Opinion
NO. 01-16-00829-CV
03-30-2017
IN THE INTEREST OF J. M. I.
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2015-05008J
MEMORANDUM OPINION
Appellants, H.C. and S.S., are appealing the trial court's appointment of the Department of Family and Protective Services as J.M.I.'s sole managing conservator. In two issues, appellants argue that the trial court abused its discretion (1) when it denied their motion for a continuance based upon incomplete discovery, and (2) when it appointed DFPS as J.M.I.'s managing conservator, rather than appellants. We affirm.
Background
D.J.I. is the mother of J.M.I. In July 2015, DFPS began investigating her after receiving a referral alleging neglectful supervision on grounds of drug use and domestic violence. On August 28, 2015, DFPS filed a petition for child protection, conservatorship, and parental termination with respect to J.M.I. DFPS requested to be named J.M.I.'s managing conservator, citing continuing danger posed to him by D.J.I.'s ongoing substance abuse as well as her blatant disregard for the physical and emotional well-being of J.M.I.
J.M.I. was removed from D.J.I.'s care and temporarily placed with Stephanie, the mother of D.J.I.'s girlfriend, T.P. The child remained in Stephanie's care until trial.
H.C. is J.M.I.'s maternal grandmother. She and her live-in boyfriend, S.S., attended every hearing held regarding J.M.I. during the pendency of this case. A February 2016 report by J.M.I.'s guardian ad litem indicates that appellants had asked for J.M.I. to be placed with them.
Appellants filed a motion to intervene in this case on June 21, 2016. In their motion, appellants asserted that they had helped raise J.M.I. since his birth in June 2011 and that the child had resided in their home from June 2011 until June 2014 and from February 2015 until he was placed in Stephanie's care by DFPS in August 2015. Although trial was originally set for August 17, 2016 at D.J.I.'s request, the trial court continued the case and re-set trial for September 1, 2016.
On August 19, 2016, appellants served DFPS with a request for production and a request for disclosures. Three days later, appellants filed a motion to shorten the discovery period, asking the trial court to order DFPS to produce the requested documents by August 29, 2016. On August 25, 2016, DFPS filed a motion to quash, arguing that the discovery requests were untimely because they were sent less than thirty days before trial. See TEX. R. CIV. P. 190.3 (providing that all discovery in DFPS's suit must be conducted within discovery period, beginning when suit was filed, and ending thirty days before trial). During a pretrial hearing on August 25, 2016, DFPS also argued that appellants were not parties to the suit because, although appellants had filed a motion to intervene in June, they had not filed a plea of intervention, and, therefore, appellants were not entitled to discovery.
At the hearing, the trial court asked appellants' counsel to send DFPS a short list of specific documents which could be readily or easily produced. Appellants' counsel emailed DFPS a list of five categories of documents they were requesting on August 29, 2016. On August 30, 2016, DFPS produced appellants' redacted home study conducted in October 2015, along with DFPS's original petition with removal affidavit. Appellants filed their plea of intervention the same day.
On September 1, 2016, appellants filed a motion for continuance based on incomplete discovery. Appellants filed a first amended Petition in Intervention on September 8, 2016. When trial began on that same day, appellants renewed their motion for continuance based on incomplete discovery, arguing that they needed to depose at least two DFPS employees and obtain J.M.I.'s case file. After hearing arguments from the parties, the trial court denied the motion for continuance.
During trial, H.C. testified that she had three children of her own and was stepmother to S.S.'s two children. She had lived with S.S. for ten years, but was married to another man named Troy. A home study was conducted in October 2015 after H.C. requested a home assessment because she wanted J.M.I. to be placed in her home. Although H.C. testified that she mentioned Troy to the person conducting the home study, Troy is not mentioned in the marriage section of the home assessment. H.C. testified that she kicked Troy out of her home in 2003 after she learned that Troy was sexually assaulting her daughter, D.J.I.'s sister.
At trial, H.C. confirmed that she was still legally married to Troy and testified that she had not sought a divorce from him because "he was in prison. He's going to stay in prison. So, [my] last name didn't really make a difference to [me]." She later testified that she had filed for a divorce, but had been unable to serve him with the petition. H.C. later admitted that she did not file for divorce until the day before trial.
Regarding her relationship with J.M.I., H.C. claimed to have a wonderful relationship with the child but stated she had not seen him since August 9, 2015, when DFPS removed him from her home. According to H.C., D.J.I. had lived with her while pregnant with J.M.I., and both D.J.I. and child moved into her home following J.M.I.'s birth. She testified that she had always provided J.M.I. with a loving home environment free from domestic violence and she denied threatening or harassing D.J.I. or J.M.I.'s caregiver, Stephanie.
H.C. further testified that she and D.J.I. had a good relationship until D.J.I. began dating T.P. According to H.C., D.J.I. was always out, she stopped coming home every night, and she left J.M.I. in appellants' care.
On further questioning, H.C. revealed that her three other children had also lived in her home while J.M.I. was living there. She admitted that her son had a criminal history in the form of a substance abuse charge and that her older daughter, M.J.I., had assaulted D.J.I. just a few days prior to trial. When asked about J.M.I.'s present placement, H.C. stated she objected to his staying with Stephanie because "he has family, lots of family," but acknowledged that Stephanie had taken good care of J.M.I. in the time he had stayed with her.
H.C. stated that at the present time, only she and S.S. lived in their home, although her son did come to visit once or twice a week. She did not know the status of any criminal charges against her son, but acknowledged this would be important information to have. When asked if she felt there were any ulterior motives supporting D.J.I.'s request for J.M.I. to be placed with Stephanie, H.C. asserted that she believed D.J.I. was in favor of this placement because Stephanie provided her access to a car.
D.J.I. testified that she wanted J.M.I. to remain with Stephanie. She claimed to have witnessed domestic violence between appellants when living in their home, saying that "they would argue, get physical." She also testified that her brother had physically attacked her more than four times and that, rather than protecting her from these attacks, H.C. had asked what D.J.I. was doing to provoke her brother.
D.J.I. also claimed that she and T.P. had been harassed at various times during the case by appellants and that, on one occasion, S.S. was escorted out of the courtroom by bailiffs for saying he would "have the cops watching [her] every move and . . . ruin [her] life."
D.J.I. testified that she and T.P. lived with Stephanie, J.M.I.'s caregiver and T.P.'s mother, from August of 2015 until the beginning of July 2016. She also testified, however, that she moved out of Stephanie's home after DFPS removed J.M.I. from D.J.I.'s care and prohibited D.J.I. from living in the same home with the child.
D.J.I. testified that she believed Stephanie's residence would be a "much more stable" environment for her son than appellants' home because it would be happier, safer, and free of drugs and violence. She also denied that she ever told H.C. that she would like J.M.I. to be placed in H.C.'s home. At the beginning of J.M.I.'s placement with Stephanie, H.C. had been permitted to visit him, but that visitation was later prohibited by DFPS when "the harassment towards [Stephanie] got really, I guess, serious."
D.J.I. executed an affidavit of relinquishment of her parental rights to J.M.I. which was admitted into evidence during the trial.
Rita Tate, the DFPS caseworker assigned to the case, testified that she recommended that J.M.I. remain with Stephanie, that the parental rights of J.M.I.'s mother and father be terminated, and that DFPS be appointed permanent managing conservator of J.M.I. so that he could be adopted by Stephanie. She testified that this was the best course of action because "the mother had not been able to stay off of drugs, so [DFPS is] unable to allow her to keep the child [which] is what [they] would prefer. [DFPS does] think that the child has been in a very good home since 2014 with [Stephanie], and [they] think she would be in the best interest of the child." Tate confirmed that she had seen the home assessment conducted on H.C. and S.S., which lacked verification of S.S.'s income, and said she had never reached out to H.C. or S.S. to talk about placing J.M.I. in their home.
After a one-week recess, appellants' counsel called Jackeithsha Fluellen, who conducted the October 2015 home assessment on H.C. and S.S. She testified that she had interviewed both H.C. and S.S. and inspected their home and that she believed the assessment was a positive one. Fluellen stated she had learned about H.C.'s marriage to Troy about two weeks before trial, and that H.C. had told her she kicked Troy out and contacted the police just after learning Troy had sexually assaulted her daughter. Fluellen believed H.C. had handled this situation appropriately.
Fluellen also testified that she would be concerned if J.M.I. were placed in a home where D.J.I. was living. She also acknowledged that her home assessment was incomplete, since H.C. had not mentioned her marriage to Troy during the initial assessment. She also testified that she was concerned about the fact that H.C. did not reveal her past with Troy in this first interaction.
Stephanie testified that she had known J.M.I. since he was eighteen months old and had been his caregiver for the past two years, since DFPS became involved and placed J.M.I. with her. She confirmed that before DFPS was involved, D.J.I. had lived in her home as well, but had moved out once DFPS initiated its case and had no longer visited the home once DFPS determined visits could not occur there anymore.
Stephanie stated that she wished to adopt J.M.I. and she felt capable of providing him with a safe, stable, nurturing, and loving home. Since moving in with her, Stephanie said J.M.I. was enrolled in school and had become involved in extracurricular activities, including soccer, tennis, and a Bible study for young children.
Although she had not formally filed a petition to adopt J.M.I., Stephanie testified that she had begun making preparations to do so by starting Fostering Connections and having the requisite background checks and inspections done.
After the bench trial, the trial court issued its decree of termination in which the court stated that clear and convincing evidence supported the termination of the parental rights of D.J.I., the alleged father, and any unknown fathers. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(K), 161.002 (West 2016). The trial court also found that it was in J.M.I.'s best interest to appoint DFPS as his sole managing conservator. Accordingly, the trial court terminated the parents' rights, appointed DFPS as J.M.I.'s sole managing conservator, and it denied all relief requested by appellants.
This appeal followed. None of the parents affected by the trial court's decree appealed the termination of their rights and they are not parties to this appeal.
Motion for Continuance
In their first issue, appellants argue that the trial court abused its discretion when it denied their motion for a continuance based upon incomplete discovery.
A. Standard of Review
The trial court has broad discretion to deny or grant a motion for continuance, and the appellate court will not reverse the trial court's decision absent a clear abuse of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). "A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). We review a trial court's order denying a motion for continuance on a case-by-case basis. Id.
We consider the following nonexclusive factors when deciding whether a trial court abused its discretion by denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Id. "A party who does not diligently utilize the procedures for discovery can seldom claim reversible error when the trial court refuses a continuance." Hatteberg v. Hatteberg, 933 S.W.2d 522, 527 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988)). A party who does not file a motion to compel in order to obtain discovery not provided faces a similar hurdle when seeking a motion to compel based on incomplete discovery. See generally BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800-01 (Tex. 2002) (holding no abuse where party had ample time to conduct, and did conduct, discovery but failed to file motion to compel to obtain discovery not provided).
B. Analysis
Appellants argue that the trial court abused its discretion by denying their motion for continuance because they had tried unsuccessfully for months to obtain copies of the home study conducted in this case, DFPS did not provide the redacted home study until two days before the second trial setting, and appellants needed the additional discovery to adequately prepare for trial. Specifically, appellants argued that they needed documents and information that could only be found in J.M.I.'s case file. Appellants also argued that they needed additional time to evaluate the redacted home study and its supporting documentation and to depose some of the DFPS employees who had worked on J.M.I.'s case.
DFPS argues that, although appellants filed a motion to intervene in June, this case was pending for a year before appellants filed their plea of intervention on August 30, 2016. According to DFPS, appellants were not parties to the case prior to that point, and therefore, appellants were not entitled to discovery until August 30. DFPS further contends that given appellants' late intervention in the case, untimely discovery requests, and their failure to file a motion to compel any outstanding discovery items, the trial court did not abuse its discretion by denying appellants' motion for continuance.
Appellants assert that a hearing on their motion to intervene was heard on August 16, 2016. A transcript of this hearing is not included in the record.
The appellate record reflects that appellants filed a motion to intervene on June 21, 2016, alleging that they were J.M.I.'s maternal grandmother and maternal step-grandfather, and that they had standing to intervene pursuant to Family Code section 102.004(a)(1). TEX. FAM. CODE ANN. § 102.004(a)(1) (West 2014). Appellants asked the trial court to appoint them as J.M.I.'s temporary managing conservators. See id. § 102.004(a)(1).
An intervener does not need the trial court's permission to intervene. See Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); see also Quintanilla v. Law Office of Jerry J. Trevino, P.C., No. 13-15-00105-CV, 2016 WL 1316560, at *3 (Tex. App.—Corpus Christi Mar. 10, 2016, no pet.) (mem. op.) (citing In re Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008)). Looking to the substance of appellants' filing, rather than its title or form, we construe their June 21, 2016 "motion to intervene" as a "petition to intervene." See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (courts look to substance of pleading rather than its caption or form to determine its nature). We hold that appellants were intervenors in this case when they filed their motion to intervene on June 21, 2016. See Guar. Fed. Sav. Bank, 793 S.W.2d at 657; see also Quintanilla, 2016 WL 1316560, at *3. Therefore, appellants had a right to discovery at that time. See TEX. R. CIV. P. 192.3(a) (West 2004).
The record also reflects that, although appellants had regularly attended court proceedings and expressed an interest to J.M.I.'s guardian ad litem that the child be placed with them as early as February 2016, appellants did not attempt to formally intervene in the matter until June 21, 2016—ten months after the case began and less than a month before the initial trial setting on August 19, 2016. Furthermore, although appellants attempted to obtain the home study through informal channels, they did not utilize the discovery procedures in place for civil proceedings until two days after the first trial setting. See Hatteberg, 933 S.W.2d at 527 (holding trial court did not abuse its discretion by denying motion for continuance based on incomplete discovery because party sought discovery informally and did not "diligently utilize the procedures for discovery"). Appellants also did not file a motion to compel the discovery items they claim were withheld. See generally BMC Software Belgium, N.V., 83 S.W.3d at 800-01 (holding no abuse where party failed to file motion to compel to obtain discovery not provided). Although appellants asked for a continuance in order to depose DFPS employees and discover additional information, we cannot say that the trial court abused its discretion in light of the length of time the case had been on file and appellants' lack of due diligence in attempting to obtain the discovery sought, as demonstrated by their failure to file a motion to compel or to utilize proper discovery procedures See Joe, 145 S.W.3d at 161; see also BMC Software Belgium, N.V., 83 S.W.3d at 800-01; Hatteberg, 933 S.W.2d at 527.
We overrule appellants' first issue.
Appointment of Managing Conservator
In their second issue, appellants argue that the trial court abused its discretion when it appointed DFPS as J.M.I.'s managing conservator, rather than appellants. Specifically, appellants argue that the court erred in appointing DFPS as J.M.I.'s managing conservator because the court did not consider the factors leading to D.J.I.'s alienation from appellants or that J.M.I.'s reunification with his biological family was in his best interest.
A. Standard of Review
The standard of review in a case involving the appointment of a non-parent as managing conservator is less stringent than the standard applied to a termination of parental rights. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Unlike the clear and convincing standard which it is necessary to meet in a termination proceeding, the appointment of a non-parent as managing conservator need only be proven by a preponderance of the evidence. Id.; see TEX. FAM. CODE ANN. § 105.005 (West 2014).
Moreover, the trial court is given wide latitude in determining the best interests of a child, and its judgment regarding whom to appoint as the child's conservator will not be reversed unless the record demonstrates that the court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
We review a trial court's appointment of a non-parent as sole managing conservator for an abuse of discretion. In re J.A.J., 243 S.W.3d at 616. "An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence." In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.). An abuse of discretion also does not occur "as long as some evidence of substantive and probative character exists to support the trial court's decision." Id. Accordingly, we will reverse a trial court's appointment of a non-parent as sole managing conservator only if we determine that it is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d at 616.
Family Code section 161.207 directs the court to appoint a suitable, competent adult, DFPS, a licensed-child placing agency, or an authorized agency as the child's managing conservator. TEX. FAM. CODE ANN. § 161.207 (West 2016); see also In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Unlike parents, "there is no statutory presumption that a grandparent should be preferred over other non-parents." In re A.C., 394 S.W.3d at 644.
"The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." TEX. FAM. CODE ANN. § 153.002 (West 2014); see also In re A.C., 394 S.W.3d at 644. Courts consider the Holley factors when determining whether the appointment of a party as managing conservator is in the child's best interest. In re A.C., 394 S.W.3d at 644 (citing Dep't of Family & Protective Servs. v. Alts. in Motion, 210 S.W.3d 794, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)). These nonexclusive factors include the current and future physical and emotional needs of the child, the current and future physical danger to the child, the parental abilities of the person seeking custody, plans for the child by the person seeking custody, and the stability of the home. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Under the abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but are relevant factors in determining whether an abuse of discretion occurred. Patterson v. Brist, 236 S.W.3d 238, 240 (Tex. App.—Houston [1st Dist.] 2006, pet. dism'd); In re J.A.J., 243 S.W.3d at 616 n.5. In conducting such a review in a conservatorship case, the appellate court views the evidence in a light favorable to the finding, credits favorable evidence if a reasonable fact-finder could do so, and disregards contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
B. Analysis
Appellants argue that the trial court erred when it granted permanent managing conservatorship to DFPS rather than appellants because the court did not consider the factors leading to D.J.I.'s alienation from appellants and that J.M.I.'s reunification with his biological family was in his best interest. Arguing that minors removed from their parents should be placed with members of their biological family when possible, appellants contend that the trial court overlooked this compelling evidence indicating it would be in the best interest of J.M.I. to be placed with them.
H.C. testified that she became alienated from D.J.I. because D.J.I. began neglecting J.M.I. after she started dating T.P. H.C. further testified that she wanted to adopt her grandson and that she had always provided J.M.I. with a loving home environment that was free from domestic violence. She also denied threatening or harassing D.J.I. or Stephanie, and she suggested that D.J.I. wanted Stephanie to adopt J.M.I. because Stephanie provided D.J.I. with a car.
D.J.I.'s sister, M.J.I., also testified that D.J.I. had admitted to lying about H.C. and S.S., and that D.J.I. had told her that she wanted Stephanie to keep J.M.I. because she wanted to "bury" appellants. M.J.I. also testified that J.M.I. and appellants had a loving relationship and that it would be in J.M.I.'s best interest to be placed with his maternal grandmother rather than a non-related third party.
D.J.I., however, testified that she witnessed family violence in appellants' home, that she was physically assaulted in appellants' home by her adult siblings, and that H.C. failed to protect her. There is also testimony that appellants harassed D.J.I., T.P., and Stephanie during the pendency to this case and that during one such incident S.S. had to be escorted out of the courtroom by bailiffs. The record also contains evidence that appellants' visits with J.M.I. were suspended by DFPS due to appellants' harassment of Stephanie. D.J.I. also testified at trial that she "absolutely" had concerns for J.M.I.'s safety should the child be placed in appellants' care. This is evidence that appointing appellants as J.M.I.'s managing conservator would subject the child to instability, and would not best serve his physical and emotional needs. See Holley, 544 S.W.2d at 371-72.
Although there was conflicting testimony from D.J.I.'s sister that D.J.I. "had lied and made everything up about [appellants]" and from H.C. denying the occurrence of family violence within her home, it was within the trial court's discretion to weigh the credibility of each witness and credit D.J.I.'s testimony over that of her mother and sister. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (stating, "the court of appeals must . . . provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses."); see also In re M.M.M., 307 S.W.3d at 849 (stating that court does not abuse its discretion when its decision is based on conflicting evidence).
In addition to the evidence demonstrating that it would not be in J.M.I.'s best interest to appoint appellants as his managing conservators, there is also evidence supporting the trial court's determination that it was in J.M.I.'s best interest to appoint DFPS as his managing conservator, given the department's plan to have Stephanie adopt the child.
Specifically, Stephanie testified that she had been caring for J.M.I. for two years, had known the child since he was eighteen months old, and that she wished to adopt him. She stated that, while in her care, J.M.I. was enrolled in school and involved in various extra-curricular activities. She also testified that she believed she could continue to provide J.M.I. with a safe, stable, nurturing, and loving home, as she had been doing for the two years he was in her care.
D.J.I., the Child Advocate volunteer, and the DFPS caseworker agreed with this assessment. D.J.I. testified that Stephanie's home was a happier and safer environment for J.M.I., free of both drugs and violence. The Child Advocate volunteer and the DFPS caseworker also agreed that Stephanie provided a safe, stable environment for J.M.I. and that J.M.I.'s placement with Stephanie was, in the words of the volunteer, "the best place for him to be." Furthermore, it was uncontested at trial that Stephanie was a good parent to J.M.I. In fact, H.C. acknowledged that Stephanie had taken good care of J.M.I. while he was in her care.
In light of the evidence demonstrating H.C. and S.S.'s past with violence and instability, the uncontroverted testimony regarding Stephanie's care of J.M.I., and that Stephanie demonstrated the parenting ability to safely provide for J.M.I.'s physical and emotional needs, had provided the child with safety and stability, and that DFPS planned to have Stephanie adopt the child, there is evidence in the record that the appointment of DFPS as his managing conservator was in J.M.I.'s best interest. See Holley, 544 S.W.2d at 371-72.
We overrule appellants' second issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.