Opinion issued May 11, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00997-CV
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IN THE INTEREST OF S.M.S. AND S.T.S., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2006-00355J
MEMORANDUM OPINION
Following a bench trial, the trial court terminated the parental rights of T.R.S.,
the alleged father, and M.M.C., the mother, to their two children, S.M.S. and S.T.S.
In separate appeals, the parents challenge the trial court’s judgment. We affirm.
BACKGROUND
The children first came into the care of the Texas Department of Family and
Protective Services in October 2005, following a referral for neglectful supervision.
The father did not appear at this stage of the proceeding. The Department and the
mother entered into a settlement agreement that contemplated a stair-step return of
the children to the mother’s custody and return of the children’s managing
conservatorship to the mother.
Following that settlement, the trial court signed a January 2007 judgment that
found the appointment of the mother as managing conservator would not be in the
children’s best interest, removed the children’s mother as their managing
conservator, and named the Department managing conservator. Pursuant to the
settlement agreement, the judgment further provided that the mother, as possessory
conservator, would have visitation, access, and possession of the children, who
would be returned to the mother by March 2007 upon her completion of
(1) psychiatric and drug evaluations; (2) proof that she had maintained a stable living
environment and employment; and (3) a home assessment. The judgment also
required the mother to continue to reside in Harris County until after the modification
was completed, and prohibited the children’s removal from Harris County without
the Department’s prior written approval.
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The record contains certificates of a paternity registry search reporting no
notice of intent to claim paternity with respect to each child. The father claimed he
was married to the mother before the children were born, but searches did not reveal
any marriage certificate. By time of trial, the father had not submitted to DNA
testing to prove his paternity.
Before the Department transferred managing conservatorship of the children
to the mother under the agreement, the mother and the children fled Texas with the
father. The mother did not seek or receive written approval from the Department.
In arranging for the departure, the father furtively provided the younger child with a
cell phone and arranged to meet him at a school bus stop near the foster home where
he lived with several other children. When the parents picked up the child, they
threatened the other children waiting at the bus stop, telling them that they knew
where the children lived and that if the children didn’t want to be harmed, they
needed to keep their mouths shut.
For the next several years, the family lived “on the run” in a recreational
vehicle, traveling between Colorado, Utah, and New Mexico. They spent at least
one school year in Colorado but, when the school discovered that the elder child had
an undisclosed heath issue, the school counselor notified that state’s Child Protective
Services and the mother. After learning that Colorado CPS had been notified, the
parents packed the RV and left the area with the children in tow. Eventually, the
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family came to the attention of authorities in New Mexico, where the Department
took the children back into custody. The Department then moved to modify or,
alternatively, terminate the parental rights to the children.
Neither the mother nor the father appeared at trial. Through telephone
conversations with their attorneys, they claimed to be unaware of the trial date.
Based on these claims, counsel sought a continuance, which the trial court denied.
At trial, the father’s counsel conceded that the father had not submitted to
DNA testing. The father is identified on S.M.S.’s birth certificate as her father, but
not on S.T.S.’s birth certificate. The Texas Department of State Health Services
confirmed that no father claimed paternity and no evidence in the record
demonstrates that the father ever married the mother or undertook any effort to
establish legal paternity.
FATHER’S APPEAL
The trial court terminated the father’s parental rights pursuant to section
161.002, which allows for termination if (1) after being served with citation, the
alleged father “does not respond by timely filing an admission of paternity or a
counterclaim for paternity” or (2) when the child is over one year of age at the time
the petition for termination of the parent-child relationship is filed, he has not
registered with the state paternity registry and, after the exercise of due diligence by
the Department, “his identity is known but he cannot be located.” TEX. FAM. CODE
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ANN. § 161.002(b)(1), (b)(2)(B) (West Supp. 2016). The father concedes that the
evidence is legally and factually sufficient to support termination of his parental
rights under subsection (b)(1), but contends that it is not sufficient to support
termination under subsection (b)(2)(B). Subsections 161.002(b)(1) and
161.002(b)(2), however, provide alternate grounds for termination; in other words,
a finding under either subsection (b)(1) or subsection (b)(2) provides a sufficient
predicate for termination as long as the evidence also supports the trial court’s
finding that termination is in the children’s best interest. See TEX. FAM. CODE ANN.
§ 161.002(b) (listing four possible predicate grounds for termination of an alleged
biological father’s parental rights, identified as alternate grounds by use of “or”
between subsections (3) and (4)). In light of the father’s concession, therefore, we
need not consider whether the evidence is legally and factually sufficient to support
the trial court finding under section 161.002(b)(2)(B). See In re A.V., 113 S.W.3d
355, 362 (Tex. 2003).
The father also contends that the evidence is legally and factually insufficient
to support the trial court’s finding that termination of his parental rights is in the
children’s best interest. In conducting a legal-sufficiency review in a parental-rights-
termination case brought by the Department, we look at the entire record to
determine whether the evidence, viewed in the light most favorable to the finding, is
such that a reasonable factfinder could have formed a firm belief or conviction about
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the truth of the matter on which the Department had the burden of proof. In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We “assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so,” and we
“disregard all evidence that a reasonable factfinder could have disbelieved or found
to have been incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) per curiam)
(quoting In re J.F.C., 96 S.W.3d at 266). We also remain mindful of any undisputed
evidence contrary to the finding and consider that evidence in our analysis. Id. If
we determine that no reasonable factfinder could form a firm belief or conviction
that the matter that must be proven is true, we must hold the evidence to be legally
insufficient and render judgment in favor of the parent. In re J.F.C., 96 S.W.3d at
266.
In conducting a factual-sufficiency review in a parental-rights termination
case, we determine whether, considering the entire record, including evidence both
supporting and contradicting the finding, a factfinder reasonably could have formed
a firm conviction or belief about the truth of the matter on which the Department
bore the burden of proof. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider
whether the disputed evidence is such that a reasonable factfinder could not have
resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at
266–67. “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
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factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)
(per curiam) (quoting In re J.F.C., 06 S.W.3d at 266).
There is a strong presumption that the best interest of the child will be served
by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d 256, 294 (Tex.
2002); see TEX. FAM. CODE ANN. § 153.131(b) (West 2014). Prompt and permanent
placement of the child in a safe environment is also presumed to be in the child’s
best interest. TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016).
The factfinder should consider a number of factors to determine the best
interest of the child, including
• the desires of the child,
• the present and future physical and emotional needs of the child,
• the present and future physical and emotional danger to the child,
• the parental abilities of the people seeking custody,
• programs available to assist those people in promoting the best interest
of the child,
• plans for the child by those people or by the agency seeking custody,
• stability of the home or proposed placement,
• the acts or omissions of the parent that may indicate that the existing
parent-child relationship is not appropriate, and
• any excuse for the acts or omissions of the parent.
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Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). In some cases, undisputed
evidence of only one of these factors may be enough to support a finding that
termination is in the best interest of the child; in other cases, there could be “more
complex facts in which paltry evidence relevant to each consideration mentioned in
Holley would not suffice” to support termination. See In re C.H., 89 S.W.3d at 27.
The children are teenagers and old enough to express their desires. The
younger child is doing well in a safe adoptive placement. The elder child has been
diagnosed with dissociative disorder and mild intellectual disability. She is currently
in a foster home and also wishes to be adopted. The Department confirmed that it
will look for a prospective adoptive family for her.
The record demonstrates that the parents did not meet the children’s physical
and emotional needs. For ten years of their childhood, the children lived on the run
with their parents. The family would move every time the children started to become
comfortable at the school they were attending.
The children told their caseworker that the parents do not take care of their
needs properly. The father made the children beg for money from strangers at truck
stops so the family could buy food. This evidence shows that the father lacks the
parenting skills necessary to keep the children emotionally and physically safe and
weighs in favor of termination.
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The evidence also shows that father placed the children in an environment of
physical and emotional danger. The children witnessed the father becoming
physically violent toward their mother and, on at least one occasion, hitting her and
dragging her by her hair. During another argument between their parents, the
children witnessed their father dousing himself with lighter fluid. The elder child
expressed fear for her and her brother’s safety if they were to be returned to their
parents.
When the father picked up the younger child from the bus stop before
absconding with him, he threatened the other children waiting there, in a manner so
severe that the foster home where those children resided had to be closed. The father
tried to intimidate the caseworker by claiming that he knew members of a Mexican
cartel who knew who she was and that they would be looking for her. The
caseworker interpreted this claim as a threat of personal physical harm. The father’s
behavior in these incidents show a propensity toward coercive and potentially
violent behavior. This evidence weighs in favor of termination.
The father made no effort to improve his parenting skills by participating in
the services required by the family service plan. He did not complete any of the
services required under the plan. He did not submit to DNA testing to establish
paternity. Though he discussed the services plan with the caseworker, he did not
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submit to drug testing or the psychological examination that the Department had
scheduled for him.
Based on this evidence, we hold the trial court could reasonably have formed
a firm belief or conviction that termination of the father’s parental rights is in the
children’s best interest. We further hold that any disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is not so significant that the
trial court could not reasonably have formed a firm belief or conviction that
termination of the father’s parental rights is in the children’s best interest.1
MOTHER’S APPEAL
In a single issue, M.M.C. contends that the trial court lacked personal
jurisdiction over her, making the trial court’s ruling terminating her parental rights
void. “Whether a court has personal jurisdiction over a nonresident defendant is a
question of law, which we review de novo.” Zinc Nacional, S.A. v. Bouche Trucking,
Inc., 308 S.W.3d 395, 397 (Tex. 2010) (citing BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). Unlike subject-matter jurisdiction, the
lack of personal jurisdiction may be waived. See Burger King Corp. v. Rudzewicz,
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The father also claims that the Department failed to prove in its motion to modify
that there had been a material and substantial change since the prior order was
rendered. See TEX. FAM. CODE ANN. § 156.101(a)(1) (West 2014). The prior order,
however, does not address the father’s parental rights; he did not appear in those
proceedings and was not a party to the 2007 settlement agreement. Because the
father has not shown that he is “a party affected by the order,” the material and
substantial change requirement does not apply. See id.
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471 U.S. 462, 472 n.14, 105 S. Ct. 2174, 2182 n.14 (1985) (“[T]he personal
jurisdiction requirement is a waivable right . . . .”).
As grounds for her contention, the mother claims that the Department failed
to personally serve her with its second motion to modify, which included a cross-
claim for termination of parental rights. The record does not support that claim. The
Department’s motion includes a certificate of service showing that the motion was
served on the mother’s attorney of record pursuant to Texas Rule of Civil Procedure
21a. Service on an attorney of record is presumed to constitute service on the client,
unless the record contains affirmative proof that the client did not authorize her
attorney to act on her behalf. See, e.g., City of Roanoke v. Town of Westlake, 111
S.W.3d 617, 629–30 (Tex. App.—Fort Worth 2003, pet. denied) (applying
presumption in context of settlement). Nothing shows that the mother’s attorney
lacked authority to accept service on her behalf, and neither the mother nor her
attorney disputed the regularity of the motion’s service in the trial court.
Moreover, the record shows that the mother waived any challenge to personal
jurisdiction by making a general appearance in the proceeding. Generally, by
appearing before the court, a party indicates that she submits to the court’s
jurisdiction. See TEX. R. CIV. P. 120; Mays v. Perkins, 927 S.W.2d 222, 225 (Tex.
App.—Houston [1st Dist.] 1996, no writ). To determine if a defendant appeared,
we consider the nature and quality of the defendant’s activities before the trial court.
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See Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex. App.—Amarillo 1984,
no writ). The Texas Supreme Court has held that any one of three categories of
activities constitutes a general appearance: (1) the defendant invokes the judgment
of the court on any question other than the court’s jurisdiction; (2) the defendant
recognizes by its acts that an action is properly pending; or (3) the defendant seeks
affirmative action from the court. See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302,
304 (Tex. 2004) (per curiam).
The mother generally appeared by filing a May 2007 motion to modify the
judgment to reappoint her as managing conservator. That motion recites, “The Court
has continuing, exclusive jurisdiction of this suit.” In addition, the mother actually
participated in the proceeding through counsel. Before the termination proceeding
started, the mother’s attorney represented to the trial court that he had been in contact
with the mother and requested a continuance so that she could be present during the
proceedings. When the trial court refused that request, counsel cross-examined
witnesses, interposed objections, made affirmative requests on behalf of the mother,
and presented argument in her defense during the proceeding. Counsel’s actions
indicate his authority to act on the mother’s behalf, and the mother did not challenge
counsel’s appearance in a post-trial motion. The record thus supports the exercise
of personal jurisdiction over her and further shows that the mother waived any
challenge to personal jurisdiction.
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CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Higley, Bland, and Brown.
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