Wrongful Termination of Employment: Can Sabine-Pilot claim be brought against supervisors in their individual capacity?

Employee's Choice: Do as told and commit illegal act or risk getting fired?

SCOPE OF SABINE-PILOT EXCEPTION TO EMPLOYMENT-AT WILL NARROWED

Can supervisors be held liable individually for wrongfully terminating an employee who refuses to commit an illegal act when instructed to do so under the Sabine-Pilot exception to the employment-at will doctrine?

Justices on the Fourteenth Court of Appeals split on how to answer that question. Characterizing the issue as one of first impression (i.e., no controlling case law exists), the panel majority, led by Justice Brock Yates as author of the court's opinion, votes to let the bosses off the hook.

Senior Justice Harvey Hudson writes a vigorous dissent, detailing the egregious conduct of the defendants, who fired an employee for refusing to commit criminal acts to increase revenues for the business by billing for services not rendered, and subsequently tried to destroy the former employee's professional career.

Physio, Ltd v. Naifeh (Tex.App. - Houston [14th Dist.] Feb. 4, 2010)(Yates) (employment law - wrongful termination; liability on Sabine-Pilot wrongful termination claim)
Appellants appeal the trial court’s judgment holding them individually liable for firing appellee for the sole reason that she refused to perform an illegal act. See Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). Because we hold that the Sabine Pilot doctrine should not be extended to impose liability on individual employees rather than the plaintiff’s employer, we reverse and render.
DISMISSED IN PART AND REVERSED AND RENDERED IN PART:
Opinion by Justice Brock Yates
Before Justices Brock Yates, Hudson and Sullivan
14-08-00017-CV Physio GP, Inc., Physio, Ltd, Tanja Saadat and Shawn Saadat v. Natalie Naifeh
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher (who is now a Justice on the same court of appeals)

Dissenting Opinion by Justice Hudson in Physio GP, Inc. v. Natalie Naifeh (Sabine Pilot claim against supervisors individually should be viable)

DISSENTING OPINION BY JUSTICE HUDSON:

Does the Sabine Pilot[1] exception to the “employment-at-will doctrine” extend to an individual defendant who is not the employer of the plaintiff? In other words, may an individual, who is not the employer of the plaintiff, be liable for wrongful discharge of the plaintiff under the Sabine Pilot doctrine? The majority answers negatively and supports its position with cogent arguments and authorities. However, as the majority acknowledges, this is an issue on which jurists have struggled and the states are divided. Unlike my colleagues, I find myself persuaded by a contrary rationale and opposing authorities.

The majority argues the Saadats could not logically be liable for wrongful termination because they had no authority to fire Naifeh. The majority concludes that only the employers, i.e., Physio GP, Inc. and Physio, Ltd., had the power to terminate Naifeh’s employment. While the rationale has a logical allure, it rests on a legal fiction. In the real world, no one disputes the fact that Naifeh was fired by Tanja Saadat. Moreover, no one disputes the effectiveness of that termination. Only in the most abstract sense can it be said that Tanja did not fire Naifeh, and it is little comfort to her to now learn that Tanja had no intrinsic, individual authority to terminate her employment.

The majority’s strongest argument, in my mind, is that the specter of individual liability could discourage corporate supervisors from terminating employees in legitimate situations. In the majority of cases, an employer is shielded by the employment-at-will doctrine. The doctrine does not stem from an inherent right of the employer, but from the absence of a contractual agreement regarding the period of employment. Thus, employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). By definition, the employment-at-will doctrine does not require an employer to be reasonable, or even careful, in making its termination decisions. Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 609 (Tex. 2002).

Further, I do not doubt that the employment-at-will doctrine is decidedly beneficial to economic efficiency. Nor do I dispute the notion that fear of unjustified litigation can cripple corporate productivity. However, the Texas Supreme Court recognized a common law exception to the employment-at-will doctrine in Sabine Pilot when a termination is based on an employee’s refusal to do an unlawful act. The wisdom of that decision and its public policy ramifications are not at issue here. Having found such an exception, it is our duty, as in intermediate appellate court, to give it application where appropriate.

There are good reasons to believe a corporate employee may be liable in his or her individual capacity for wrongful termination. First, the tort is intensely personal. It is not based on negligence, but on intentional malice. In other words, the gravamen of wrongful termination is not found in some corporate mistake, but in the uniquely human passion of hatred, spite, meanness, and revenge. For example, the uncontroverted evidence in this case shows that Tanja asked Naifeh to participate in a massive insurance fraud scheme by signing patient records reflecting treatments and services that had never been administered. Naifeh refused, and she was fired.

The Saadats then set out on a campaign to destroy Naifeh’s credibility and professional reputation. The Saadats alleged that Naifeh was fired because she had performed unauthorized treatment on a patient’s knee. The allegation was untrue, and the Saadats later admitted at a Texas Workforce Commission hearing that they had a copy of the prescription, authorized by the patient’s physician, for treatment of the knee.

The day after Naifeh was fired, the Saadats filed a police report falsely alleging Naifeh had stolen documents. The Saadats also manufactured a fake “Confidentiality Agreement” (with Naifeh’s forged signature) stating that “all information related to Physio[’s] day-to-day operation in regards to patient information and billing shall be kept confidential[,] and I shall not share any of this information with any patient or any individual.” Using the fabricated Confidentiality Agreement and false police report, the Saadats asserted claims against Naifeh for misappropriation of confidential and proprietary information and conspiracy to misappropriate confidential and proprietary information. They also filed a claim under the Texas Theft Liability Act.

The Saadats also created multiple false disciplinary records and submitted them to the Texas Workforce Commission in an attempt to prevent Naifeh from receiving unemployment benefits. Finally, the Saadats submitted multiple false disciplinary records to the Texas Physical Therapy Board in an effort to have Naifeh’s professional license revoked.

The tort committed here is akin to assault, battery, false imprisonment, and other intentional torts. The conduct was purposely directed at Naifeh with the deliberate intention of inflicting an injury upon her. This is the very behavior Sabine Pilot was intended to prevent, and there is no Texas authority restricting liability solely to the corporate employer.

As the majority notes, other states have considered, with mixed results, whether the common law tort of wrongful discharge can expose a corporate employee to personal liability.[2] Some view wrongful discharge as any other tort and impose individual liability on employees for their own tortious conduct.[3] Others have reasoned that the tort can only be committed by the person or legal entity that employed the terminated employee.[4] “These courts reason that an individual officer or employee of a corporation cannot commit the tort of wrongful discharge because an individual officer or employee has no authority separate from the authority exercised on behalf of the corporation to discharge an employee of the corporation.” Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 775 (Iowa 2009). Thus, they reason that “the existence of an employment contract is . . . the most fundamental prerequisite to a claim of wrongful discharge.” Bourque v. Town of Bow, 736 F. Supp. 398, 401 (D.N.H. 1990). Accordingly, these courts hold that “wrongful discharge is a corporate tort within a corporate setting, not an individual tort.” Jasper, 764 N.W.2d at 776.

In Texas, however, the common law tort of wrongful discharge is not derived from principles of contract law; neither does it spring from a contract of employment. If the employee’s termination violates some contractual provision, he can sue for its breach. It is precisely because an “at-will” employee is not protected from a “bad cause” termination; because he has no contractual protections; and because public policy seeks to discourage criminal acts, that Sabine Pilot created a narrow exception to the employment-at-will doctrine. Further, it is the general rule in Texas that a corporation’s employee is personally liable for tortious acts which he directs or participates in during his employment. Walker v. Anderson, 232 S.W.3d 899, 918 (Tex. App.—Dallas 2007, no pet.).

A corporate shareholder or director, for example, who wrongfully terminates an employee is liable for tortious interference with the corporation’s employment contracts if the action is willful, intentional, and advances the interest of the actor rather than the interests of the corporation. See Holloway v. Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995). Here, the evidence and the reasonable inferences there from would be sufficient to establish that Tanja’s actions were willful and intentional, that although it was not in Physio’s interest to terminate Naifeh for refusing to commit a criminal act, Tanja acted in her own interests in doing so.[5]

In my view, the public policy considerations raised in Sabine Pilot, i.e., to relieve “at-will” employees from being pressured to commit criminal acts, would rationally apply to both the employer and its agents. The pressure exerted against Naifeh to falsify records was no less intimidating because it was asserted by a fellow employee. Tanja had the power to terminate Naifeh and did so because she would not become a party to a criminal enterprise. Her conduct constitutes the very essence of the common law tort created by Sabine Pilot.

Accordingly, I respectfully dissent.

/s/ J. Harvey Hudson

Senior Justice

Panel consists of Justices Yates (majority), Sullivan, and Senior Justice Hudson.*

[1] Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985).

[2] Other jurisdictions take varied approaches to claims of individual liability for wrongful termination. At one end of the spectrum, California, Illinois, and Kansas do not recognize liability for wrongful-discharge claims against individual non-employers. See Reno v. Baird, 957 P.2d 1333, 1334 (Cal. 1998) (holding that supervisors may not be sued individually under California’s Fair Employment and Housing Act, and stating that this holding “also applies to common law actions for wrongful discharge”); Buckner v. Atl. Plant Maint., Inc., 694 N.E.2d 565, 569–70 (Ill. 1998) (no personal liability for retaliatory discharge of subordinate for filing a workers’ compensation claim); Rebarchek v. Farmers Coop. Elevator, 35 P.3d 892, 903–04 (Kan. 2001) (same). At the opposite end of the spectrum, Iowa, New Jersey, Pennsylvania, and West Virginia recognize the personal liability of individual non-employers for wrongful termination even when the individual acted within the course and scope of his or her employment in firing another employee. See, e.g., Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 777 (Iowa 2009) (holding that liability for the tort of wrongful discharge based on refusal to commit an unlawful act can extend to the corporate officers who authorized or directed the discharge); Ballinger v. Del. River Port Auth., 800 A.2d 97, 110 (N.J. 2002) (“[A]n individual who personally participates in the tort of wrongful discharge may be held individually liable.”); Kamensky v. Roemer Indus., Inc., 1 Pa. D. & C.4th 497, 499–500 (1988) (president of employer corporation is subject to personal liability for terminating a reinstated worker’s employment for failure to withdraw an unemployment compensation claim); Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692, 698 (W. Va. 1982) (“The discharge serves to fix responsibility on the employer but this does not mean that another employee who has been the principal protagonist in obtaining the employee’s discharge would not also be liable.”). Other jurisdictions consider whether the “principal protagonist” acted within the course and scope of his own employment when wrongfully discharging another employee. For example, the Mississippi Supreme Court has held that an individual is not liable for his actions in wrongfully discharging an employee if the individual acted within the course and scope of his employment, but it has not addressed the question of whether an individual should be held liable for wrongful termination if he acted outside his employment duties or contrary to the employer’s interests. See DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351, 358–59 (Miss. 2008) (en banc); see also Bourgeous v. Horizon Healthcare Corp., 872 P.2d 852, 855–56 (N.M. 1994) (leaving open “the question of whether a retaliatory discharge claim lies against a supervisor, agent, or coemployee if the firing was an intentional act done solely for the supervisor, agent or coemployee’s own interest and therefore outside the scope of employment”).

[3] See DeCarlo v. Bonus Stores, Inc., 512 F.3d 173, 176–77 (5th Cir. 2007) (collecting cases); Higgins v. Assmann Elecs., Inc., 173 P.3d 453, 458 (Ariz. Ct. App. 2007); Ballinger, 800 A.2d at 110–11; Harless, 289 S.E.2d at 698–99.

[4] See Hooper v. North Carolina, 379 F. Supp. 2d 804, 814–15 (M.D.N.C. 2005) (North Carolina law); Miklosy v. Regents of the Univ. of Cal., 188 P.3d 629, 644–45 (Cal. 2008); Reno, 957 P.2d at 1347; Buckner, 694 N.E.2d at 569–70; Rebarchek, 35 P.3d at 904.

[5] Although no question of whether Tanja’s conduct was itself criminal is at issue in this civil case, the difference between Tanja’s interests and Physio’s interests is easily seen when one considers separately the risks and benefits to each arising from Tanja’s conduct in (a) altering the documents, and in (b) asking Naifeh to sign the altered documents and in terminating her for refusing to do so. It was conceivably in Physio’s financial interests to inflate its bills, and thus, one could make a colorable argument that by altering records used to support its billing practices, Tanja was acting in Physio’s best interests. But because a person who makes false statements in connection with the delivery of or payment for health care services can face imprisonment for up to five years, the person who makes such a statement has a personal stake, distinct from that of a corporate employer, in avoiding detection. A reasonable factfinder therefore could conclude that in asking Naifeh to sign the patient records, Tanja was acting in her own interest to conceal the fact that the documents had been altered, so that if it were discovered that insurers were billed by Physio for services that were not performed, it would appear that Naifeh and not Tanja was responsible.

* Senior Justice J. Harvey Hudson, sitting by assignment.

RELATED BLAWGPOST(S):
Houston Court of Appeals Nixes Individual Supervisor Liability in Public Policy Wrongful Termination Claim
Individuals could not be held personally liable for wrongful discharge in violation of public policy
KEY WORDS: employment at will doctrine in Texas, public policy exception to at-will employment, wrongful termination of employment, discharge, refusal to commit illegal act, whistleblowing, private employer, employer, corporate liability vs. individual personal liability of manager, supervisor, owner for Sabine-Pilot wrongful termination claim

Caveat Counsel: Oral Motion for Continuance Won't Do

Consequences of noncompliance with rules of procedure can be dire. Motion for Continuance must be in wrting and sworn. Error must be preserved for appellate review. Court of Appeals here enforces requirements in a termination of parental rights appeal:

In his sole issue, Orosco asserts that the trial court abused its discretion when it did not grant his oral motions for continuance. We conclude that Orosco failed to preserve error for appellate review.

A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law. Tex. R. Civ. P. 251; In the Interest of B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *4 (Tex. App.- Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).

Both of Orosco's motions for continuance were oral, and the record does not contain a written motion for continuance or an affidavit. The record also does not reflect that the parties consented to a continuance, nor does Orosco assert that a continuance should have been granted by operation of law.

Because Orosco did not comply with Rule 251, the trial court did not abuse its discretion by failing to grant a continuance. See In the Interest of B.S.W., 2004 WL 2994015, at *4; Ohlhausen v. Thompson, 704 S.W.2d 434, 436B37 (Tex. App.- Houston [14th Dist.] 1986, no writ).

In addition, Orosco failed to preserve error under Texas Rule of Appellate Procedure 33.1, which generally requires a party complaining on appeal to have obtained an adverse ruling on the appellate complaint in the trial court. See Tex. R. App. P. 33.1(a). The appellate record reflects that the trial court did not rule on Orosco's motions for continuance, either expressly or implicitly. Orosco did not request the trial court to rule on these oral motions, nor did he object to any alleged refusal of the trial court to rule on them. See Clarke v. Hunter's Glen Comty. Ass'n, No. 14-03-00971-CV, 2004 WL 1313294, at *1 (Tex. App.- Houston [14th Dist.] June 15, 2004, no pet.) (mem. op.). By failing to do so, Orosco waived the complaint. See id.

The Texas Supreme Court has ruled that a person in Orosco's position does not have an absolute right to be present at trial. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Orosco's counsel did not preserve error regarding Orosco's request for a continuance.

In addition, Orosco does not argue or brief on appeal, and the record does not reflect, that had he been present at trial, the trial court's judgment probably would have been different.Because Orosco failed to preserve error on the only issue he asserts on appeal, we affirm the trial court's judgment.

In the Interest of TDN (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost)(termination of parental rights, denial of oral motion for continuance) Concurring Opinion by Justice Seymore

Jailed Parents' Access to Court in Termination Suits

Justice Seymore writes separately in termination appeal to express concern about denying jail inmates access to court in proceedings to terminate their rights.

Inmate at issue in case waived procedural rights by counsel's failure to object and preserve error for appeal. Bench warrant was issued for final hearing, but could not be executed because inmate had been transferred. Oral motion for trial continuance to allow inmate to appear at a later date held insufficient.

C O N C U R R I N G
M E M O R A N D U M O P I N I O N

I concur with majority's conclusion that Orosco failed to preserve error for appellate review. However, I do not lightly join in a disposition upholding the trial court's order terminating parental rights.

Accordingly, I write separately to address implicit denial of Orosco's access to the court while incarcerated.

It is my considered opinion that our courts should exercise great caution to protect the rights of the incarcerated when conducting a civil proceeding that involves termination of parental rights. Litigants should not be denied access to the courts simply because they are incarcerated. In re Z.L.T., 124 S.W.3d 163, 165-166 (Tex. 2003).

However, an inmate does not have the absolute right to appear in person in every court proceeding. Id. Trial courts should consider a number of factors when deciding whether to grant an inmate's request for a bench warrant, including:(1) the cost and inconvenience of transporting the prisoner to the courtroom;(2) the security risk the prisoner presents to the court and public;(3) whether the prisoner's claims are substantial;(4) whether the matter's resolution can reasonably be delayed until the prisoner's release;(5) whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means;(6) whether the prisoner's presence is important in judging his demeanor and credibility;(7) whether the trial is to the court or a jury; and(8) the prisoner's probability of success on the merits. Id.

Our rules place the burden on litigants to identify with sufficient specificity the grounds for the ruling they seek. Id. Since a prisoner has no absolute right to be present in a civil action, the prisoner requesting a bench warrant must justify the need for his presence. Id. Orosco argues that his appearance in court "would neither have hindered nor burdened the daily operations of the court." Orosco fails to address all of the above factors or point this court to portions of the record which might support an argument that the trial court violated his fundamental right to participate in proceedings which could result in termination of parental rights.

Accordingly, I concur with the majority's conclusion that the trial court did not abuse its discretion by refusing to grant Orosco's motion for continuance.

/s/ Charles W. Seymore

Justice

Judgment rendered and Majority and Concurring Memorandum Opinions filed June 26, 2008.Panel consists of Justices Fowler, Frost, and Seymore. (Frost, J., majority).

In the Interest of TDN, No. 14-07-00387-CV (Tex.App.- Houston [14th Dist] June 26, 2008)(Frost) (termination of parental rights, oral motion for continuance deficient, error not preserved)
Before Justices Fowler, Frost and Seymore
In the Interest of T.D.N.
Appeal from 313th District Court of Harris County
Concurring Opinion by Justice Seymore

CPS Suits: Termination of parent-child relationship reversed

In the Interest of AS, DS, and LAS (Tex.App.- Houston [14th Dist.] Mar. 4, 2008)(Fowler) (DPFS initiated suit seeking termination of parental rights, reversal of judgment)
Opinion by Justice Fowler
Panel members: Justices Leslie Brock Yates, Wanda Fowler and Eva Guzman
Full case style: In the Interest of A.S., D.S. and L.A.S
Appeal from 314th District Court of Harris County (Judge John Phillips)
Disposition: Reversed and rendered in part and remanded in part

This is an appeal from a judgment terminating appellants' parental rights to their minor children. In five issues each, appellants challenge the legal and factual sufficiency of the evidence underlying the findings in the termination order and the appointment of appellee Department of Family & Protective Services ("the Department") as sole managing conservator. We reverse and render in part, and reverse and remand in part.

DFPS Suits: Mother's low income a consideration in terminating her parental rights

Termination of parental rights as an alternative to income support policy?

In this termination case brought by CPS, the mother is considered too poor to keep her child (among other shortcomings), but not poor enough to justify waiver of court fees so she could pursue her appeal. In discussing the mother's ability to provide for her child, the court, in an opinion by Justice Evelyn Keyes, finds that the mother did not have enough income to support her child, but did not consider eligibility for earned income tax credit, public assistance and/or child support. The Court affirms the trial court's order terminating the mother's parental rights.

Hopkins v. DFPS No. 01-07-00313-CV (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Keyes)(termination of parental rights cases , child welfare, poverty)

Opinion by Justice KeyesBefore Justices Taft, Keyes and AlcalaRobyn Rachelle Hopkins, Guadalupe Padilla v. Department Family & Protective Services

Appeal from 315th District Court of Harris County (Judge Michael H. Schneider Jr.)

Disposition: Order terminating parental rights affirmed

MEMORANDUM OPINION

After a bench trial, the trial court terminated the parent-child relationship between appellants, Robyn Rachelle Hopkins and Guadalupe Padilla, and their daughter, L.N.H. In two issues, Hopkins
Guadalupe Padilla filed a notice of appeal in the trial court, but he has not filed abrief. We dismiss Padilla’s appeal for want of prosecution under Tex. R. App. P.42.3(b). We consider the termination only in regard to Hopkins’s relationship withL.N.H.
argues that (1) the evidence was not sufficient to support the trial court’s termination of her parental rights and (2) the trial court abused its discretion in denying her affidavit of indigence.

We affirm.

Background

L.N.H. was born November 9, 2004. Prior to her birth, Hopkins had already had multiple referrals to the Department of Family and Protective Services (DFPS) regarding her parenting of her three older children. None of those children is now parented by Hopkins. Hopkins also has a prior criminal record, including convictions for driving while intoxicated, possession of a controlled substance, and assault.

DFPS removed L.N.H. from Hopkins’ care in January 2006, after Hopkins became intoxicated and pushed the stroller containing L.N.H. into a bush. In March 2006, Hopkins missed a court hearing in which DFPS reviewed a service plan that was intended to help Hopkins address the issues that led to her losing custody of L.N.H. The plan required Hopkins to complete parenting classes, to complete a substance abuse assessment and follow all recommendations, to complete a psychiatric evaluation and follow all recommendations, to participate in individual therapy, to attend all hearings and required meetings, and to maintain stable housing and employment for at least six months. In April 2006, DFPS made the necessary referrals to allow Hopkins to comply with her service plan.

Over the months that followed, Hopkins made attempts to comply with the service plan by attending parenting classes, AA meetings, and hearings and other meetings with DFPS. Hopkins eventually completed the required substance abuse assessment and psychiatric evaluation, but, at the time of the trial, she had not complied with all of the recommendations made by the substance abuse and psychiatric centers.

At trial, Hopkins acknowledged that she had made a lot of bad choices in the past and characterized her behavior as irresponsible. She testified that she had a much better support system now, including members of her church and AA groups. Hopkins gave other testimony that she suffered from depression and anxiety, although she suffered from them less now than she did in the past. She also testified that when she ran out of one of the prescribed medications, she decided without consulting her doctor that she would not get a refill because she did not feel that it was helping. She did not participate in any of the individual counseling required in her service plan or comply with the recommendations resulting from the psychiatric evaluation as required by the service plan.

Hopkins also testified about her relationship with L.N.H. She stated that she loved her daughter very much and was committed to providing a stable home for her. She testified about the nature of her visits with L.N.H., stating that she would go every other week to visit her daughter and that they would play, watch cartoons, or do other tasks together such as cooking and laundry. Hopkins testified that she brought gifts for L.N.H. when she came to visit and that L.N.H. was being supported by money from an investment that belonged to her. However, later testimony showed that the money being used for L.N.H.’s care came from an investment made by Hopkins’ grandfather and left with Hopkins’ mother, Carla Roberts, as a trustee. The grandfather intended for the money to be used for Hopkins’ children, so Roberts used it to pay for childcare for Hopkins’ middle two boys and for a nanny for L.N.H.

Hopkins introduced pay stubs that showed that her monthly income was approximately $1,400. Her expenses were $440 per month for rent, approximately $150 per month for her vehicle, plus other living expenses. Hopkins testified that if she regained custody of L.N.H., she could obtain state certified childcare for $530 a month and that L.N.H.’s insurance coverage would cost her approximately $96 a month. There was also evidence that Hopkins moved several times over the course of the year and had not procured stable housing.

Hopkins’ mother, Carla Roberts, also testified at trial. L.N.H. had been placed with Roberts by DFPS after L.N.H. was removed from Hopkins’ care. Roberts testified that it appeared that some changes had happened in Hopkins’ life, and she believed that Hopkins was trying, but she was very skeptical that the changes would last because she had seen Hopkins in similar situations before. Roberts testified that she did not think that Hopkins had really done anything differently this time compared to previous occassions when Hopkins had tried to get sober and to turn her life around. Roberts testified that she believed Hopkins loved L.N.H. and had been a good mother when L.N.H. was an infant, but that Hopkins was too unstable to provide a permanent, safe home for L.N.H. Roberts favored placing L.N.H. permanently with some of her relatives in Tennessee because Roberts’ age prevented her from caring for L.N.H. permanently.

Jeff Edwards, L.N.H.’s guardian ad litem, and Kimberly Morgan, the DFPS case worker, also testified at trial. They both testified that they believed termination of the parent-child relationship between Hopkins and L.N.H. was in L.N.H.’s best interest and that they believed L.N.H. would do well with the relatives in Tennessee. Morgan testified that those relatives had completed the required home study and had had a promising visit with L.N.H. at some point before trial. Morgan also testified that Hopkins had not completed the service plan created for her by DFPS. She testified that Hopkins made only a “minimal effort [at complying with her service plan] ten months into the case.” Morgan also testified that Hopkins had missed more than one hearing and had failed to attend the court-ordered mediation.

In its final judgment, the trial court made the following findings:

The Court finds by clear and convincing evidence that termination of the parent-child relationship between [Hopkins] and the child, [L.N.H.], the subject of this suit[,] is in the child’s best interest.

Further, the Court finds by clear and convincing evidence that [Hopkins] has: (1) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical and emotional well-being of the child, pursuant to § 161.001(1)(E) of the Texas Family Code; (2) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261, Texas Family Code[, pursuant to § 161.001(1)(I) of the Texas Family Code]; [and] (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother 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, pursuant to § 161.001(1)(O) of the Texas Family Code[.]

Hopkins filed a notice of appeal and an affidavit of indigence. The District Clerk challenged the affidavit, and a hearing was conducted in which the trial court heard more evidence of Hopkins’ financial situation. The trial court then denied Hopkins’ affidavit of indigence.

Termination of Parent-child Relationship

In her first issue, Hopkins argues that the evidence was insufficient to support the trial court’s order finding that termination of the parent-child relationship between Hopkins and L.N.H. was justified under § 161.001(1)(E), (I), (O) and was in L.N.H.’s best interest.

Standard of Review

Section 161.001 of the Texas Family Code authorizes involuntary termination of a parent-child relationship if the court finds by clear and convincing evidence that the parent has committed at least one of the acts or omissions listed in subsection (1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2007). A trial court only needs to make one finding of parental misconduct under section 161.001(1) of the Family Code. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Supreme Court has set out some factors that courts can consider when determining the best interest of the child, including: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). This is not an exhaustive list, and a court need not have evidence on every element listed in order to make a valid finding as to the child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

Clear and convincing evidence is “the 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 allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because termination findings must be based upon clear and convincing evidence, the Texas Supreme Court has held that, in a legal sufficiency review, “a court should 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.F.C., 96 S.W.3d at 266. In viewing the evidence in the light most favorable to the finding, we assume that the finder of fact resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. Id.

In conducting a factual sufficiency review, we consider the entire record, including evidence both supporting and contradicting the finding in determining whether a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which the State bore the burden of proof. Cervantes-Peterson v. Texas Dep’t of Family and Protective Servs., 221 S.W.3d 244, 250 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266.

Analysis

We begin by noting that Hopkins did not challenge the trial court’s finding that she failed to comply with the provisions of the court-order service plan that specifically established the actions necessary for her to obtain the return of L.N.H. pursuant to section 161.001(1)(O) of the Texas Family Code. Because the trial court’s finding under section 161.001(1)(O), together with the trial court’s finding that termination was in L.N.H.’s best interest, is sufficient to support the termination, we do not address Hopkins’ arguments regarding the sufficiency of the trial court’s findings that she also violated sections 161.001(1)(E) and (I). See In re A.V., 113 S.W.3d at 362.

Regarding L.N.H.’s best interest, DFPS presented abundant evidence that Hopkins had not addressed the issues that caused DFPS to remove L.N.H. from her care and that L.N.H. would be better off in a more stable environment. DFPS presented Roberts’ testimony that Hopkins, her daughter, had been sober on and off for the past 20 years or more and that she did not believe Hopkins had truly changed. Hopkins’ own testimony demonstrated that she had not been able to maintain stable housing and that her monthly expenses would exceed her monthly income if she became responsible for paying the cost of L.N.H.’s childcare and other necessities. These facts demonstrated that Hopkins was not in a position to provide for the current or future needs of L.N.H., either physically or emotionally. See Holley, 544 S.W.2d at 371–72.

DFPS also presented evidence that Hopkins had not addressed the substance abuse and psychiatric issues that originally caused Hopkins to lose custody of L.N.H. Roberts’ testimony supported DFPS’s evidence showing Hopkins’ failure to participate in the court-ordered programs designed to help her with those issues. Hopkins’ own testimony failed to show that she recognized the true source of the problems because she stated that she had made bad choices, but she did not admit that she was under the influence of drugs and alcohol when she pushed L.N.H.’s stroller into a bush, in spite of her citation for public intoxication. Hopkins’ testimony also showed that she decided on her own to discontinue doctor-prescribed psychiatric medications and was not seeking further treatment. These facts show that Hopkins would pose physical and emotional danger to L.N.H., both now and in the future, that she could not provide the stability required by a preschool-aged child, and that she did not take advantage of the programs already available to help her. See Holley, 544 S.W.2d at 371–72. The evidence presented by DFPS was legally sufficient to allow the trial court to form a firm belief or conviction that termination was in L.N.H.’s best interest. See In re J.F.C., 96 S.W.3d at 266

The evidence was also factually sufficient. Hopkins testified that she visited L.N.H. every other weekend at Roberts’ home and that they spent quality time together doing household chores, cooking, playing, and watching cartoons. Hopkins also testified that she brought L.N.H. toys and clothing when she would come to visit. Hopkins also presented evidence that she had maintained a steady job, that she was attending AA and other substance abuse programs as required by her service plan, and that she had changed her lifestyle to include people, like her fellow church and AA members, who would support her.

There was, however, countervailing evidence that Hopkins had only made a partial effort to comply with the service plan and that Hopkins blamed DFPS case workers for her failure to comply. It is the province of the trial court to judge the credibility of the witnesses in this case. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (holding that fact finder is sole judge of credibility of witnesses and weight to be given their testimony). When viewed in light of the entire record, including evidence both supporting and contradicting the trial court’s findings, the evidence is factually sufficient to demonstrate that the trial court reasonably formed a firm conviction or belief about the truth of its findings. See Cervantes-Peterson, 221 S.W.3d at 250.

We overrule Hopkins’ first issue.

Affidavit of Indigence

In her second issue, Hopkins argues that the trial court abused its discretion in denying her affidavit of indigence.

Standard of Review

Texas Rule of Civil Procedure 20.1 provides that a party who cannot pay the costs of appeal may proceed without advanced payment if “(1) the party files an affidavit of indigence in compliance with [Rule 20.1]; (2) the claim of indigence is not contested or, if contested, the contest is not sustained by written order; and (3) the party timely files a notice of appeal.” Tex. R. App. P. 20.1. The affidavit must identify the party filing the affidavit, state what amount of costs the party can pay, contain complete information about the nature and amount of any income, contain information about the party’s spouse’s income and whether that is available, and contain complete information about real and personal property, cash, and other assets held by the party. Id. The affidavit must also identify the party’s dependents, debts, monthly expenses, and ability to obtain a loan for court costs, and it must state whether an attorney has agreed to provide free legal services and pay or advance court costs. Id.

To establish indigence, an appellant must show by a preponderance of the evidence that she would be unable to pay the costs of appeal if she “really wanted to and [made] a good faith effort [to] do so.” Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (en banc). We review the trial court’s decision for an abuse of discretion. Id. A court abuses its discretion when it acts without reference to any guiding rules or principles or its ruling is so arbitrary and unreasonable as to be clearly wrong. Id.

Analysis

Hopkins filed her affidavit on April 9, 2006, and the District Clerk filed a contest to the affidavit the next day. Hopkins testified at a hearing that her current monthly income was approximately $1,400, and that she could make more by working overtime. Her current monthly expenses include $403 for rent, $240 a month for food, $125 a month for clothing plus expenses for electricity, telephone, auto insurance, and gasoline, which take up her full monthly income. However, Hopkins’ affidavit stated that she could pay $300 immediately, and at the hearing she stated that she could make other payments on a bi-weekly basis totaling approximately $300 a month. She also testified that she could work more overtime or use the $125 budgeted for clothing to pay her court expenses if necessary.

Hopkins’ ability to pay $300 dollars toward court costs immediately and to make further payments on a bi-weekly basis is sufficient to show that she could pay the court costs if she really wanted to and made a good faith effort to do so. See Arevalo, 983 S.W.2d at 804. Therefore, the trial court did not abuse its discretion in denying Hopkins’s affidavit of indigence. See id.

We overrule Hopkins’s second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Taft, Keyes, and Alcala.

CPS loses appeal: Supreme Court denies review in case from Harris County, finding no error by Houston court of appeals

In its only opinion issued today, the Texas Supreme Court resolves issue regarding managing conservatorship of children in cases in which termination of the parent's rights was reversed on appeal and no independent grounds were proven to support appointment of CPS (DFPS) as managing conservator. The Court denies the Department's petitions for review on a finding that the First Court of Appeals' reversal of the appointment order, along with the termination, was proper. Colbert v. DFPS (Tex. App. - Houston [1st Dist.] Dec. 21. 2007, pet.). Several cases involving multiple children of the same mother were consolidated and decided in a single per curiam opinion. Justice Jennings had witten a separate opinion in the court of appeals.

In the Interest of D.N.C., a Child, No. 07-0621 (Tex. Feb 8, 2008) (CPS suits, termination of parental rights)
IN THE INTEREST OF D.N.C., A CHILD;
from Harris County; 1st district (01‑04‑01232‑CV, 227 S.W.3d 799, 12‑21‑06)

PER CURIAM

In these five cases, the Department of Family and Protective Services sought termination of Ericka Shanette Colbert’s parental rights to her seven children, T.J.C., T.D.C., D.N.C., T.L.J., T.B.J., E.D.C., and J.D.M. The trial court found that Colbert had endangered her children and terminated Colbert’s parental rights under section 161.001(1)(D) of the Family Code. Making no additional findings, the trial court appointed the Department of Family and Protective Services as the children’s managing conservator.

On appeal, Colbert challenged the sufficiency of the evidence to support the termination order, but she did not separately challenge appointment of the Department as the children’s managing conservator. The court of appeals reversed the termination order on factual insufficiency grounds, and also reversed the trial court’s conservatorship appointment. 227 S.W.3d 799, 816. The court reasoned that no findings had been made under Family Code section 153.131[1] that would independently support the conservatorship order, and thus the Department’s appointment was solely the consequence of the trial court’s termination decision under Family Code section 161.207[2] and had to be reversed as well. Id.

The Department here contends reversal of the conservatorship order was erroneous under our recent decision in In the Interest of J.A.J., ___ S.W.3d ___ (Tex. 2007). In J.A.J., however, the Department requested conservatorship pursuant to Family Code section 153.131 and the trial court made the specific findings that the statute requires: that appointment of a parent as J.A.J.’s managing conservator would not be in his best interest because it would significantly impair his physical health or emotional development, and that appointment of the Department was in J.A.J.’s best interest. Id. at ___. In light of these findings, we emphasized that the differing elements and standards of review applied to conservatorship and termination orders required separate challenges on appeal. Id. at ___. In this case, by comparison, the only available statutory mechanism for the Department’s appointment was as a consequence of the termination pursuant to section 161.207. See Tex. Fam. Code § 161.207. Accordingly, J.A.J. does not apply, and Colbert’s challenge to the conservatorship appointment was subsumed in her appeal of the parental-rights termination order.

The Department’s petition for reviews are denied.

Opinion Delivered: February 8, 2008

[1] Section 153.131 creates a presumption of managing conservatorship in favor of a parent or parents unless the court finds that such appointment “would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.” Tex. Fam. Code § 153.131(a). A finding of a history of family violence involving a child’s parents removes the presumption that appointment of the child’s parents is in the child’s best interest. Id. § 153.131(b).

[2] Section 161.207, entitled “Appointment of Managing Conservator on Termination,” provides that the court shall appoint a suitable managing conservator “[i]f the court terminates the parent-child relationship with respect to both parents or to the only living parent.” Tex. Fam. Code § 161.207(a).

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. (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.

Justice George C. Hanks Jr. reverses termination of parental rights

In Interest of A.A.A. - Alexander v. DFPS (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Hanks) Opinion by Justice Hanks (Before Justices Taft, Hanks and Higley)

Paul Alexander and Shde Hurst v. Department of Family and Protective Services--Appeal from 314th District Court of Harris County
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND RENDER JUDGMENT: Opinion by Justice HanksBefore Justices Taft, Hanks and Higley01-07-00160-CV Paul Alexander and Shde Hurst v. Department of Family and Protective ServicesAppeal from 314th District Court of Harris County (Hon. John Phillips)

In this accelerated appeal, Shde Aza Hurst challenges the trial court’s judgment terminating her parental rights to her minor child, A.A.A., and naming the Texas Department of Family and Protective Services (“DFPS”) as A.A.A.’s sole managing conservator. In five issues, Hurst argues that the evidence is legally and factually insufficient to support the trial court’s findings under Section 161.001. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006). In her sixth issue, Hurst asserts that, if we reverse the trial court’s termination of her parental rights, we should also reverse the trial court’s appointment of DFPS as sole managing conservator. We reverse the trial court’s termination of her parental rights and render judgment denying DFPS’s petition to terminate Hurst’s parental rights. We affirm the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator.
* * *
Because we hold that the evidence is legally insufficient to support the trial court’s findings under 161.001(1), we need not review the sufficiency of the trial court’s finding that termination is in A.A.A.’s best interest under 161.001(2). Therefore, we reverse the trial court’s termination of the parent-child relationship between Hurst and A.A.A. and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. See Tex. R. App. P. 43.2(c).

Sole Managing Conservator

Having reversed the termination of Hurst’s parental rights, we now turn to Hurst’s sixth issue, which asks whether the appointment of DFPS as sole managing conservator should also be reversed. Hurst first contends that, because the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator resulted from the trial court’s termination of Hurst and Alexander’s parental rights, the appointment must also be reversed.
We addressed this issue in Earvin v. Department of Family and Protective Services. 229 S.W.3d 345 (Tex.—Houston [1st Dist.] 2007, no pet.). In Earvin, we concluded that, because the trial court appointed DFPS as conservator after finding, independent of its termination of parental rights finding, that appointment of the parent would not be in the child’s best interest because it would significantly impair the child’s physical health or emotional development, appointment of DFPS was a separate issue that required independent analysis. Id. at 350–51. The Texas Supreme Court recently reaffirmed that a parent must bring an independent challenge on the issue of conservatorship in similar situations. See In re J.A.J., __ S.W.3d __, 2007 WL 3230169, at *1 (Tex. Nov. 2, 2007) (concluding that, where the trial court finds that appointment of the parent would significantly impair the child’s physical health or emotional development, and appointment of DFPS is in the child’s best interest, “reversal of a termination judgment . . . does not affect the trial court’s conservatorship appointment absent assigned error”).
Here, the trial court found that appointment of Hurst or Alexander would not be in A.A.A.’s best interest because such appointment would significantly impair A.A.A.’s physical health or emotional development. The trial court also found that appointment of DFPS as conservator was in A.A.A.’s best interest. Therefore, DFPS’s appointment as conservator is independent of the trial court’s termination of Hurst’s parental rights and requires independent analysis.
We begin by addressing whether we are precluded from reviewing Hurst’s sixth issue because she failed to follow the procedures for appellate review of a final order under Section 263.405 of the Family Code. Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2006). Subsection 263.405(b) requires an appellant to file, not later than the 15th day after the date a final termination order is signed, “a statement of the point or points on which the party intends to appeal.” Id. § 263.405(b). This statement of points may also be combined with a motion for new trial. Id. Under Subsection 263.405(i), “[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial. For purposes of this Subsection, a claim that a judicial decision is contrary to the evidence or that the evidence is factually or legally insufficient is not sufficiently specific to preserve an issue for appeal.” Id. § 263.405(i).
The record includes Hurst’s timely filed motion for new trial and statement of points, which indicates her intention to challenge the legal and factual sufficiency of the evidence in support of the trial court’s findings of 161.001(1)(E), (F), (N), (O), and (2). However, Hurst urged no point concerning the trial court’s appointment of DFPS as A.A.A.’s sole managing conservator. Therefore, because Hurst failed to specifically present this issue in her statement of points, we are precluded from considering it. See Pool v. Texas Dept. of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Accordingly, Hurst’s sixth issue is overruled.
Conclusion
We reverse and render judgment denying DFPS’s petition for termination of Hurst’s parental rights. We affirm the portion of the decree assigning DFPS as the sole managing conservator of A.A.A.

George C. Hanks, Jr.
Justice

Panel consists of Justices Taft, Hanks, and Higley.

Parent's rights terminated on Anders brief

Justice Elsa Alcala agrees with appointed counsel that appeal is frivolous, grants withdrawal motion, and affirms termination of jailbird father's parental rights.

Smith v. DFPS , No. (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(Alcala)(termination, Anders appeal)
Shuemon Manuel Smith v. Department of Family and Protective Services
Appeal from 315th District Court of Harris County
Disposition: Trial court's judgment affirmed

MEMORANDUM OPINION

Appellant, Shuemon Manuel Smith, appeals the trial court’s order terminating parental rights to his child, A.S.

The order also terminated the rights of Nancy Ralstin, the child’s mother, who does notappeal. The order did not terminate appellant’s rights to his other child, S.S., but named himjoint possessory conservator of the child along with Nancy Ralstin. The order named Amanda Hill, a relative of the child who had been caring for the child since August 2004,sole managing conservator. According to testimony of the Texas Department of Family andProtective Services (DFPS) caseworker, the agency did not seek termination of appellant’sparental rights of S.S. because Hill sought only to be named sole managing conservator anddid not want to adopt S.S.

Appellant’s court-appointed appellate counsel filed a brief concluding that there is no non-frivolous issue that could be presented on appeal and that any appeal would be without merit. Appellant’s appellate counsel’s brief includes a motion to withdraw, stating that he mailed a copy of the brief to appellant, along with a letter advising him of his right to file a pro se brief. We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.


Background


Appellant is the father of two children, A.S. and S.S. In June 2002, pursuant to an emergency order, the Texas Department of Family and Protective Services (DFPS) took possession of A.S., who was four years old, and S.S., who was six years old. After a full adversary hearing, the trial judge signed a temporary order naming DFPS temporary managing conservator of the children and requiring supervised contact between appellant and the children. A.S. was placed in foster care with a foster family beginning April 17, 2003.

At the time of the emergency order and subsequent hearing, appellant was incarcerated in Michigan where he was serving a five-year sentence for a 1997 conviction for breaking and entering after violating the terms of his parole in 1998.

In 1996, appellant was convicted of home invasion and received two years probation. Thatsame year, he was also convicted of domestic violence. In 1997, appellant was convicted ofbreaking and entering, for which he received a sentence of two to ten years in prison. Heserved roughly one year of the sentence and was released on parole on December 9, 1997. In 1998, appellant was charged with domestic violence after a fight with Nancy Ralstin,A.S.’s mother. He went back to prison for violating his parole from the breaking andentering conviction, where he served approximately five years in prison.

Appellant was released from prison on September 26, 2002.

When appellant learned that the children were in the custody of DFPS, he contacted DFPS to inquire about reunification with the children. In March 2003, DFPS and the caseworker assigned to the case created a Family Service Plan for appellant so that he could work towards reunification with the children. The plan required that appellant attend parenting classes, secure appropriate employment, maintain proper housing, undergo psychological evaluation, and not engage in criminal activity. Appellant did not complete the terms of the plan. Appellant explained he did not complete the service plan because he believed the children would be reunited with their mother, Nancy Ralstin.

After his release from prison, he attempted to contact both children through letters. Appellant stated that he sent one letter with photos enclosed to the DFPS caseworker for A.S. He also testified that he spoke with the DFPS caseworker “numerous” times to ask about the children. However, according to the DFPS caseworker, she initiated all the calls to appellant.
In 2003, DFPS performed a home study on appellant’s sister to determine whether the children could be placed in her care. The home study was approved, but appellant’s sister stated that she wanted the placement only if it was permanent. DFPS decided to pursue reunification with Ralstin, the children’s mother, instead. The attempted reunification did not materialize. DFPS then considered placing the children with appellant’s sister, but she was unable to care for the children due to her return to school. In May 2004, DFPS began a home study on appellant’s mother, the children’s grandmother, which failed because she admitted to using marijuana.
On November 1, 2004, DFPS filed a motion seeking to terminate the parental rights of appellant with regard to A.S. On March 16, 2005, appellant returned to prison for a parole violation because he was in a car with a person who had a concealed weapon. After returning to jail, appellant did not contact DFPS, nor did he have any relatives contact the DFPS caseworker about his children. In May 2005, the DFPS caseworker contacted appellant about voluntarily relinquishing his parental rights, but appellant did not want to sign the papers. Appellant did not provide the DFPS caseworker with the contact information of anyone who could care for the children while he was in prison.

Appellant claimed that while he was in prison, he could communicate with the children by sending letters, calling, and sending money. He also stated that either his fiancée or his father would be able to take care of the kids, but he admitted that he had never given their names or contact information to the DFPS caseworker.

Appellant said that he was taking welding classes and parenting classes while in prison. Although he was set to be released from prison on December 4, 2006, upon his release, appellant was required to serve a 20-month federal sentence on a charge of felon in possession of a firearm. After the completion of his federal sentence, appellant will be on supervised release. During that time, appellant will not be able to leave the state of Michigan to visit his children in Texas.
At trial, the DFPS caseworker testified that she believed appellant’s rights should be terminated and that at no time had A.S. ever talked about his father. She stated that appellant had not been involved in the child’s life and had not provided any financial help to the child. The foster mother of A.S. also testified, stating that the child wanted to be adopted by her family, that the child did not know who his biological father was, and that the child had blossomed while in her family’s home environment.

In its final order, the trial court found three grounds on which to terminate appellant’s parental rights. The court found that appellant had engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well being of the child, pursuant to § 161.001(1)(E) of the Texas Family Code;

constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency has made reasonable efforts to return the child to the father; (2) the father has not regularly visited or maintained significant contact with the child; and (3) the father has demonstrated an inability to provide the child with a safe environment, pursuant to § 161.001(1)(N) of the Texas Family Code; [and]

knowingly engaged in criminal conduct that has resulted in the father’s conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition, pursuant to § 161.001(1)(Q) of the Texas Family Code.
Appellant filed a motion for new trial combined with a statement of appellate points under section 263.405(b) of the Texas Family Code, and a notice of appeal in the trial court. See Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2007). Appellant’s court-appointed appellate counsel submitted an Anders brief and motion to withdraw as counsel. Appellant did not file a pro se response.

Anders Procedure

Anders procedures are appropriate in parental-rights termination cases. In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also In re D.E.S., 135 S .W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

When this Court receives an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967) (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (same).

Our role in this Anders appeal is limited to determining whether arguable grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. See id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id.

“Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id. If we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826–28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for review filed in the Texas Supreme Court. Cf. id. at 827 & n.6.

The brief submitted by appellant’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant’s counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. DFPS waived its opportunity to file an appellee’s brief. In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826–28, we have reviewed the record and appellant’s appointed counsel’s Anders brief and conclude that no reversible error exists.

Conclusion

We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.

Elsa Alcala
Justice

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