Friday, November 23, 2007

Judge Dorfman ascends to the First Court of Appeals

The Honorable Samuel Grant Dorfman, presiding judge of the 129th District Court and occasional professor of law, helps Justices George C. Hanks, Jr. and Jane Bland decide that former fellow civil trial court judge Gary Block (since disgraced) erred in bench trial of commercial contract dispute. Justice Hanks writes opinion reversing Block and rendering take-nothing judgment.

HP/Management Services, Inc. v. Guaranteed Nursing Staff, L.L.C, No. 01-05-00944-CV (Tex.App.- Houston [1st Dist.] Nov. 15, 2007) (Opinion by Justice Hanks) (no authority, no agency, no contract, no breach, no recovery - judgment reversed)
Appeal from County Civil Court at Law No 2 of Harris County
Trial court judge: Hon. Gary Michael Block
Appellant's attorney: Maurice E. Klein
Appellee's attorneys: Sean A. Roberts, Wendell Maurice Champion

MEMORANDUM OPINION

After a bench trial, Guaranteed Nursing Staff, L.L.C. (“GNS”), appellee, prevailed on its breach of contract claim against HP/Management Services, Inc. (“HP”), appellant. In eight issues, HP contends that the trial court erred in rendering judgment for GNS because GNS did not file any pleadings against HP and the evidence is legally and factually insufficient to establish that (1) a contract existed between GNS and HP, (2) HP was responsible for any contractual obligation incurred by Hermann Park Manor relating to GNS, and (3) Michael Mileski was acting for or on behalf of HP when he signed the agreement. HP also appeals the award of attorney’s fees. We reverse and render judgment in favor of HP.

Background

Hermann Park Manor, a healthcare facility, entered into a contract with GNS for GNS to provide temporary personnel staffing for the facility. The contract, entitled “Supplemental Staffing Agreement,” was signed by Michael Mileski, as the administrator of Hermann Park Manor, and Helen Royston, as the marketing director of GNS. GNS was not fully compensated for the services it provided under the contract, and it sued the following parties for, among other things, breach of contract: HCCI-Houston, Inc. d/b/a Hermann Park Manor, the owner of Hermann Park Manor; HP, the management company for Hermann Park Manor; and Mileski, the administrator of Hermann Park Manor. GNS proceeded to trial against Mileski and HP.
[The record does not reflect how the claims against defendant, HCCI-Houston, Inc. d/b/a Hermann Park Manor, were resolved.]

At trial, Cynthia Champion, the owner of GNS, gave undisputed testimony that, while she believed that Mileski had signed the Supplemental Staffing Agreement on behalf of Hermann Park Manor, she learned, after this suit had been filed, that Mileski, in addition to being Hermann Park Manor’s administrator, was also HP’s employee at the time that he signed this contract. During Champion’s testimony, the parties stipulated that GNS was owed $16,853.98 in compensation for services that it provided under the contract.

The court also heard testimony from H.P.’s president Douglas Mittleider. Mittleider testified that HCCI owns Hermann Park Manor. He also testified that, pursuant to the Long Term Care Facility Management Agreement between HP and HCCI, HP is responsible for running the day-to-day operations of Hermann Park Manor on behalf of HCCI and for appointing an administrator to serve as the onsite manager of Hermann Park Manor. This agreement nevertheless specifies that HCCI retains ownership and control over the management duties and obligations of Hermann Park Manor.

HP appointed Mileski as the administrator of Hermann Park Manor. Mittleider testified that, although Mileski was an employee of HP, Mileski did not sign the Supplemental Staffing Agreement with GNS on behalf of HP. Mittleider testified that Mileski signed the Agreement on behalf of the facility and its sole owner: Hermann Park Manor and HCCI, respectively. Mittleider further testified that HP (1) did not enter into the Supplemental Staffing Agreement with GNS, (2) did not make any payments to GNS under this Agreement, and (3) did not enter into any vendor contracts while it managed Hermann Park Manor. Mittleider testified that Mileski, as the administrator of Hermann Park Manor, decided which invoices under the Agreement with GNS were to be paid, and that HCCI, not HP would make these payments. No evidence controverted Mittleider’s testimony that Hermann Park Manor was owned by and doing business as HCCI or that the Long Term Care Facility Management Agreement defined the relationship between Mileski, HP, HCCI, and Hermann Park Manor.

The Long Term Care Facility Management Agreement between HCCI and HP was entered into evidence. Under the terms of this Agreement, HP was required to get permission, in writing, from HCCI to contract with any third party on behalf of HCCI involving a value in excess of $10,000. The Agreement also provided that HP would indemnify HCCI if HP breached the Agreement. The Agreement provides in pertinent part that:

1.03 Management of Facility. During the term of this Agreement, [HP] shall on behalf of [HCCI] manage all aspects of the operation of [Hermann Park Manor], including, but not limited to, staffing, accounting, billing, collections, setting of rates and charges and general administration. In connection therewith, [HP] (either directly or through supervision of employees of [Hermann Park Manor]) shall:
. . .

(j) Negotiate and enter into in the name of and on behalf of [HCCI] such agreements, contracts and orders as it may deem necessary or advisable, for the furnishing of services, concessions and supplies for the operation and maintenance of [Hermann Park Manor]; provided, however, that [HCCI] must approve, in writing, any agreement, contract or order, which has a term greater than one (1) year or which requires annual payments of more than $10,000.
. . .
5.09 Costs and Expenses: Indemnity
. . .

(b) [HP] agrees to indemnify and hold [HCCI] and its officers, directors, agents and employees harmless from and against all losses, claims, damages or other liabilities, including without limit, reasonable attorneys fees and the costs and expenses incurred in connection therewith, arising out of or relating to the willful misconduct, breach of contract or gross negligence of [HP], in performing its duties under this Agreement.
Mittleider testified that he did not believe HP had received written approval from HCCI to bind HCCI to the agreement with GNS, which was valued in excess of $10,000.

After the close of evidence, the trial court made the following findings of fact and conclusions of law:

Findings of Fact

1. On December 26, 2001, Defendant, Michael Mileski, an employee of HP Management Services and Administrator of Hermann Park Manor, executed a written contract with Plaintiff Guaranteed Nursing Staff to provide temporary personnel staffing for their local facility. Prior to executing the agreement, Defendants failed to properly disclose that the company could not or would not willingly pay for the services rendered under the contract, within the terms of the agreement. Specifically, prior to entering into the agreement, Defendants concealed the material fact that their business was operating under budget constraints and that they would not make timely payments pursuant to their contractual obligations.

2. From December 26, 2001 until on or about April 22, 2002, Plaintiff provided supplemental staffing services to the Defendant under the executed agreement which provided for payment within 30 days after receipt of the invoice. Clause 5(c), Compensation and Payment, provides “All amounts due to the Agency are due within (30) days from receipt of invoice. Facility will send all payments to the address printed on the Agency invoice.” Defendants requested and accepted the temporary personnel services of the Plaintiff for their healthcare facility and became bound to pay Plaintiff its designated charges, which were reasonable and customary for such services.

3. The account accurately sets forth the services, the dates of services, the hours and prices for the services that the Plaintiff provided Defendant. The account represents the record of the transactions that Plaintiff systematically keeps in the ordinary course of business. Defendants have refused to make full payment for services rendered and the principal balance due Plaintiff on the account is $16,853.98 after allowing for all just and lawful offsets, payments and credits.

4. Subsequent to the execution of the contract, Defendants have failed to perform the terms of the contract without legitimate legal excuse. Defendants have failed to pay Plaintiff for services rendered.

5. As a result of the Defendants’ conduct, Plaintiff found it necessary to employ attorneys. Plaintiff also properly presented its breach of contract claim such that attorneys’ fees are recoverable. Thus, in addition to the damages suffered by Plaintiff, Guaranteed Nursing Staff, L.L.C. has a right to be reimbursed reasonable attorneys’ fees as permitted by law. Although the Court heard no evidence of the reasonableness or amount of attorneys’ fees incurred by Plaintiff, the Court takes judicial notice that Plaintiff’s attorneys have expended time and effort prosecuting this case and that a reasonable fee for the services is $5,000.00.
Conclusions of Law

1. The Court finds Plaintiff has non-suited all claims asserted against HP/Hermann Park., Inc. and are hereby dismissed with prejudice to re-riling. [sic]
2. The Court finds that Plaintiff take nothing by its suit against Defendant Michael Mileski and that Michael Mileski recover his court costs from Plaintiff.
3. The Court finds that Plaintiff recover judgment from Defendant HP Management Service, Inc., on its cause of action for breach of contract only and shall recover the sum of $16,853.98, together with post-judgment interest at the annual rate of 6% until paid.
4. Plaintiff recover prejudgment interest on the judgment at thed [sic] annual rate of 6% from May 2, 2002 to the date of judgment in the sum of $3,167.57.
5. The Court finds Plaintiff recover its attorney fees from HP Management Service, Inc., in the amount of $5,000.
6. The Court finds that all of Plaintiffs court costs be taxed against Defendant HP Management Service, Inc.
7. The Court finds its judgment is final and disposes of all claims and all parties and that relief not expressly given is denied and that the parties are allowed such writs and processes as may be necessary in the collection or enforcement of this judgment.

The trial court awarded GNS $16,853.98 in addition to interest and attorney’s fees.
HP as a Named Defendant

In issue one, HP contends that the trial court erred in rendering judgment for GNS because GNS did not file any pleadings against HP. Specifically, HP alleges that “there were no pleadings on file with the trial court wherein GNS named [HP] as a Defendant or asserted any claim against [HP].” HP further argues that “there were no pleadings in the trial court wherein GNS asserted a breach of contract claim against [HP].” We disagree.

The appellate record includes a copy of GNS’s third amended petition in which it names HP as a defendant. Within the petition, GNS alleges that it suffered damages when the defendants breached the contract by failing to perform the terms of the contract and failing to pay GNS for services rendered. HP did not specially except to the third amended petition. In addition, the record contains a Rule 11 Agreement from HP’s attorney wherein he agreed to accept service on behalf of HP. We overrule issue one.

Breach of Contract

In issues two through six, HP asserts that the evidence is legally and factually insufficient to establish that (1) a contract existed between GNS and HP, (2) HP was responsible for any contractual obligation incurred by Hermann Park Manor relating to GNS, and (3) Mileski was acting for or on behalf of HP when he signed the agreement. In issues seven and eight, HP asserts that there is no evidence to support an award of damages in this case for breach of contract. The crux of HP’s argument is that the evidence is legally and factually insufficient to show that Mileski was acting as an agent of HP and had the authority to bind HP to vendor contracts when he signed the Supplemental Staffing Agreement. Accordingly, HP argues that the trial court erred in finding HP liable for breaching the agreement and for the payment of damages under the court’s conclusions of law three and four. We agree.

Standard of Review

We review de novo a trial court’s conclusions of law and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand N.V., 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court’s conclusions of law for lack of factual sufficiency, but we review the legal conclusions drawn from the facts to determine their correctness. BMC, 83 S.W.3d at 794. If the reviewing court finds that a conclusion of law is erroneous but that the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal. Id. When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

In this case, the undisputed facts establish that Mileski did not have actual authority to bind HP to the Supplemental Staffing Agreement as HP’s agent, nor did HP ratify such conduct on its behalf by Mileski. As reflected on the signature blocks provided on the Agreement, Mileski signed the Agreement as the “administrator of Herman Park Manor,” not on behalf of HP. Accordingly, the trial court erred in its legal conclusions that HP was liable for breach of the contract and for the payment of damages to GNS.

Agency Relationship

It is undisputed that GNS did not learn that Mileski was an HP employee until shortly after this suit was filed.

An undisclosed principal is liable for the contracts of its agent only if the agent acted with the principal’s actual authority in making the contract for the principal or the principal ratified the contract. See Latch v. Gratty, Inc. 107 S.W.3d 543, 546 (Tex. 2003)

[In its briefing, GNS does not argue that HP ratified the Supplemental Staffing Agreement onits behalf nor have we found any evidence in the record to support this conclusion. There isno evidence that HP ever acknowledged the Supplemental Staffing Agreement as anagreement between HP and GNS nor was there any evidence that HP has ever asserted anyrights against GNS based on this Agreement. ]

Assuming, without deciding, that Mileski was HP’s agent by virtue of his status as an HP employee, the evidence is legally insufficient to conclude that Mileski had actual authority from HP to bind it to the Supplemental Staffing Agreement.

“Actual authority” is based on manifestations of consent by the alleged principal to the alleged agent, and such authority can be conferred either expressly or by implication. See Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

Express authority exists where the principal has made it clear to the agent that he wants the act under scrutiny to be done. City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex. App.—San Antonio 1984, writ dism’d).

Implied authority exists when appearances justify a finding that the principal authorized the agent’s act; in other words, there is circumstantial evidence of actual authority. Id. at 683–84. Implied actual authority exists only as an adjunct to express actual authority, because implied authority is that which is proper, usual, and necessary to the exercise of the authority that the principal expressly delegates. Behring Int’l, Inc. v. Greater Houston Bank, 662 S.W.2d 642, 649 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d by agr.); Employers Cas. Co. v. Winslow, 356 S.W.2d 160, 168 (Tex. Civ. App.—El Paso 1962, writ ref’d n.r.e.).

In this case, there is no evidence of express or implied actual authority for Mileski to sign the Supplemental Staffing Agreement on behalf of HP and bind HP to the terms of this contract. Mittleider, the president of HP, testified that Mileski executed the Supplemental Staffing Agreement on behalf of HCCI, the owner of the facility, not HP. Furthermore, it is undisputed that HCCI is doing business as Herman Park Manor and the Agreement expressly bears Mileski’s signature in his capacity as the administrator of Hermann Park Manor, not as an employee of HP. There is also no evidence of what authority Mileski had to bind HP to any contracts with vendors who did business with Hermann Park Manor, which was owned by HCCI. It is undisputed that Mileski never entered into any vendor contracts on behalf of HP while HP managed Hermann Park Manor, and HP never paid any of the invoices from GNS under the Supplemental Staffing Agreement: only Hermann Park Manor’s owner, HCCI, paid them.

Nevertheless, GNS argues that because (1) Mileski was an HP employee at the time he signed the Supplemental Staffing Agreement; (2) GNS was directed to make its billing inquiries through HP, as administrator of the facility; (3) Mileski made the decision as to which bills to submit to HCCI, as owner, for payment, and HP forwarded payments for GNS’s invoices from HCCI to GNS; and (4) HP and HCCI are located in the same city in Georgia, there is sufficient evidence of actual authority to bind HP to the Supplemental Staffing Agreement.

We disagree.

These facts establish Mileski’s and HP’s status as agents for HCCI under the Long Term Care Facility Management Agreement. They do not, however, establish that Mileski signed the Agreement on behalf of HP or that he had authority to bind HP to the terms of the Agreement, particularly where the Agreement expressly states that he did so on behalf of Hermann Park Manor, a facility owned by HCCI.

Next, GNS argues that Mileski’s apparent breach of the Long Term Care Facility Agreement by entering into the Supplemental Staffing Agreement, without HCCI’s permission, for an amount in excess of $10,000 is sufficient evidence to show implied actual authority to enter into the agreement on behalf of HP. We disagree. Absent evidence of Mileski’s authority to contract on behalf of HP, or of whether Mileski ever had express authority or exercised any authority to bind HP, this evidence cannot establish implied actual authority. See Behring Int’l, Inc., 662 S.W.2d at 649; Employers Cas., 356 S.W.2d at 168 (holding that, for implied authority to exist, there must be some evidence concerning what authority had been given to agent).

Finally, HP argues that, because Mileski never disclosed to GNS that he was an employee of HP or that Hermann Park Manor was owned by HCCI, under “an undisclosed principal theory,” HP is liable for payment due under the Supplemental Staffing Agreement. GNS’s reliance on the holdings in Posey v. Broughton Farm Co., 997 S.W.2d 829, 832 (Tex. App.—Eastland 1999, pet. denied) and Hideca Petroleum Corp. v. Tampimex Oil International, Ltd., 740 S.W.2d 838, 841 (Tex. App.—Houston [1st Dist.] 2003, no pet.), for this argument is misplaced.

These cases stand for the proposition that, if an agent fails to disclose its principal, the agent is liable for the contract it enters into with third parties. As noted above, an undisclosed principal is only liable for the contracts entered into by its agents with the actual authority of the undisclosed principal or if the undisclosed principal subsequently ratifies the contract. See Latch, 107 S.W.3d at 546.

Here, this was not the case.Assuming, without deciding, that Mileski was an agent of HP by virtue of his employment with HP, the evidence is legally insufficient to establish that he had actual authority to sign the Agreement on behalf of HP or bind HP to the terms of the Agreement, where he did so expressly on behalf of Hermann Park Manor, owned by HCCI, but not HP.

Accordingly, the evidence is legally insufficient to establish that (1) a contract existed between GNS and HP, (2) HP was responsible for any contractual obligation incurred by Hermann Park Manor relating to GNS, and (3) Mileski acted for or on behalf of HP when he signed the agreement of the facility.

The trial court thus erred in concluding that HP was liable for breach of the contract to GNS, and we sustain issues two through six. Because we hold that there is insufficient evidence of liability for breach of contract, we do not need to reach points of error seven and eight regarding the trial court’s damage award.

Conclusion

We reverse and render judgment that GNS take nothing from HP.

Mom on drugs fails opportunity to shape up; has her parental rights terminated

Grandmother did not want to step up to the plate either. Houston Court of Appeals reviews evidence on each of the Holley v. Adams best-interest factors and affirms trial court's order terminating mother's rights based on jury verdict. Reviewing court finds no error in denial of Mother's untimely attempt to amend her pleadings to request different placement of child.

Amanda Strange v. Department of Family and Protective Services, No. 01-07-00267-CV (Tex. App.- Houston [1st Dist.] Nov. 20, 2007)(Opinion by Justice Alcala)(termination of parental rights)(Before Chief Justice Radack, Justices Alcala and Bland)
Appeal from 306th District Court of Galveston County

MEMORANDUM OPINION BY JUSTICE ELSA ALCALA

Appellant, Amanda Strange, appeals the trial court’s order terminating parental rights to her child, C.S. In two issues, appellant contends that the evidence is factually insufficient to support the jury’s finding that termination is in the best interest of the child and that the court abused its discretion by denying her Motion to Relax the Docket Control Order and striking her counterpetition. We affirm.

Background

On March 24, 2006, the Galveston Sheriff’s Office was called to Strange’s house to conduct a child welfare check. Strange was living with her mother, Linda. As Officer Dunn got out of his car to approach the house, he could hear the child screaming inside the house. Officer Dunn looked into the house through a living room window. He saw Strange unconscious, on the couch, and the screaming child less than a foot away from her head. There was no answer when Officer Dunn knocked at the door. With the assistance of another officer who arrived at the house, Officer Dunn kicked in the door. The officers awakened Strange. The officers asked when the child had eaten last. Strange responded that the child had eaten just thirty minutes before they arrived. Although Strange claimed the child was not hungry, the child drank the entire bottle of milk that Strange made for her in the officers’ presence. As Strange was speaking with the officers, the officers noted that she appeared to be under the influence of “some type of drug.” The officers asked Strange if she had taken any medication, but she denied having taken medication. The officers also found an empty bottle of Vicodin. The prescription, which was in Linda’s name, was for 90 pills but had been filled 18 days before. When Officer Dunn asked where Linda was, Strange responded that she had not seen her in days and that only she and her sister, Sylvia, lived in the house.

Linda, Sylvia, and Strange’s other sister, Jessica, arrived at the house. Sylvia told Officer Dunn that she had called the Sheriff’s Department because Strange had talked about committing suicide. Sylvia also said Strange stated that she did not want the child. Jessica told the officers the same details as Sylvia. Linda told the officers that she did not know about Strange’s thoughts of suicide, but that all three of her daughters, including Strange, had a drug problem. Officer Dunn asked Strange if anyone could come and care for the child. Strange said there was no one who could take care of the baby.

Officer Dunn contacted the Department of Family & Protective Services (DFPS) and an ambulance to evaluate Strange and the child. The emergency medical technicians stated that they believed that Strange had taken some sort of medication but that the child was fine. Around the same time, the DFPS caseworker, Angela Woodford, arrived at the home to take custody of the child. Woodford stated that DFPS had to remove the child from the home until an investigation could be completed but that Strange could release the child to the custody of a friend or relative, as long as that person could pass a criminal background check. However, Strange was unable to give Woodford the name of any friend or relative who could pass a criminal background check. Woodford then arranged for the child to go to a foster family pending the investigation.

On March 27, 2006, DFPS petitioned the Galveston County District Court for emergency temporary custody. The trial court granted DFPS temporary sole managing conservatorship of the child and ordered the case to mediation. On April 5, 2006, the trial court issued a docket control order, which set a February 3, 2007 deadline for all pretrial amendments and a February 26, 2007 deadline for all jury questions and instructions. The order also set a pretrial hearing for March 2, 2007 and trial for March 5, 2007.

The mediation took place on April 5, 2006, and the DFPS caseworker stated that the goal of the mediation was family reunification. During mediation, Strange and DFPS created a Family Service Plan, which Strange had to complete before she could regain custody of the child. Strange agreed to submit to a psychological evaluation and parenting assessment, a drug and alcohol assessment, random drug testing, and to complete supervised visits with the child. Strange also agreed to cooperate with DFPS and to maintain a stable home environment and employment. At mediation, the parties decided that, upon completion of a home study, the child would be placed with Linda, the child’s maternal grandmother.

After mediation, DFPS sought to perform a home study on Linda. Woodford went to the home to perform the scheduled preliminary walk-through of the home, but no one answered the door when she knocked, and no one answered at the phone number she had. Woodford returned to the office, and her supervisor located a different phone number for Linda. Linda answered at the new phone number but seemed to be asleep and was unaware that the time of the appointment had passed. DFPS completed the preliminary walk-through the following week. In the weeks after the home study was completed, however, DFPS received a voice mail message from Linda, in which she stated that she did not want to care for the child. On April 18, 2006, Linda also met with the new DFPS caseworker, Kathy Fee, and told her that she was not sure she wanted to care for the child for 18 years. Linda then stated that she did want the child, but later again repeated that she did not want to care for the child. Fee responded that the child needed consistency and Fee decided to leave the child in temporary foster care, where she had been since she was removed from Strange’s custody, but she proceeded to seek reunification with Strange.

In the months after mediation, Strange failed to comply with the requirements of the service plan. In May 2006, Strange’s drug test was positive for marijuana. Strange was also released from an outpatient drug rehabilitation facility for excessive absenteeism. Strange told Fee in June 2006 that she was addicted to prescription drugs. Strange stated that she was unemployed and had no way of seeking employment. She and the child lived with Strange’s mother and depended on friends for financial support. During Strange’s July visit with the child at the child’s foster home, the child’s foster mother noted that Strange was not attentive and seemed tired and depressed. Strange admitted to being under the influence of drugs during this visit. Strange failed to visit the child in August and did not contact DFPS to schedule a September visit. Strange failed a drug test in September 2006.

At the September permanency hearing, DFPS stated that it was changing its goal from reunification to termination and adoption by a non-relative. At trial, DFPS presented testimony from the two DFPS caseworkers and the child’s foster mother, who each testified that termination was in the child’s best interest. Strange testified that she had struggled with drug addiction since she was 17 and that her sisters had abused drugs as well. Linda testified that she thought Strange would never get her child back. When asked if Strange’s rights should be terminated because she is a habitual drug user and had a criminal history, Linda responded, “Why not?”

Best Interest of the Child

A. Standard of Review

In her first issue, Strange asserts that the evidence is factually insufficient to show that it is in the best interest of the child for the parent-child relationship to be terminated. In termination-of-parental-rights cases, due process requires that the plaintiff support his claims of termination by clear and convincing evidence. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 193 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982); In re B.L.D. & B.R.D., 113 S.W.3d 340, 353–54 (Tex. 2003)). “Clear and convincing evidence” is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the claims sought to be proved. Tex. Fam. Code Ann. § 101.007 (Vernon 2002). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which the opposing party had the burden of proof, that appellant must demonstrate that there is insufficient evidence to support the finding. Vasquez, 190 S.W.3d at 193; see also Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In analyzing factual sufficiency, we consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Vasquez, 190 S.W.3d at 193; see also In re J.F.C., A.B.C., & M.B.C., 96 S.W.3d. 256, 265–66 (Tex. 2002). A factual sufficiency challenge will be overruled if, considering all the evidence in the record that both supports and contradicts the trial court’s finding, the fact finder reasonably could form a firm conviction or belief that the termination of parental rights is in the best interest of the child. In re C.H., 89 S.W.3d 17, 28–29 (Tex. 2002); Vasquez, 190 S.W.3d at 193–94.
In determining whether termination is in the child’s best interest, we apply the following factors laid out in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors include, but are not limited to:
1. The child’s desires;

2. The child’s physical and emotional needs, now and in the future;

3. The emotional and physical danger to the child, now and in the future;

4. The parental ability of the individuals seeking custody;

5. The programs available to assist these individuals in promoting the child’s best interest;

6. The plans for the child by the individual or agency seeking custody;

7. The stability of the home or proposed placement;

8. The parent’s act or omissions that may indicate the existing parent-child relationship is not the proper one; and

9. Any excuse for the parent’s acts or omissions.

Holley, 544 S.W.2d at 371–72. The party in favor of termination is not required to prove all of the Holley factors, particularly where there is undisputed evidence that the parent-child relationship endangers the child’s safety. See In re C.H., 89 S.W.3d at 27. Additionally, absence of evidence about some of the Holley factors does not preclude a fact finder from reasonably forming a strong conviction that termination is in the child’s best interest. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist] 2003, no pet.).

1. Desires of the child

C.S. is now approximately two years old and has been in foster care since she was eight months old. Because she is too young to express her desires, this factor does not demonstrate whether termination of Strange’s parental rights is in the best interest of the child.

2. Emotional and physical needs of the child now and in the future

Strange contends that no evidence shows that she did not provide appropriate medical care, food, clothing, or shelter, and that there is no evidence of neglect. Contrary to this claim, the record shows that police officers found the hungry infant child next to an unconscious Strange. Strange also asserts that she and her mother Linda are bonded to the child. However, the record shows that Strange missed opportunities to visit her child and, at least once, visited the child after ingesting narcotics. Strange testified that she struggled with drug addiction and was relying on a friend for financial support. She also testified that she was unemployed with no way of seeking employment. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

3. Emotional and physical danger to the child now and in the future

As Strange accurately points out, no evidence in the record shows physical abuse of the child. However, Sylvia told police that Strange had threatened to kill herself. The record shows Strange continues to abuse and is addicted to narcotics. Strange has failed to receive treatment that has been offered to her for her drug addiction. Also, Strange did not show an interest in the child. Strange failed to appear for a visit and attended a visit after ingesting narcotics. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

4. Parental abilities of the individual seeking custody

Strange contends that she provided the child with a safe and stable home; offered Linda as an “appropriate placement”; “attempted to do all that CPS has asked her to do”; and “loves her child.” The record, however, does not support these claims. Linda missed her initial appointment for a home study and vacillated whether she wished to provide long-term care for the child. Police officers found the baby, hungry, next to an unconscious Strange. Strange failed to comply with the requirements of the service plan, continued to use drugs, used drugs before a visit with the child, and missed opportunities to meet with the child. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

5. Programs available to assist Strange to promote the best interest of the child

Strange has had several opportunities to get help with her drug abuse, but has failed to do so. She was dismissed from an outpatient program for excessive absenteeism. She acknowledged an addiction to drugs, and asked Fee for information on a treatment center. Fee put Strange in contact with several residential treatment centers with available space, but Strange failed to follow-up with any of them. Thus, although there are programs that have been made available to help Strange overcome her addiction, Strange has failed to accept help from those programs. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

6. Plans for the child by person seeking custody

The DFPS caseworkers testified that DFPS was seeking to be named sole managing conservator so that C.S. could be adopted. The child’s foster family indicated that they had plans to adopt if possible and that the child would be a part of whatever their family did. Strange wants the child to be placed with her mother, Linda. However, Linda was equivocal and seemed reluctant to take on the responsibility of caring for the child for the next 18 years. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

7. Stability of the home or proposed placement

If Strange’s rights were terminated, DFPS intends to pursue adoption. The child’s foster mother testified that she had been approved by DFPS over a period of 16 months and that she previously had two other foster children placed in her home. Nothing in the record suggests that the proposed foster/adoption placement would be unstable. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

8. Acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper

Strange contends she has demonstrated she is capable of parenting her child and can keep a stable and safe home. The same circumstances described in number three demonstrate that the existing parent-child relationship is not a proper one and that termination of Strange’s parental rights is in the best interest of the child.

9. Any excuse for the acts or omissions of the parent

Strange gave no reason for her failure to attend or schedule visitation with the child, or for her absenteeism from her drug rehabilitation program. She has not demonstrated any ability to maintain a stable environment for the child. This factor demonstrates that termination of Strange’s parental rights is in the best interest of the child.

10. Conclusion

An analysis of the Holley factors shows that a fact finder reasonably could form a firm conviction or belief that termination is in the best interest of the child. We conclude that the evidence is sufficient to support the jury’s finding that termination was in the best interest of the child. We overrule Strange’s first issue.

Motion to Relax Docket Control Order & Counterpetition

In her second issue, Strange contends that the trial court abused its discretion by denying her Motion to Relax the Docket Control Order and striking her counterpetition. Strange filed a Motion to Relax the Docket Control Order and Motion for Amended Respondent’s Pleadings. In this motion, she asked the court to allow her to file a counterpetition in the Suit Affecting the Parent-Child Relationship to request that Linda be named sole managing conservator of the child. A trial court abuses its discretion when its actions are arbitrary or unreasonable. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

Strange asserts that the trial court abused its discretion in denying her Motion to Relax the Docket Control Order. A trial court has broad discretion in controlling its docket. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). The trial court filed a control order on April 6, 2006, setting a February 3, 2007 deadline for the filing of all pleading amendments and pretrial matters. Strange filed the counterpetition on February 22, 2007, after receiving DFPS’s proposed jury charge, which made no mention of Linda as a possible conservator. Strange claims that this was the first time she realized that Linda was no longer being considered as a possible placement. However, the record shows that on September 12, 2006, DFPS filed a permanency plan and progress report, in which DFPS stated that its permanency goal was “unrelated family adoption.” Therefore, Strange had roughly five months to file her counterpetition from the time that she learned that DFPS was seeking unrelated adoption. Strange gives no other reason for her failure to file the counterpetition before the docket control order’s deadline. The trial court was not unreasonable in enforcing its docket control order under these circumstances, which show that Strange should have been aware of DFPS’s intentions for nearly five months. Id. We hold that the trial court did not abuse its discretion by denying Strange’s Motion to Relax the Docket Control Order.

Strange also asserts that the court abused its discretion in striking her counterpetition, which Strange filed with her Motion to Relax the Docket Control Order. In her counterpetition, Strange sought to have her mother, Linda, named sole managing conservator of the child after Strange received DFPS’s proposed jury charge, which made no mention of Linda. On appeal, Strange contends that, under Rule 66 of the Rules of Civil Procedure, she had a right to amend her petition “subject only to [DFPS’s] right to show surprise.”

Appellant approaches this issue under Rule 66, which applies to amendment to the pleadingsmade during trial. Rule 63 applies to amendments to the pleadings made pretrial. BecauseStrange filed her counterpetition roughly 10 days before trial and the trial court struck thecounterpetition during a pretrial hearing, we have addressed the issue under Rule 63. However, the trial court’s discretion to disallow amendments made under both Rule 63 andRule 66 is reviewed under the same framework. See Greenhalgh v. Serv. Lloyds Ins. Co., 787S.W.2d 938, 939 (Tex. 1990).

The right of amendment under Rule 63 is subject to the opposing party’s right to show surprise, as determined in the exercise of the trial court’s discretion. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980). This showing may be based on the trial court’s conclusion that the amendment on its face is calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial. Id.; see also Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990).

Therefore, in reviewing the trial court’s ruling, the fact that the objection was not expressly based on the grounds of surprise is not controlling. Hardin, 597 S.W.2d at 349. When the trial court refuses amendments that introduce new substantive matter under Rule 63, the burden falls on the complaining party to show an abuse of discretion, rather than on the opposing party to show surprise. Id. On appeal, the complaining party must clearly show an abuse of discretion in order to disturb a trial court’s ruling. Id.

Strange’s new petition sought to change who the court would appoint as managing conservator. The trial court could have reasonably concluded that the amendment, filed less than 10 days before trial and more than three weeks after all amendment were to be filed under the docket control order, would “reshape the cause of action” and prejudice DFPS. See Hardin, 597 S.W.2d at 344.

Although the original petition does include language suggesting that DFPS would first pursue conservatorship by a relative, DFPS had made clear to the court and to Strange that their goal was “unrelated family adoption” in September 2006 when it filed a permanency progress report. Strange points to no other evidence that suggests that the court abused its discretion. We hold that the trial court did not abuse its discretion in striking Strange’s counterpetition.

We overrule Strange’s second issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala
Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.