NO. 07-07-0489-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 17, 2008
______________________________
In the Interest of R.L.M., B.M.M., C.M., J.N.M., J.A., T.T. and J.J.R.
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2005-532,950; HON. KEVIN HART, PRESIDING
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Memorandum Opinion
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Juaquin Martinez a/k/a Juaquin Martinez, Jr., appeals an order terminating his parental rights to four of his children, B.M.M., C.M., J.N.M., and J.J.R. In doing so, he challenges the legal and factual sufficiency of the evidence to support the finding that termination of those rights is in the best interest of the children.
Applicable Law
The applicable standards of review are discussed in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) and In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We refer the parties to those cases.
Next, in making our review, consideration of various indicia which have become known as the Holley factors is useful. Those factors include 1) the desires of the children, 2) the emotional and physical needs of the children now and in the future, 3) the emotional and physical danger to the children now and in the future, 4) the parental abilities of the individuals seeking custody, 5) the programs available to assist those individuals to promote the best interest of the children, 6) the plans for the children by those individuals seeking custody, 7) the stability of the home, 8) the acts or omissions of the parent indicating that the existing parent/child relationship is not a proper one, and 9) any excuse for the acts or omissions of the parent. In re P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.– Amarillo 2003, no pet.). Moreover, it is not necessary to show that each factor favors termination, id. at 780, and the list is not exhaustive. In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.–Amarillo 2003, pet. denied). There must simply be enough evidence from which the factfinder can reasonably form a firm belief or conviction that the child’s best interest justifies termination. In re P.E.W., 105 S.W.3d at 780.
Application of the Law to the Record
Before the court was the following evidence: 1) appellant had been incarcerated for burglary of a habitation during the entire time his children had been in foster care and had been unable to support them, 2) appellant was originally placed on probation for that offense but had his probation revoked for multiple violations including testing positive for cocaine on multiple occasions, drinking beer and registering above the legal limit on a portable breath device, failing to report, failing to maintain stable employment, failing to attend AA and complete a substance abuse assessment, failing to complete an anger management program, and failing to complete an alcohol offender’s program, 3) prior to having his probation revoked, appellant was placed in a community corrections facility for one year for probation violations, 4) appellant violated his probation by drinking and using cocaine because he didn’t think he would be sent to the penitentiary and he didn’t think about what might happen to his children if he was sent to prison, 5) appellant had previously been convicted of evading arrest or detention and securing documents by deception and charged with the offense of terroristic threat, 6) appellant had used cocaine since he was eighteen and admitted “you are not thinking” when one uses cocaine, 7) when he was incarcerated, appellant left his children with his wife, who was unemployed, and his father knowing that both of them had used cocaine and that during the course of his marriage, his wife would periodically leave the home without notice and be gone for weeks or years during which time she had children by other men and used drugs, 8) appellant has twice been denied parole and may not be released from incarceration until September 2009, 9) appellant had an altercation with his wife in which the police were called and appellant admitted he kicked the door and punched the wall although he denied hitting his wife with an object, 10) appellant’s father tested positive for cocaine when the children were placed with him by the State, 11) appellant’s mother did not pass a home study test for placement of the children with her, 12) appellant’s older daughter (not the subject of this proceeding) moved in with her boyfriend at the age of fourteen or fifteen, 13) the maternal grandmother passed a home study for placement of the children with her on the condition that she and her boyfriend obtain counseling, and she is willing to consider adoption, 14) two of the children expressed their desire to remain together and stay on a long-term basis with their maternal grandmother, 15) the children were behind in school due to their unstable lifestyle in the past but have made improvements while in foster care, and 16) financial programs would be available to the maternal grandmother for the benefit of the children if she adopted the children.
Appellant does not challenge the statutory grounds for termination found by the trial court. Per those findings, the court determined that appellant 1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, 2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children, and 3) knowingly engaged in criminal conduct that resulted in his conviction of an offense and imprisonment and inability to care for the children for not less than two years from the date of filing the petition by the State. Evidence supporting the existence of those statutory grounds may be used to support a finding that the best interest of the children warrants termination of the parent/child relationship. In re C.H., 89 S.W.3d at 28; In re P.E.W., 105 S.W.3d at 771. Given the lack of a challenge to the statutory grounds justifying termination and the evidence recited above, the trial court could have formed a firm belief or conviction that termination of appellant’s rights was in the best interests of the children. In re T.A.A.V., No. 07-07-0034-CV, 2007 Tex. App. Lexis 7350 at *8 (Tex. App.–Amarillo September 6, 2007, no pet.).
Admittedly, appellant had written letters to his children regularly while incarcerated and completed some parenting education in prison. The children also expressed a desire for their father’s rights not to be terminated. Yet, the court found that it was important that the children stay together and at least have the possibility of adoption by their maternal grandmother. Moreover, appellant had the opportunity to foster his parental relationship with his children but opted to engage in criminal activity and other conduct detrimental to that relationship. And, a factfinder is entitled to view past conduct as indicative of future conduct. Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.–Austin 2004, pet. denied). So upon considering the entire record, we cannot say that a rationale fact finder could not develop a firm conviction and belief that termination of the parental relationship was in the best interest of the children.
Because the evidence of record is both legally and factually sufficient to support the court’s decision, we overrule appellant’s issue and affirm the judgment.
Brian Quinn
Chief Justice
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NO. 07-09-0392-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
APRIL 11, 2011
______________________________
BETTY DOMINGO, APPELLANT
V.
CINDY SKIDMORE, DONNA WALKER, ESTELLA BARRON,
BRENDA MITCHELL, GINA SCHULTZ, SHARLA PIERCE, AND
LGROUP, A TEXAS GENERAL PARTNERSHIP, APPELLEES
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FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-535,854; HONORABLE LES HATCH, JUDGE
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Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER TO SHOW CAUSE
Appellant, Betty Domingo, brings this appeal contending the trial court erred by entering judgment in favor of Appellees, Cindy Skidmore, Donna Walker, Estella Barron, Brenda Mitchell, Gina Schultz, and Sharla Pierce, following a jury trial. For the reasons to follow, we order Domingo to show cause why this appeal should not be dismissed for want of jurisdiction.
Background Facts[1]
On January 16, 2007, in trial court cause number 2006-535,854, the trial court signed and entered an order granting Mitchell's motion for summary judgment as to Domingo's breach of contract cause of action. The same day, the trial court signed and entered an order severing all other claims into a separate action, with a "new cause number" on the docket of the trial court, thereby making its January 16th summary judgment order a final and thus, appealable order. On May 21, 2008, we reversed the order of the trial court and remanded Domingo's breach of contract cause of action against Mitchell to the trial court for further proceedings.
Although the clerk's record does not contain a copy of an order consolidating the severed claims back into the underlying cause of action, the docket sheet appearing at page 2 of the clerk's record does reflect that an order consolidating cause number 2006-535,854 and cause number 2006-535,854-A[2] was signed on February 6, 2009. On October 26, 2009, cause number 2006-535,854 was presented to a jury. Based upon the jury's verdict, on November 20, 2009, the trial court entered a judgment that Domingo take nothing by this suit as to Cindy Skidmore, Donna Walker, Estella Barron, Brenda Mitchell, Gina Schultz, and Sharla Pierce. Domingo has appealed that judgment. That judgment does not, however, address Domingo's claims against the LGroup, a Texas general partnership.
Interlocutory Appeal
At the outset, this Court is obliged to determine, sua sponte, issues affecting our jurisdiction over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990). As a general rule, a judgment must be final before it can be appealed. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex 2001). A judgment is not final for purposes of appeal unless it disposes of all parties and issues. North E. Indep. School Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).
Because the judgment does not address Domingo's claims against the LGroup, this appeal appears to be interlocutory. Accordingly, the Court directs Domingo to show cause, on or before April 26, 2011, why this appeal should not be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).
Per Curiam
[1]Because the background facts of this case are more fully set forth in the opinion of this Court entered in cause number 07-07-0038-CV, we make reference only to those facts pertinent to this order.
[2]Although we have no indication what the pleadings were in cause number 2006-535,854-A, we assume they were the claims previously severed out of cause number 2006-535,854 on January 16, 2007.