COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00085-CV
IN THE INTEREST OF J.G., D.G.,
AND C.G., CHILDREN
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
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OPINION
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I. Introduction
Appellants J.C. and C.C. appeal the trial court’s denial of their petition to
adopt three children, J.G., D.G., and C.G. Appellants contend in three issues
that the trial court abused its discretion by denying their petition, by misapplying
the best interest of the child standard, and by denying their appeal of the visiting
judge’s order. No appellee’s brief was filed in this appeal. We reverse and
remand.
II. Background
C.C. is the biological mother of the three children, but her parental rights to
the children were terminated by court order in December 2007. After C.C.’s
parental rights were terminated, the children’s great-grandparents were named
as the children’s permanent managing conservators. 1 The final order of
termination states that C.C. did not appear for trial either in person or through
counsel.
Appellants were married on August 22, 2009. They filed this suit for
adoption of the three children on September 22, 2010. At the time of filing, the
children had lived with Appellants for more than two years.
Appellants both testified at the final hearing on November 23, 2011. C.C.
testified that she is married to J.C. and that she is the biological mother of J.G.,
D.G., and C.G. At the time of the final hearing, J.G. was fourteen, C.G. was
twelve, and D.G. was nine. C.C. testified that the three children had lived with
her and J.C. for at least six months before the commencement of the adoption
suit and that the three children resided with her and J.C. at the time of the final
hearing.
1
We refer to the children’s great-grandparents/permanent managing
conservators individually as Grandmother or Grandfather and collectively as
Grandparents. See generally Tex. R. App. P. 9.8.
2
C.C. testified that her parental rights to the three children had been
terminated by a court in 2007 and that drugs, specifically methamphetamines,
were a problem for her at the time. The parental rights of the children’s biological
father had been terminated at the same time. C.C. testified, though, that her
“whole life has changed,” that she and J.C. now regularly participate in their
church, that they teach and work with children, that she and J.C. had each been
tested for drug use at the beginning of this case, and that the results were
negative. C.C. testified that she was asking the court to grant an adoption of all
three children by Appellants and that adoption would be in the children’s best
interest. 2
At the end of C.C.’s testimony, the trial court asked C.C. who had initiated
the suit to terminate her parental rights, and C.C. testified that she believed it to
be CPS. C.C., however, denied having received any court papers related to the
termination case, testifying that her grandparents had contacted her to say that
her rights had been terminated. But in response to another of the trial court’s
questions, C.C. also said that she had received a service plan for the CPS case.
When the trial court asked why CPS had gotten involved in her life, C.C. testified
that she had been using drugs.
J.C. then testified and basically reiterated C.C.’s testimony, including that
he believed adoption was in the children’s best interest. At the conclusion of
2
C.C. also testified that she was asking the court to change the children’s
last names.
3
J.C.’s testimony, the trial court expressed its opinion that C.C. had not been as
forthcoming with her testimony about the CPS case as the court had hoped she
would be and asked counsel to provide the court with the paperwork from the
termination case. Among other things, the trial court stated that “using drugs isn’t
what it takes to get CPS in your life. Using drugs and a problem with your
children is what gets CPS in your life.” The trial court later stated that it was
“going to know what went on with the children beforehand before I let this lady
who gave them up adopt them.” 3
Several other documents were in the trial court’s file at the time of the final
hearing and are included in the clerk’s record in this appeal. Among them are
waivers of citation and consents to adoption filed by Grandmother and
Grandfather, who were still serving as the children’s permanent managing
conservators. In those documents, Grandmother and Grandfather each
expressly consented to the children’s adoption by Appellants.
Also within the court’s file was a report prepared by Sandy Russell, the
person the trial court had appointed as “evaluator to make and prepare a
preadoptive social study and postplacement adoptive social study to evaluate the
parties.” Russell filed her report with the trial court in January 2011, almost ten
months before the final hearing.
3
The documents relating to the 2007 termination case are not included
within the appellate record.
4
Russell’s report states that Grandmother “started letting the children see
their mother once [Grandmother] saw that [C.C.] was changing her life,” that
Appellants lived next door to Grandparents, and that the children had resided
with Appellants since July 2008. Russell also reported that “[a]ll three children
are in excellent health and [that] their immunizations are current.” Russell wrote
that C.C. does not work outside the home and that she is at home when the
children return from school each day. C.C. is also “very active in the church” and
“teaches a children’s class.” Russell also reported that “[a]ll of the children stated
they want this adoption very much.”
Russell’s report also includes a favorable description of J.C. as well as
Appellants’ home environment. Among other things, Russell reported that
[J.C.] and [C.C.] provide a good family unit for their family.
The family is active in their church, the children’s athletic events[,]
and watching movies together. [C.C.] considers herself to be a
loving parent and states that the children are the most important
people in her life. Both parents stated that the children are very well
behaved and usually react well to verbal punishment and that they
usually use the grounding method. The children were interviewed
separately and all stated that they very much want the adoption.
They love being with their mom and stated [J.C.] is [a] good dad.
....
[The children] are healthy children who are glad to be reunited
with their mom and are lucky that [Grandmother] was able to keep
the family together and is still in their daily lives. [J.C.] loves them
and they appear to return his affections. [J.C.] and [C.C.] are aware
of how fast life can change and want to protect their family
emotionally as well as financially.
....
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[Grandmother] was interviewed by phone on January 7, 2011.
[She] states that she feels that [C.C.] has turned her life around[,]
and she sees how happy the children are on a daily basis. They
love their mom and [J.C.] very much. She stated when the children
were separated from their mom that they cried for her often.
[Grandmother] stated that she made the decision to let the children
live with their mom when she straighten[ed] her life up and became a
responsible parent again.
All references responded favorably and stated [J.C.] and
[C.C.] are good parents. They are active with their children in church
and school activities.
....
All three children are very healthy children who already
consider [J.C.] and [C.C.] as their parents. [J.C.]’s family is
committed to [the children] and has stated that this will remain
unchanged whether the adoption is approved or unapproved.
Adoption is recommended.
Attached to Russell’s report are responses to questionnaires that Russell had
sent to Appellants’ four references and a letter of recommendation from
Appellants’ pastor. The letter of recommendation and each of the questionnaire
responses contain very favorable descriptions of Appellants as parents.
On April 2, 2012, the trial court signed an order denying Appellants’
petition for adoption. The trial court’s findings of fact and conclusions of law are
dated June 6, 2012. The trial court’s findings of fact state that C.C.’s parental
rights to the children were terminated on December 14, 2007, following a suit
initiated by CPS; that Grandparents had been appointed as the children’s
permanent managing conservators; that Grandparents had permitted the children
to live with Appellants after December 14, 2007; and that Appellants had filed a
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petition for adoption of the children on September 22, 2010. The trial court’s sole
conclusion of law was that adoption of the children by Appellants “is not in the
best interest of the children.”
III. Discussion
In their first and second issues, Appellants contend that the trial court
abused its discretion by denying their petition for adoption and by misapplying
the best interest of the child standard.
A. Applicable Law
Family code section 162.016(b) states that “[i]f the court finds that the
requirements for adoption have been met and the adoption is in the best interest
of the child, the court shall grant the adoption.” Tex. Fam. Code Ann. §
162.016(b) (West 2008). The decision to grant or deny an adoption is within the
discretion of the trial court, and we may not set aside the decision except for
abuse of discretion. See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); In re
D.R.L.M., 84 S.W.3d 281, 305 (Tex. App.—Fort Worth 2002, pet. denied). To
determine whether a trial court abused its discretion, we must decide whether the
trial court acted without reference to any guiding rules or principles; in other
words, we must decide whether the act was arbitrary or unreasonable. Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,
838–39 (Tex. 2004). Legal and factual sufficiency are not independent grounds
of error in this adoption context, but they are relevant factors in deciding whether
the trial court abused its discretion. See D.R.L.M., 84 S.W.3d at 301. For this
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analysis, we consider whether the court had sufficient information upon which to
exercise its discretion and whether it erred in its application of that discretion.
See Newell v. Newell, 349 S.W.3d 717, 720–21 (Tex. App.—Fort Worth 2011, no
pet.).
B. Analysis
We begin by determining whether the trial court had sufficient information
upon which to exercise its discretion, and we hold that it did. In addition to
Appellants’ testimony, the trial court had each Grandparent’s waiver of citation
and consent to adoption, Russell’s report, and the attachments to Russell’s
report, all of which expressed support for Appellants’ petition to adopt the
children. This information was sufficient for the trial court to properly exercise its
discretion.
We next address whether the trial court erred in the application of its
discretion. Although the trial court did not base its denial of the petition for
adoption on a failure to establish the prerequisites to adoption and concluded
only that the adoption would not be in the children’s best interest, we note that it
appears that the prerequisites to adoption have been established. Family code
section 162.009 states that a child must reside with the petitioner for at least six
months before a court may grant an adoption unless the court determines that
waiver of the requirement would be in the child’s best interest. Tex. Fam. Code
Ann. § 162.009 (West 2008). Both C.C. and J.C. testified that the children had
lived with them for more than six months. Family code section 162.010 requires
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the consent of a child’s managing conservator if the managing conservator is not
the petitioner, and each of the children’s managing conservators filed their
consent to the adoption by Appellants. See id. § 162.010 (West 2008). There is
also a pre-adoptive and post-placement social study by Russell on file with the
trial court as required by family code section 162.003. See id. § 162.003 (West
2008); see also id. §§ 162.005, .007 (West 2008).
Turning now to the trial court’s conclusion that adoption by Appellants
would not be in the children’s best interest, we note that the circumstances of this
case are quite similar to those in In re D.D.T., No. 11-04-00022-CV, 2005 WL
283579, at *1–2 (Tex. App.—Eastland Jan. 31, 2005, no pet.) (mem. op.). In
D.D.T., Jones, a single woman with four other children, sought to adopt two boys.
Id. at *1. The boys had lived with Jones and her other children for twenty
months, and the record included a home study, a social study, a criminal
background check, and similar items. Id. Jones testified in support of her
petition to adopt the boys, and the trial court also asked to hear testimony by
CPS adoption specialist Sherilyn Money. Id. Money testified that she was
familiar with Jones and the case file, and she recommended that the trial court
grant the adoption by Jones. Id.
The D.D.T. court summarized the next part of the adoption hearing as
follows:
The trial court then questioned Money about the availability of
couples who wanted to adopt children and the details surrounding
that situation. The trial judge commented on the record that it was
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his impression that there were “just lots and lots and lots of couples
waiting to adopt children,” and that he was personally acquainted
with couples who had paid as much as $25,000 or $30,000 to “adopt
a Russian child or Chinese child.” The trial judge told Money that he
was not “arguing with [her] assessment that Jones is an appropriate
placement.” However, the trial judge “wonder[ed] why these children
cannot be placed in the home [of] a couple who are able to meet the
financial needs of these children.” Money then told the trial court
that the children were hard to place children and that they had
become “attached by the time the termination was done. And it
would be very difficult to move them out of this home.”
Id. After initially stating that it would grant the adoption, the trial court changed
course and announced that the adoption would be denied. Id. at *1–2.
Addressing Jones’s sole issue on appeal—that the trial court erred by
denying the petition for adoption “because all of the evidence was uncontroverted
and supported the adoption”—the D.D.T. court held that the trial court abused its
discretion by denying the petition for adoption. Id. at *3. In so holding, the court
wrote,
Nothing in the 13-page clerk’s record or in the 11-page
reporter’s record in this case supports the trial court’s decision. All
of the evidence of record in the case was in support of Jones’s
petition for adoption of DDT and BDT. The implied findings of fact
are not supported by any evidence of substantive and probative
character. Even if there were some evidence to support the implied
findings, the implied findings are against the great weight and
preponderance of the evidence, as outlined above; and the trial
court abused its discretion when it denied the petition for adoption.
Id.
Here, the Grandparents, who are also the children’s permanent managing
conservators, supported the adoption; the court-appointed evaluator
recommended adoption; all of Appellants’ references supported their petition for
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adoption; and the children’s attorney ad litem supported the petition for adoption.
The trial court seemed to believe that C.C. was not entirely truthful in responding
to questions about the prior parental termination case, stating that C.C. must
have been served with the suit before her parental rights had been terminated
and questioning C.C. about her past drug use. It is possible, however, that C.C.
did not understand the trial court’s question about service of process or that the
trial court misinterpreted C.C.’s answer. C.C. testified that she “wasn’t present
whenever [her] rights were terminated” and that her grandparents contacted her
to tell her that her rights had been terminated. But C.C. also testified that she
received “court papers” and that the papers told her “that [she] needed to take
some classes and different things that were ordered from CPS.” It thus appears
that C.C. received at least a service plan in the termination case.
We as an appellate court are not free to judge the credibility of the witness
or to substitute our judgment for that of the trial court, and we do not purport to
do so by pointing out the possible misunderstanding of C.C.’s testimony. See
Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290 (Tex. App.—Dallas 2012,
no pet.) (“Under an abuse of discretion standard, the trial court judges the
credibility of the witnesses and may resolve any conflicting testimony.”).
However, whether C.C. misunderstood the trial court’s question or whether the
trial court misinterpreted C.C.’s answer about being served in the parental
termination case, that series of questions and answers is the only evidence that
weighs in favor of denying Appellants’ petition for adoption. Otherwise, C.C.
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acknowledged that her prior drug use led to the termination of her parental rights,
but she also testified that she had turned her life around and no longer uses
drugs. All of the other information and evidence before the trial court
overwhelmingly weighed in favor of granting the petition for adoption. No one
opposed adoption, and the children each expressed a strong desire to be
adopted by Appellants. We therefore hold that the trial court abused its
discretion by concluding that adoption is not in the children’s best interest
because the evidence supporting the trial court’s finding is against the great
weight and preponderance of the credible evidence contrary to the finding. See
D.D.T., 2005 WL 283579, at *3 (holding trial court’s implied findings in adoption
case against great weight and preponderance of the evidence). Thus, although
the trial court had sufficient evidence before it upon which to exercise its
discretion, the trial court erred in the application of its discretion. See id.; see
generally Newell, 349 S.W.3d at 720–21 (“In determining whether there has been
an abuse of discretion because the evidence is legally or factually insufficient to
support the trial court’s decision, we consider whether the court had sufficient
information upon which to exercise its discretion and whether it erred in its
application of that discretion.”). We therefore sustain Appellants’ first and second
issues and do not reach their third issue. 4 See Tex. R. App. P. 47.1.
4
Appellants’ third issue would not entitle them to any additional relief from
this court even if we sustained it.
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We cannot, however, render judgment for Appellants because they had the
burden of proof in this adoption proceeding, and we cannot hold that they proved
as a matter of law that adoption is in the children’s best interest. The series of
questions by the trial court and answers by C.C. is some evidence, albeit
factually insufficient evidence, that adoption is not in the children’s best interest.
See D.D.T., 2005 WL 283579, at *3 (remanding for new trial because petitioner
seeking adoption bore burden of proof but did not conclusively prove elements
necessary to adopt). We therefore remand the case to the trial court for a new
trial.
IV. Conclusion
Having sustained Appellants’ first and second issues and having not
reached their third issue, we reverse the trial court’s judgment and remand the
matter for a new trial on Appellants’ petition for adoption.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J., filed a dissenting opinion.
DELIVERED: September 12, 2013
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