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NUMBER 13-01-388-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
IN THE INTEREST OF A.L., M.L., AND P.M., MINOR CHILDREN
On appeal from the 267th District Court
of Victoria County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Opinion by Justice Castillo
Appellant Joe Longoria appeals from a trial court order terminating his parental rights in reference to three children. In a single issue, appellant argues that the trial court erred in terminating his parental rights because he demonstrated an ability to vicariously care for his children. We affirm.
Facts
Longoria is the father and sole parent of three minor children, A.L., M.L., and P.M.[1] He is currently an inmate serving two concurrent 99-year prison sentences with the Texas Department of Criminal Justice-Institutional Division. In 1995, the Texas Department of Protective and Regulatory Services (ATDPRS@) sought and was awarded temporary managing conservatorship of the three children due to the threat to the children=s physical and emotional health posed by Longoria and his wife.[2] The children have remained in TDPRS custody since 1995. Amended ASuit Affecting the Parent-Child Relationship@ (ASAPCR@) petitions were filed on February 5, 1997, and June 17, 1999, seeking termination of Longoria=s parental rights on several grounds.[3] On July 19, 1999, a hearing was held on the June 17, 1999 petition. At that hearing, the request to terminate Longoria=s parental rights was denied. The parental rights of the children=s mother were terminated, and TDPRS was appointed sole managing conservator of the children. Longoria was appointed possessory conservator.
TDPRS subsequently filed what it titled a AThird Amended Petition@ seeking to terminate Longoria=s parental rights on November 3, 2000.[4] Pursuant to the November 3, 2000 petition, a termination hearing was held on May 15, 2001. The trial court found that Longoria had engaged in criminal conduct that resulted in his imprisonment for not less than two years,[5] and found that termination was in the best interest of the children[6] citing Longoria=s failure to demonstrate an ability to care for his children during his absence. An order terminating Longoria=s parental rights was entered on May 24, 2001.
Jurisdiction
We first must address our jurisdiction to hear this appeal. There is a jurisdictional question in this case because there was no dismissal date set at the July 19, 1999 hearing for termination of Longoria=s parental rights. Such a dismissal date is explicitly required by section 263.401 of the family code for the trial court to retain jurisdiction. Tex. Fam. Code Ann. ' 263.401 (Vernon Supp. 2002). We requested that both parties submit a brief to us on this issue, and both complied with this request.
The trial court entered the initial order awarding temporary managing conservatorship to TDPRS in 1995. The awarding of temporary managing conservatorship to TDPRS is governed by section 263.401 of the family code. Tex. Fam. Code Ann. ' 263.401 (Vernon Supp. 2002). Section 263.401, enacted on September 1, 1997, states in relevant part that:
Unless the court has rendered a final order or granted an extension under Subsection (b), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.
Tex. Fam. Code Ann. ' 263.401(a) (Vernon Supp. 2002). In enacting section 263.401, the Texas Legislature specifically stated that it was retroactively applicable to cases filed before the enactment of that section:
SECTION 14. (a) The change in law made by this Act takes effect January 1, 1998. (b) Except as provided by Subsection (c) of this section, this Act applies to a pending suit affecting the parent-child relationship regardless of whether the suit was commenced before, on, or after the effective date of this Act.
Act of Sept. 1, 1997, 75th Leg., R.S., ch. 603, '14, 1997 Tex. Gen. Laws 603.
Subsection (c) states that:
If the Department of Protective and Regulatory Services has been appointed temporary managing conservator of a child before January 8, 1998, the court shall at the first hearing conducted on or after that date under Chapter 263, Family Code, establish a date for dismissal of the suit not later than the second anniversary of the date of the hearing, unless the court has rendered a final order before the dismissal date.
Act of Sept. 1, 1997, 75th Leg., R.S., ch. 603, '14, 1997 Tex. Gen. Laws 603.
We interpret the statute that is clear and unambiguous by looking at the plain meaning of the statute=s words. St. Luke=s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997); Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). We must take the statute as we find it, and seek to implement a true and fair interpretation of the law as it was intended by the legislature. Albertson=s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999). We may deviate from following the plain meaning of the statute where it produces absurd results or when doing so would be obviously contrary to the legislature=s intent. Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134 (Tex. 1994); Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991). The intent of the legislature in enacting section 263.401 was to carry out the recommendation of the Governor=s Committee that parental rights be terminated, or the families reunified, within twelve months of the appointment of a temporary administrator. In re Bishop, 8 S.W.3d 412, 417 (Tex. App.BWaco 1999, orig. proceeding).
As the legislature ordered in chapter 603 section 14(a), family code section 263.401 applies retroactively to the instant case even though it was filed before the effective date of the section. Act of Sept. 1, 1997, 75th Leg., R.S., ch. 603, '14(a), 1997 Tex. Gen. Laws 603. However, since the order appointing TDPRS temporary managing conservator took place in 1995, at the time of the passage of section 263.401(a) on September 11, 1997, it would have been impossible for the trial court to have met its requirement that the trial court render a final order or dismiss within one year of the order appointing TDPRS temporary managing conservator, since well over a year had passed since the initial order. The legislature therefore created in section 14(3) of chapter 603 a different standard for analyzing the dismissal time required where TDPRS was appointed temporary managing conservator of the three children before January 8, 1998. This requirement states that the trial court Ashall at the first hearing conducted on or after that date under Chapter 263, Family Code, establish a date for dismissal of the suit not later than the second anniversary of the date of the hearing.@ Act of Sept. 1, 1997, 75th Leg., C.S., ch. 603, '14(c), 1997 Tex. Gen. Laws 603 (emphasis added). The placement of the word Ashall@ in the enactment indicates that this requirement is mandatory. See Tex. Gov=t Code Ann. ' 311.016(2) (Vernon 1998).
In this case, a hearing was held on July 19, 1999 concerning the termination of Longoria=s parental rights as well as the rights of the children=s mother, Laura. At that hearing, the trial court determined that Laura=s parental rights should be terminated, and that Longoria=s rights should not be terminated. An order to that effect was signed on January 24, 2000. Although no dismissal date was set at that hearing, as was required by chapter 263.401, the trial court did comply with the session law which allowed the court to alternatively render a final order on the termination of Longoria=s parental rights. The subsequent hearing on May 15, 2001, which related to the November 3, 2000 petition, had no relation to the court=s compliance with chapter 263.401(a), because a final order had already been rendered determining Longoria=s parental rights. With the filing of the new petition, the second amended petition was no longer relevant to the issue of jurisdiction, and the requirements of chapter 263.401 began anew as of the date that the November 3, 2000 petition was filed.
Therefore, we find that the order made pursuant to the November 3, 2000 petition was valid. Accordingly, we have jurisdiction to rule on this appeal.
Analysis
In appellant=s sole issue presented, he argues that the trial court erred in terminating his parental rights because he demonstrated an ability to vicariously care for his children through his sister.
Termination of parental rights is a drastic measure and is of such weight and gravity that due process requires that the petitioner seeking to terminate the parent=s rights justify the termination by clear and convincing evidence. Tex. Fam. Code Ann. ' 161.206(a) (Vernon Supp. 2002); In re A.R.R., 61 S.W.3d 691, 697 (Tex. App.BFort Worth 2001, pet. denied). Clear and convincing evidence should produce in the trier of fact Aa firm belief or conviction as to the truth of the allegations sought to be established.@ Tex. Fam. Code Ann. ' 101.007 (Vernon Supp. 2002). This is an intermediate standard of proof, falling between the preponderance of the evidence standard used in civil proceedings and the beyond a reasonable doubt standard applied in criminal trials. In re A.L.S., 74 S.W.3d 173, 177 (Tex. App.BEl Paso 2002, no pet. h.).
We construe appellant=s challenge to the termination of his parental rights as a challenge to the legal and factual sufficiency of the evidence to support the finding of the trial court that appellant was unable to care for the child for not less than two years due to his imprisonment. See Tex. Fam. Code Ann. ' 161.001(1)(Q)(ii) (Vernon Supp. 2002). In evaluating the legal sufficiency of a termination of parental rights, we apply the standard for legal sufficiency traditionally applied in civil trials. In re A.L.S., 74 S.W.3d 8 at 178 (citing Edwards v. Dep=t of Protective & Regulatory Servs., 946 S.W.2d 130, 137 (Tex. App.BEl Paso 1997, no writ)). We review the legal sufficiency challenge by considering all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party=s favor. Formosa Plastics Corp. v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 853 (Tex. App.BCorpus Christi 1999, pet. denied). A Ano evidence@ standard of review is applied when the party not bearing the burden of proof at trial challenges a finding of fact by arguing that the evidence is legally insufficient to support the finding. Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.BCorpus Christi 1990, writ denied). A legal sufficiency point may only be sustained when the evidence conclusively establishes the absence of a vital fact, the record discloses no more than a mere scintilla of evidence to prove a vital fact, or the court is bound by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact. Hines v. Comm=r for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.BCorpus Christi 2000, no pet.).
The standard of review for factual sufficiency of the evidence stemming from a case in which the burden of proof at trial was clear and convincing evidence is whether the evidence is such that a reasonable trier of fact could form a firm belief or conviction that grounds exist for termination. In re C.H., 45 Tex. Sup. Ct. J. 1000, 2002 Tex. LEXIS 113, *2 (Tex. July 3, 2002). We will reverse for factual sufficiency therefore only if we find that the trier of fact could not have reasonably formed such a firm conviction or belief. Id. at *27. This is a heightened standard of review, compared with that applied to an appeal stemming from a traditional civil trial. Id. at *22.
As previously noted, the trial court made a determination that Longoria=s rights not be terminated on July 19, 1999. TDPRS filed a subsequent petition for termination of Longoria=s parental rights on November 3, 2000. This relief was granted, and Longoria=s parental rights were terminated for the stated reason that:
This Court finds by clear and convincing evidence that JOE LONGORIA has knowingly engaged in criminal conduct that resulted in the parent=s imprisonment and inability to care for the children for not less than two years from the date of filing the petition.
The court further found that termination of the parent-child relationship was in the children=s best interest.[7]
Termination of the parent-child relationship due to criminal confinement of the parent is permitted under family code section 161.001(1)(Q), where the parent:
(Q) knowingly engaged in criminal conduct that has resulted in the parent=s:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing of the petition.
Tex. Fam. Code Ann. ' 161.001(1)(Q) (Vernon Supp. 2002). After a court has denied a petition to terminate parental rights, the parent=s rights may be subsequently terminated when the requirements of family code section 161.004 are met. That section provides that:
(a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:
(1) the petition under this section is filed after the date the order denying termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
(3) the parent committed an act listed under section 161.001 before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child.
Tex. Fam. Code Ann. ' 161.004 (Vernon Supp. 2002).
Under this rule, therefore, the trial court was permitted to consider evidence previously submitted regarding the termination of Longoria=s parental rights. Id. ' 161.004(b).[8]
We find that the evidence was sufficient to support the trial court=s termination of Longoria=s parental rights under the applicable standards for both legal and factual sufficiency. It is undisputed that Longoria is unable to care for the children himself due to his incarceration in prison under two concurrent 99-year sentences beginning on August 26, 1998.
Instead, Longoria relies on In re Caballero, a recent opinion issued by the Amarillo Court of Appeals holding that a parent who is incarcerated for more than two years may nonetheless demonstrate an ability to care for his child by showing that he can arrange to leave the child with someone else, thus satisfying his burden under section 161.001(1)(Q). In re Caballero, 53 S.W.3d 391, 391 (Tex. App.BAmarillo 2001, pet. denied). It is the parent, and not TDPRS, who has the burden to produce some evidence demonstrating the ability to care for the child by this proxy method. Id. Once the parent has presented some evidence demonstrating his ability to care for the child, TDPRS has the burden of proving that this arrangement is untenable. Id.
In respect to this burden, Longoria asserted to the trial court that his sister, Blanca Longoria, was capable of caring for the children. Blanca Longoria testified in court that she would be willing to care for the children while Joe Longoria was in prison, even though that would likely mean that she would keep them until their eighteenth birthdays.
However, TDPRS proffered evidence indicating that the arrangement proposed by Longoria would be untenable. TDPRS entered into evidence the results of a home study conducted between February 1996 and January 1997. The purpose of the home study was to analyze the home of Blanca Longoria for possible permanent placement for Longoria=s children. A Child Protective Services employee met with Blanca Longoria and Petra Longoria, Longoria=s elderly mother who lives with Blanca, on two occasions. The CPS employee further accompanied Blanca and Petra Longoria on an occasion in which they took the children to the zoo. The determination made as a result of this study was that the household was not recommended for placement of the children. Reasons given for this recommendation included: the insistence of the family that corporal punishment be used, the prior criminal history of Petra Longoria, the potential risks presented by contact with the children=s father, and the lack of long-term commitment to the children demonstrated by both Blanca and Petra Longoria.
Further, Kathryn Parsons-Key, a counselor working for Child-Family Adult Consultants, testified for TDPRS, stating that she had spoken with the children about the possible living arrangements for them. According to Parsons-Key, the children indicated that they were comfortable living with the foster family assigned by TDPRS, and that they preferred to remain there. Parsons-Key further testified that the children were not comfortable with the possibility of living with their relatives, because they Awouldn=t know when something might happen and then [they would] have to go through all of this again.@
Blanca Longoria herself testified that her fiancé and she already had four children living in their household; therefore, adding Longoria=s three children would create a situation in which they were caring for seven children, in addition to caring for Petra. Blanca Longoria also testified that Petra was not capable of caring for the children due to her health.
We find this evidence sufficient to meet the standards for legal and factual sufficiency, proving that Longoria=s proposal that Blanca care for the children would be untenable. Considering all the evidence in the light most favorable to the prevailing party, we find that the evidence does not conclusively establish the absence of a vital fact necessary to support the termination of Longoria=s parental rights, nor does the record disclose no more than a mere scintilla of evidence to prove a vital fact, nor are we bound by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact. Formosa Plastics, 960 S.W.2d at 48; Hines, 28 S.W.3d at 701. Further, we find that the evidence was such that a reasonable trier of fact could have formed a firm conviction that grounds exist for termination. In re C.H., 2002 Tex. LEXIS 113 at *2. Therefore, the trial court did not err in terminating Longoria=s parental rights under family code section 161.001(1)(Q) and its attendant case law. We overrule Longoria=s sole issue presented.
Conclusion
Accordingly, we affirm the judgment of the trial court.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 22nd day of August, 2002.
1 At the time of the trial in May of 2001, A.L. was 12 years old, M.L. was 10 years old, and P.M. was 8 years old. The mother of these three children, Laura Longoria, had her parental rights terminated on January 24, 2000.
2 Longoria was in prison at the time that TDPRS filed its initial petition. He was paroled in February 1997, and returned to prison on new charges in August of 1998.
3 The June 17, 1999 TDPRS petition alleged that Longoria:
Constructively abandoned the child(ren) . . . for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained sufficient contact with the children; and (3) the parent has demonstrated an inability to provide the children with a safe environment . . . and [Longoria has] knowingly engaged in criminal conduct that resulted in the parent=s imprisonment and inability to care for the child(ren) for not less than two years from the date of filing the petition.
4 The trial court noted that this was Alabeled, >Third Amended Petition,= but it is [in fact] a new petition.@ The document entitled AThird Amended Petition@ was filed under the same cause number as the previous petitions. A decision to not terminate Longoria=s parental rights had previously been made.
[5] See Tex. Fam. Code Ann. ' 161.001(1)(Q)(ii) (Vernon Supp. 2002).
[6] See Tex. Fam. Code Ann. ' 161.001(2) (Vernon Supp. 2002).
7 On appeal, appellant does not challenge the finding that termination of his parental rights was in the best interest of the children.
8 We note that, if the trial court was proceeding under this section, TDPRS had the additional burden at trial to produce evidence documenting a Asubstantial change@ in circumstances subsequent to the July 19, 1999 determination that Longoria=s rights not be terminated. However, appellant makes no argument in his brief that the evidence was insufficient to demonstrate this point, nor does he argue that the trial court erred in failing to make a specific finding that the circumstances had substantially changed following the July 19, 1999 hearing. Therefore, we do not address the sufficiency of any possible ' 161.004 requirements as to this case. See Tex. R. App. P. 38.1(h).