this protection. See Arteaga v. Texas Dep't of Protective and Regulatory Servs., 924 S.W.2d 756, 762 (Tex. App.--Austin 1996, writ denied); Krasniqi v. Dallas County Child Protective Servs. Unit, 809 S.W.2d 927, 932 (Tex. App.--Dallas 1991, writ denied), cert. denied, 503 U.S. 1006 (1992); Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729, 734-35 (Tex. App.--Dallas 1986, writ ref'd n.r.e.), cert. denied, 481 U.S. 1018 (1987). Appellant cites no authority supporting her suggestion that such a right exists in cases involving termination, and we have found only authority to the contrary. Even if there were such a right, in view of this record we do not believe that appellant could prevail under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). We overrule the sixth point of error.
CONCLUSION
Having overruled all of appellant's points of error, we affirm the trial-court decrees terminating Ms. Leon's parental rights to the six named children.
Bea Ann Smith, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: April 1, 1999
Do Not Publish
1. Cause No. 94-0789 concerned five children ages 20 months to 15 years: Ramiro Rodriguez,
Jr., Maria Antonia Leon, Adrian Christopher Leon, Ashfin Andrew Sustaita, and Irene Shanta
Velasquez. In that cause the trial court terminated the parental rights of Ms. Leon and of three
alleged fathers: Ramiro Rodriguez, Sr., Oswaldo Leon, and Susana Habbie. Cause No. 98-0006
concerned a five month old infant, Chasidy Leon, whose father was unknown. In that cause the
trial court terminated the parental rights of Ms. Leon. Only Ms. Leon appeals the termination of
the parent-child relationships.
2. Litigants are entitled to not less than forty-five days' notice of the first trial setting. See Tex.
R. Civ. P. 245.
tors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), we find evidence that (1) one child asked the Department to terminate her relationship with appellant; (2) Ms. Leon's history of addiction and domestic abuse posed a past and future danger to her children; and (3) Ms. Leon's inability to remain in an alcohol-treatment program or attend parenting classes that were offered left her without any effective plans for learning to care for her children. Furthermore, appellant introduced no evidence that anyone, family members or others, could properly provide for the children's physical and emotional well being until she was released from prison. See Segovia v. Texas Dep't of Protective and Regulatory Servs., 979 S.W.2d 785, 787 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).
The caseworker assigned to these children testified that they had been in limbo for almost four years waiting for their mother to address her alcohol addiction, and that they needed permanency, hopefully leading to adoption. The ad-litem appointed to represent the interests of the children testified in favor of termination. This evidence is legally and factually sufficient to support the trial court's conclusion that termination was in the best interest of the six children. We overrule the fifth point of error.
Ineffective Assistance
Finally, appellant complains that she received ineffective assistance of counsel that violated her due process rights. Because the right to effective assistance of counsel is limited to defendants in criminal cases, litigants in parent-child termination proceedings are not entitled to this protection. See Arteaga v. Texas Dep't of Protective and Regulatory Servs., 924 S.W.2d 756, 762 (Tex. App.--Austin 1996, writ denied); Krasniqi v. Dallas County Child Protective Servs. Unit, 809 S.W.2d 927, 932 (Tex. App.--Dallas 1991, writ denied), cert. denied, 503 U.S. 1006 (1992); Howell v. Dallas County Child Welfare Unit