Opinion
04-22-00651-CV
03-08-2023
IN THE INTEREST OF E.L.S., a Child
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-02002 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Patricia O. Alvarez, Justice
In this parental rights termination case, the trial court terminated Dad's rights to his child E.L.S.[*] Dad challenges the legal and factual sufficiency of the evidence supporting the trial court's findings on statutory grounds (N) and (O), and the best interest of the child.
Because the evidence is legally and factually sufficient to support the findings on ground (N) and the best interest of the child, we affirm the trial court's order.
Background
In this case, the trial court terminated Mom's and Dad's rights to E.L.S. Because Dad is the only appellant, we limit our recitation of the facts to those relating to Dad and E.L.S.
When E.L.S. was born on November 4, 2021, Mom and E.L.S. tested positive for drugs, and E.L.S. suffered from withdrawal symptoms. She was cared for in the NICU, and on November 19, 2021, the Department petitioned to remove E.L.S. The trial court granted the petition, and the Department placed E.L.S. in a foster home.
The Department created a Family Service Plan for Dad-with a goal of family reunification-which the trial court approved on February 3, 2022. Despite Dad being incarcerated during the entire case, the Department's case worker reviewed Dad's progress with him monthly. As the case proceeded, the trial court held four status and permanency hearings. Then, at the September 13, 2022 trial on the merits, the trial court terminated Dad's parental rights to E.L.S.
Dad appeals. He challenges the legal and factual sufficiency of the evidence supporting the trial court's findings on grounds (N) and (O), and E.L.S.'s best interest. Before we address Dad's issues, we briefly recite the applicable evidentiary and appellate review standards.
Evidence Required, Standards of Review
"[I]n a bench trial, the judge as the trier of fact weighs the evidence, assesses the credibility of witnesses and resolves conflicts and inconsistencies." In re S.J.R.-Z., 537 S.W.3d 677, 691 (Tex. App.-San Antonio 2017, pet. denied); accord In re F.M., 536 S.W.3d 843, 844 (Tex. App.-San Antonio 2017, no pet.).
On review, an appellate court must not "substitute its own judgment for that of a reasonable factfinder." In re Commitment of Stoddard, 619 S.W.3d 665, 668 (Tex. 2020); accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
The evidentiary standard the Department must meet and the statutory grounds the trial court must find to terminate a parent's rights to a child are well known, as are the legal and factualsufficiency standards of review. We apply those standards here.
Clear and Convincing Evidence. If the Department moves to terminate a parent's rights to a child, the Department must prove by clear and convincing evidence that the parent's acts or omissions met one or more of the grounds for involuntary termination listed in subsection 161.001(b)(1) of the Family Code and terminating the parent's rights is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The same evidence used to prove the parent's acts or omissions under subsection 161.001(b)(1) may be used in determining the best interest of the child under subsection 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.); see also Tex. Fam. Code Ann. § 161.001(b). The trial court may consider a parent's past deliberate conduct to infer future conduct in a similar situation. In re D.M., 452 S.W.3d at 472.
Statutory Grounds for Termination. The Family Code authorizes a court to terminate the parent-child relationship if, inter alia, it finds by clear and convincing evidence that the parent's acts or omissions met certain criteria. See Tex. Fam. Code Ann. § 161.001(b). Here, the trial court found Dad's course of conduct met subsections (N) and (O):
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment; [and]
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.Id. § 161.001(b)(1).
Legal Sufficiency. When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "'look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.'" In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court "'determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true,'" the evidence is legally sufficient. See id.
Factual Sufficiency. Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d at 25; accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266; accord In re H.R.M., 209 S.W.3d at 108.
Statutory Grounds for Terminating Dad's Parental Rights
In his first and second issues, Dad challenges the legal and factual sufficiency of the evidence supporting the trial court's finding that his course of conduct met statutory grounds (O) and (N). See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O). We begin with ground (N).
To prove a parent has constructively abandoned a child, the Department must prove each of the following elements:
(N) the child . . . has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;Tex. Fam. Code Ann. § 161.001(b)(1)(N); accord In re F.E.N., 542 S.W.3d 752, 766 (Tex. App.-Houston [14th Dist.] 2018), pet. denied sub nom. In re F.E.N., 579 S.W.3d 74 (Tex. 2019) (per curiam); In re K.A.S., 399 S.W.3d 259, 263 (Tex. App.-San Antonio 2012, no pet.).
"The first element focuses on the Department's conduct; the second and third elements focus on the parent's conduct." In re J.A., No. 04-20-00242-CV, 2020 WL 5027663, at *2 (Tex. App.-San Antonio Aug. 26, 2020, no pet.) (mem. op.) (quoting In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.-Houston [14th Dist.] 2015, no pet.)).
B. Dad's Arguments
The record shows that E.L.S. was in the Department's conservatorship for not less than six months, and Dad does not challenge this element. Additionally, Dad does not challenge the evidence showing he failed to maintain significant contact with E.L.S. and failed to demonstrate his ability to provide E.L.S. with a safe environment. See Tex. Fam. Code Ann. § 161.001(b)(1)(N)(ii) (significant contact), (iii) (safe environment). Instead, Dad argues the Department failed to prove it made reasonable efforts to return E.L.S. to him. See id. § 161.001(b)(1)(N)(i) (Department's efforts).
C. Discerning Reasonable Efforts
"In reviewing the sufficiency of the evidence supporting termination under section 161.001[(b)](1)(N), the issue is whether the Department made reasonable efforts, not ideal efforts." In re J.A., 2020 WL 5027663, at *2 (quoting In re G.K.G.A., No. 01-16-00996-CV, 2017 WL 2376534, at *5 (Tex. App.-Houston [1st Dist.] June 1, 2017, pet. denied) (mem. op.)).
"Generally, implementation of a family service plan by the Department is considered a reasonable effort to return a child to the parent." In re A.L.H., 468 S.W.3d at 744; accord In re A.M.T., No. 14-18-01084-CV, 2019 WL 2097541, at *4 (Tex. App.-Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.).
D. Trial Testimony
The trial court heard the following testimony regarding the Department's reasonable efforts to return E.L.S. to Dad.
The Department created a service plan for Dad with a primary permanency goal of family reunification. The caseworker reviewed the plan with Dad, and he understood what the plan required him to do to be reunified with E.L.S. The caseworker met with Dad monthly, and she reviewed his progress with him.
Dad suggested his mother and his sister as family members the Department could place E.L.S. with, and the Department investigated each option. Dad's mother was unable to meet her own financial needs, and Dad's sister initially stated she was unable to care for another child. In late August, Dad's sister texted the Department. The caseworker responded by text; she asked the sister if she was ready to care for E.L.S. and when the Department could schedule an appointment for a home study. The sister never responded.
In addition, the caseworker attempted to place E.L.S. with Mom's family. She visited Mom's home and conducted a preliminary home study. She testified that the maternal grandparents were not capable of caring for E.L.S. The maternal grandmother had suffered a stroke, and the maternal grandfather's job kept him away from home for most of the week. Mom's sister was also considered as a possible placement, but she was going through a divorce and living in a hotel, and she was unable to provide a stable home.
E. Department Made Reasonable Efforts
In challenging the Department's reasonable efforts element, Dad argues that he did not have a reasonable opportunity to complete his substance abuse class. The trial court could have considered the Department's actions, including creating a service plan, ensuring he received it and understood it, meeting with him monthly to review his progress, and investigating the placement options Dad and Mom offered, were reasonable efforts. Cf. In re J.A., 2020 WL 5027663, at *3; In re A.L.H., 468 S.W.3d at 744.
Having reviewed the evidence, we conclude the trial court could have reasonably formed a firm belief or conviction that the Department made reasonable efforts to return E.L.S. to Dad. See Tex. Fam. Code Ann. § 161.001(b)(1)(N); In re A.M.T., 2019 WL 2097541, at *5 ("By implementing a family service plan and notifying Father of the plan and the consequences of failure to comply with the plan, the Department met its burden on the first element."); In re J.C., No. 04-17-00828-CV, 2018 WL 1733139, at *4-5 (Tex. App.-San Antonio Apr. 11, 2018, no pet.) (mem. op.).
F. Constructive Abandonment
Because Dad does not challenge any other essential element of ground (N), we conclude the trial court could have "reasonably form[ed] a firm belief or conviction about the truth of the [Department's] allegations," see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002), that the Department made reasonable efforts to return E.L.S. to Dad, Dad failed to maintain significant contact with E.L.S., and Dad failed to demonstrate his ability to provide E.L.S. with a safe environment, see Tex. Fam. Code Ann. § 161.001(b)(1)(N); In re J.A., 2020 WL 5027663, at *3; In re A.M.T., 2019 WL 2097541, at *4. Therefore, the evidence was legally and factually sufficient to support the trial court's finding that Dad constructively abandoned E.L.S. See Tex. Fam. Code Ann. § 161.001(B)(1)(N); In re J.A., 2020 WL 5027663, at *3; In re A.M.T., 2019 WL 2097541, at *5.
Because only a single statutory ground finding, supported by a best-interest finding, is needed to support an order terminating a parent's rights to a child, In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.-San Antonio 2017, no pet.), we need not address statutory ground (O), see Tex. R. App. P. 47.1; In re R.S.-T., 522 S.W.3d at 111.
We overrule Dad's second issue.
Best Interest of the Child
In his third issue, Dad argues the evidence was legally and factually insufficient to support the trial court's finding that terminating his parental rights was in E.L.S.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).
A. Best Interest of the Child Factors
The Family Code statutory factors and the Holley factors for best interest of the child are well known. Applying each standard of review and the applicable statutory and common law factors, we examine the evidence pertaining to the best interest of the child.
Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in determining the best interest of a child:
(1) the child's age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department;
(5) whether the child is fearful of living in or returning to the child's home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home;
(7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;
(8) whether there is a history of substance abuse by the child's family or others who have access to the child's home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
(11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the child's family demonstrates adequate parenting skills, including providing the child and other children under the family's care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
(C) guidance and supervision consistent with the child's safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child's needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.Tex. Fam. Code Ann. § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors).
Holley Factors. The Supreme Court of Texas identified the following factors to determine the best interest of a child in its landmark case Holley v. Adams:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (footnotes omitted); accord In re E. N.C. , 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).
The trial court heard the following testimony.
B. Child's Age and Vulnerabilities
At the time of trial, E.L.S. was about ten months old; she was unable to care for herself, and she had a significant health challenge. Because of Mom's drug use while she was pregnant with E.L.S., E.L.S. still has difficulty swallowing. Her foster parents must add a gel to any liquid she drinks to prevent "asphyxiation." See Tex. Fam. Code Ann. § 263.307(b)(1), (6), (8), (12); Holley, 544 S.W.2d at 372 (factors (B), (C)).
C. History of Assaultive Conduct
In 2021, Dad was convicted of aggravated assault with a deadly weapon for stabbing his own mother. According to the caseworker, Dad told her that his mother tried to intervene when Dad and Mom were fighting, and Dad stabbed his mother in the shoulder. Dad admitted that he stabbed his mother because he was "blacked out" under the influence of methamphetamine. He was sentenced to confinement for two years in the TDCJ-ID. As a result, Dad was incarcerated when E.L.S. was born and during the entire pendency of the case. See Tex. Fam. Code Ann. § 263.307(b)(7), (8), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (I)).
D. History of Drug Abuse, Criminal Conduct
When Dad was asked if the only time he had used methamphetamine in his life was when he stabbed his mother, he said "Yes." When asked to confirm his single-use assertion, he admitted he had used methamphetamine "[a] couple of times." Notably, in 2018, Dad was arrested for possession of a controlled substance: methamphetamine. Dad also had a previous conviction for felony theft of a vehicle and two misdemeanor theft convictions. See Tex. Fam. Code Ann. § 263.307(b)(7), (8); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (H)).
E. Providing for Child's Needs
The case worker testified that Dad has not demonstrated he can provide a safe and stable environment for E.L.S. Dad is currently incarcerated; when he is released his plan is to live with his mother-who is currently unemployed and unable to meet her own needs. Dad does not have any other relatives who can care for E.L.S., and he did not have any specific employment or housing plans other than to "get a job and do right." See Tex. Fam. Code Ann. § 263.307(b)(1), (11), (12), (13); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (G), (H), (I)).
F. Child's Placement
The case worker testified that E.L.S. "has a very special bond with both foster mom and foster dad." The foster parents' two other children "adore [E.L.S.], they love her, and it is mutual." The foster parents are providing a safe, stable home for E.L.S., and they want to adopt her. See Tex. Fam. Code Ann. § 263.307(b)(1), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (F), (G)).
G. Ad Litem's Recommendation
The child's ad litem confirmed that E.L.S. is very bonded to her foster family and her two foster siblings, she is doing well in the placement, and it is in E.L.S.'s best interest that the parents' rights be terminated so E.L.S. can be adopted by her foster family. See Tex. Fam. Code Ann. § 263.307(b)(1), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (F), (G)).
H. Sufficient Evidence on Best Interest Finding
The trial court, as the factfinder, could have believed the evidence regarding Dad's history of domestic violence, drug abuse, criminal conduct, and inability to provide safe and stable housing for E.L.S. See In re S.J.R.-Z., 537 S.W.3d at 691; In re F.M., 536 S.W.3d at 844. The trial court could also have believed that the foster parents were successfully providing a safe, stable home for E.L.S., they were meeting all her needs, and they would continue to do so in the future. See In re S.J.R.-Z., 537 S.W.3d at 691; In re F.M., 536 S.W.3d at 844.
Having reviewed the evidence under the appropriate standards, we conclude the trial court could have reasonably formed a firm belief or conviction that it was in E.L.S.'s best interest for Dad's parental rights to be terminated. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (citing In re C.H., 89 S.W.3d at 25). Therefore, the evidence was legally and factually sufficient to support the trial court's best-interest-of-the-child finding. See Tex. Fam. Code Ann. § 161.001(b)(2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We overrule Dad's third issue.
Conclusion
Having reviewed the evidence under the applicable standards, we conclude it was legally and factually sufficient to support the trial court's findings on ground (N) and the best interest of the child. Therefore, we affirm the trial court's order.
CONCURRING OPINION
Liza A. Rodriguez, Justice
I join the majority opinion but write separately to voice my concerns about the predicaments faced by alleged fathers in termination proceedings. Appellant, who was an alleged father, was faced with substantial delays in ordering genetic testing, in adjudicating his parental status, and in appointing an attorney to represent him. I am troubled by the way these delays kept Appellant on the periphery of the legal proceedings. I am also troubled that Appellant, who was not a member of the child's household at the time of removal, was required to participate in court-ordered services before he was adjudicated the child's parent.
Relevant Factual Background
When the Department filed its original petition for emergency removal and termination on November 19, 2021, the child was a newborn. The Department's petition named another man as the child's only alleged father. In December 2021, a Department caseworker learned that Appellant was another possible father of the child and that he was serving a sentence in a local jail. Appellant was not married to the child's mother.
In January 2022, the caseworker met with Appellant at the jail and told him about the child. Appellant responded by indicating to the caseworker that if he was the child's biological father, he would like to have a relationship with her. Although Appellant was not a member of the child's household at the time of removal and had not been adjudicated the child's parent, the caseworker prepared a service plan for him, which required Appellant to: (1) truthfully participate in a substance abuse assessment, (2) follow "any and all recommendations made on the [substance abuse] evaluation," (3) adhere to random drug screenings and yield negative results to all substances; and (4) participate in parenting education classes and provide the Department with a certificate of completion.
On January 31, 2022, the Department amended its pleadings to name Appellant as an additional alleged father.
On February 3, 2022, and prior to his adjudication as a parent, the Department filed Appellant's service plan with the trial court and it was approved and made an order of the court.
On April 5, 2022, the trial court signed an order for genetic testing for Appellant.
Even though the Department was aware of Appellant's location since December 2021 and amended its pleadings in January 2022 to include him as an alleged father, it did not serve him with its termination suit until April 20, 2022.
On June 7, 2022, the Department filed the genetic testing results with the trial court.Nothing indicates that Appellant caused or contributed to the delay in obtaining the genetic testing results. The Department was aware of Appellant's location for the duration of the case. In fact, a Department caseworker met with Appellant at the jail on a monthly basis. During one of these meetings, Appellant asked the caseworker when an attorney would be appointed to represent him, and the caseworker advised him that the court would appoint an attorney to represent him after the genetic testing was completed.
Although Appellant did not legally become the child's father until he was so adjudicated by the trial court on June 9, 2022, a presumption of paternity was created when the genetic testing results were filed with the court on June 7, 2022. See Tex. Fam. Code § 160.505(a) (providing that a man is rebuttably identified as the father of a child based on specific genetic testing results). The genetic testing results filed in this case appear to comply with the statute's requirements.
On June 9, 2022, the trial court made a finding that Appellant was the child's biological father and signed an order establishing the parent-child relationship between him and the child.
On June 10, 2022, the trial court appointed an attorney to represent Appellant.
On September 13, 2022, the case was called for trial on the merits. At the time, the child was only ten months old, and the Department's termination suit had been pending for less than ten months. The suit's mandatory dismissal date was still more than two months away. See Tex. Fam. Code § 263.401(a) (providing for the mandatory dismissal of termination suits after one year if a trial on the merits has not started or a proper extension has not been obtained). Appellant's attorney announced "not ready," and asked the trial court for a short reset because she had been appointed to represent Appellant late in the case. The trial court admitted that Appellant's attorney had been appointed late, but nevertheless denied her reset request, remarking that "due process has played out well enough."
Delays in Genetic Testing, Adjudicating Parenthood, and Appointing Counsel
As the above-mentioned timeline shows, the Department learned that Appellant was a potential father in December 2021, but it neglected to obtain an order for genetic testing until April 5, 2022. The family code provides that "a court shall order a child and other designated individuals to submit to genetic testing if the request is made by a party to a proceeding to determine parentage." Id. § 160.502(a). The fact that Appellant was one of two alleged fathers did not provide an excuse for the Department's delay. The Department was entitled to obtain genetic testing for both alleged fathers simultaneously. See Tex. Fam. Code 160.502(c) (providing that "[i]f two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.").
After the trial court signed the order for genetic testing for Appellant, two more months elapsed before the Department filed the genetic testing results with the court. The genetic testing results, which were filed on June 7, 2022, showed that Appellant was the child's biological father.Two days later, on June 9, 2022, the trial court signed an order establishing the parent-child relationship between Appellant and the child. The following day, on June 10, 2022, the trial court appointed an attorney to represent Appellant.
The record indicates that the other alleged father's genetic testing results, which excluded him as the biological father of the child, were completed on May 12, 2022, almost a month earlier than Appellant's genetic testing results.
The Texas Supreme Court has recognized that "[p]arents face a complex and nuanced family-law system that is challenging to navigate without the guidance of counsel." In re B.C., 592 S.W.3d 133, 137 (Tex. 2019). "Considering the importance of the fundamental rights at issue, the Legislature has adopted important safeguards in section 107.013 and 263.0061 to help ensure parents will not be deprived of their parental rights without due process of law." Id. Section 107.013 provides that in a suit filed by a governmental entity seeking termination of the parent-child relationship, the trial court shall appoint an attorney ad litem to represent the interests of an indigent parent who responds in opposition to the termination. Tex. Fam. Code § 107.013(a)(1). It also provides that when a parent is not represented by an attorney at the parent's first appearance in court, the court shall admonish the parent of the right to be represented by an attorney and that if the parent is indigent and appears in opposition to the suit, the right to an attorney ad litem appointed by the court. Id. § 107.013(a-1). Section 263.0061 requires the trial court to admonish unrepresented parents who appear at status and permanency hearings of their right to be represented by an attorney, and if the parents are indigent and appear in opposition to the suit, the right to a court-appointed attorney. Tex. Fam. Code § 263.0061.
I am aware that this court has held that the due process rights of indigent parents are not necessarily violated when the court appoints an attorney to represent them late in the proceedings. See In re C.Y.S., No. 04-11-00308-CV, 2011 WL 5971068, at *5 (Tex. App.-San Antonio Nov. 30, 2011, no pet.) (holding the trial court did not abuse its discretion in appointing attorney to represent parent ten months after suit was filed and four months before trial); In re M.J.M.L., 31 S.W.3d 347, 353-54 (Tex. App.-San Antonio 2000, pet. denied) (holding that the appointment of an attorney six months after the Department filed its termination petition did not violate section 107.013, especially considering that the attorney was appointed over a year before the trial date).
Notwithstanding this precedent, I am troubled by the trial court's delays in adjudicating Appellant's parentage and in appointing an attorney to represent him. These delays were precipitated by the Department's failures to obtain a timely order for genetic testing and to secure and file the genetic testing results. The Department first made contact with Appellant in January 2022 and the trial court terminated his parental rights on September 13, 2022. For much of this time-more than five months-Appellant's relationship to the child was uncertain and, as a practical matter, he was precluded from participating in the legal proceedings. The docket sheet shows that the trial court held four hearings prior to trial: a Chapter 262 hearing on December 1, 2021; a status hearing on February 1, 2022; a permanency hearing on May 16, 2022; and a permanency hearing on September 6, 2022. Three of these four hearings occurred before an attorney was appointed to represent Appellant, and it is unknown from the record whether he was even present.
Required Participation in Services
"The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). "This natural parental right has been characterized as 'essential,' 'a basic civil right of man', and 'far more precious than property rights.'" Id. "Termination of parental rights is traumatic, permanent, and irrevocable." In re M.S., 115 S.W.3d 534, 549 (Tex. 2003). "Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent." Holick, 685 S.W.2d at 20-21.
The family code defines a "parent" as "the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father," "a man who has acknowledged his paternity under applicable law, or an adoptive mother or father." Id. § 101.024(a). It defines an "alleged father" as "a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined." Tex. Fam. Code § 101.0015(a). "The term does not include a presumed father." Id. § 101.0015(b).
Two of our sister appellate courts have recognized that the service plan provisions in the family code do not apply to persons who are merely alleged fathers. See In re S.M.M., No. 01-22-00482-CV, 2022 WL 17981669, at *7 (Tex. App.-Houston [1st Dist.] Dec. 29, 2022, pet. denied) ("Notably, under the statute, a service plan applies only to parents, not to an alleged father."); In re J.W., 615 S.W.3d 453, 468 (Tex. App.-Texarkana 2020, pet. denied) ("[U]ntil Appellant was adjudicated to be J.W.'s father, neither the Department nor the trial court had the authority to require him to perform services."); see also Tex. Fam. Code § 263.102 ("Service Plan: Contents"; referring to "parent" throughout); id. § 263.103 ("Original Service Plan: Signing and Taking Effect"; referring to "parent" throughout); id. § 264.203 ("Required Participation"; authorizing the department to sue to request a temporary order requiring "the parent, managing conservator, guardian, or other member of the child's household to participate in [] services.").
As the Texarkana court of appeals explained in J.W.: "[W]here the alleged father does not fall within the category of persons listed in Section 264.203, is a stranger to the child's household, did not engage in the acts that required removal of the child from that household, and does not know but only suspects he is the child's father, the Department must 'put the horse in front of the cart'-it must first adjudicate the father as parent and then it may proceed to order services and compel the production of information." J.W., 615 S.W.3d at 472; accord In re A.J.D., No. 04-20-00607-CV, 2021 WL 2117929, at *2 (Tex. App.-San Antonio May 26, 2021, no pet.) (citing section 264.203 and recognizing that because appellant, who was an alleged father, was a member of the household when the child was removed, "the trial court was permitted to order him to engage in services while he remained an alleged father.").
In the past, this court has considered a service plan created for an alleged father before he was adjudicated a parent when evaluating the sufficiency of the evidence to support a finding of reasonable efforts to return the child to the parent under section 161.001(b)(1)(N). See In re Z.F.S., No. 04-20-00489-CV, 2021 WL 603372, at *3-4 (Tex. App.-San Antonio Feb. 17, 2021, no pet.) (concluding the department's implementation of a service plan for an alleged father five months prior to trial demonstrated reasonable efforts to return the child even though the alleged father was not adjudicated a parent until shortly before trial). However, in Z.F.S., the alleged father did not argue that the family code's service plan provisions precluded the department and the trial court from requiring him to perform services before he was adjudicated the child's parent and this court did not construe these provisions.
In my view, the practice of ordering alleged fathers, who are not members of the child's household and have no legal relationship to the child, to participate in a service plan presents "an untenable dilemma" for them. See J.W., 615 S.W.3d at 471. "Should [alleged fathers] refuse to engage in services until it is confirmed they are the child's father, their refusal could be used against them to terminate their subsequently adjudicated parental rights." Id. "On the other hand, should they voluntarily perform the Department's services and produce the requested information and genetic testing subsequently eliminates them as the father, they will have submitted to an extensive invasion of their privacy . . . by a government agency that had no authority to require such services and obtain such information otherwise." Id.
Here, Appellant willingly participated in the services ordered by the trial court, completing a parenting education course and participating in a substance abuse program until it was discontinued by the jail. But it is understandable why alleged fathers in similar situations would be reluctant to engage in services and provide information to service providers until after their parentage is adjudicated.
Paradoxically, before Appellant's parentage was adjudicated, he was treated as a "parent" for purposes of requiring him to engage in services, but he was not treated as a "parent" for purposes of appointing an attorney to represent him. Appellant was ordered to participate in court-ordered services, even though he was not a member of the child's household at the time of removal and had no legal relationship to the child. While the Department amended its petition to add Appellant as an alleged father on January 31, 2022, and a caseworker met with him at the jail each month, the Department neglected to obtain a court order for genetic testing for Appellant until April 5, 2022, and it failed to file the results of Appellant's genetic testing until June 7, 2022. As a consequence, Appellant was not adjudicated the child's father until June 9, 2022, and an attorney was not appointed to represent him until June 10, 2022. During the five-month period in which Appellant's parental status was in limbo-half the duration of the termination suit-Appellant was unrepresented by an attorney and, as a practical matter, precluded from participating in the legal proceedings.
While I agree that we must affirm the termination judgment, I cannot condone the procedures employed in this case. With these observations, I respectfully concur.
Liza A. Rodriguez, Justice, joined by Lori I. Valenzuela, Justice
[*]We use aliases to protect the child's identity. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8.