INTEREST OF P.R.

No. 06-20-00022-CV.

615 S.W.3d 474 (2020)

In the INTEREST OF P.R., A.R., and G.T., Children.

Court of Appeals of Texas, Texarkana.

Date Decided: December 18, 2020.


Attorney(s) appearing for the Case

Courtney Harris , Harris & Harris, Attorneys at Law, Longview, for Appellant.

Eric T. Tai , Office of General Counsel, TDFPS, Austin, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.


OPINION

The Department of Family and Protective Services (the Department) filed this action in the 307th Judicial District Court of Gregg County, Texas, seeking to terminate Mother's1 parental rights to two children, P.R. and A.R., with Father and one child, G.T., with another man we refer to as Dad, if the trial court determined that reunification could not be achieved. Prior to the final hearing, both Father and Dad filed voluntary affidavits of relinquishment. Neither Father, nor Dad, nor their counsel appeared at the final hearing. After a very brief hearing, the trial court—sitting non-jury —found that sufficient grounds existed to terminate Father's and Dad's parental rights, that termination of Dad's parental rights was in G.T.'s best interest, but that termination of Father's parental rights to P.R. and A.R. was not in the children's best interests. Based on its findings, the trial court appointed Mother sole managing conservator of all three children, terminated Dad's parental rights to G.T., but denied the Department's petition to terminate Father's parental rights. Instead, the trial court named Father as possessory conservator of P.R. and A.R., awarded visitation to Father, and ordered him to pay child support beginning ninety days after he is released from jail.

Although he was the prevailing party in the trial court, Father appealed the trial court's judgment complaining that the trial court erroneously denied the Department's petition to terminate his parental rights to P.R. and A.R. He specifically contends that: (1) his Due Process rights were violated because neither he nor his counsel were present for the final hearing; (2) the evidence supporting the trial court's order denying termination of his parental rights is legally insufficient, and (3) the evidence supporting the trial court's order denying termination of his parental rights is factually insufficient. The Department did not appeal the trial court's ruling. Rather, it merely concurred in Father's argument that the trial court erred in failing to find that termination was in the children's best interests. Because we find that Father lacks standing to challenge the trial court's judgment, we do not reach Father's points of error, but instead dismiss his appeal for want of jurisdiction.

I. Factual and Procedural Background

Mother and Father had two children together, P.R. and A.R. Mother also had a third child, G.T., by another man, Dad. At the time this case began, A.R., P.R., and G.T. were two, seven, and eight years old, respectively. The Department initially contacted Mother in July 2018, after receiving a report that Father was endangering the children through domestic violence and drug use. After Mother left the home she shared with Father and moved herself and the children in with her parents, Mother told the Department representative, Candy Everitt, that she and Father had a history of domestic violence and that Father used and sold drugs out of the home. In the following weeks, Mother twice tested positive for marihuana, Father tested positive for cocaine, and A.R. tested positive for cocaine and methamphetamine. After removing the children from Mother's care, the Department, on October 12, 2018, filed its original petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship.

On October 22, 2018, the trial court entered agreed temporary orders. Mother and Father were ordered to complete various services. A status report submitted to the court during an April hearing indicated that Father was employed, that he had completed some of his court-ordered services, that he visited the children regularly, and that his drug tests were negative. After the hearing, Mother and Father were arrested on charges relating to the child endangerment from October, and after entering guilty pleas, it appears that both were given ten-year sentences, probated to five years. The children were placed with a relative.

By December 2019, both Father and Mother were employed, had obtained separate housing, and remained drug-free. The trial court found that Mother had "demonstrated adequate and appropriate compliance with the service plan" but that Father, having not yet completed his counseling, had not done so. Both parents were receiving unsupervised visitation with the children. In late December, the trial court ordered a monitored return of the children, with Mother designating the children's primary residence and Father receiving scheduled visitation.

On February 21, 2020, Father executed an irrevocable affidavit of voluntary relinquishment of his parental rights. In the affidavit, Father stated that he knew and understood his parental rights, that termination of his parental rights was "in the best interest of the child[ren]," that he was relinquishing his parental rights to the Department or to the adoptive parents, and that even if he changed his mind "at any time," the affidavit was irrevocable. The affidavit also included the following provisions:

I fully understand that a lawsuit has been ... filed ... to terminate forever the parent-child relationship between me and the above-named child[ren] I understand that either way, once the court terminates my parental rights, I will have no further say concerning the child[ren].... I understand that the Texas Rules of Civil Procedure require, in most instances, that a respondent be served with citation. I do not want to be served with citation, and I waive the issuance and service of citation and enter my appearance in said cause with full knowledge that the case will be taken up and orders entered terminating my parental rights to the above named child without further notice to me. I do not want to be informed further about the lawsuit, and I waive and give up my right to be given notice about anything going on in the lawsuit. I specifically agree that a final hearing in the lawsuit may be held at any time without further notice to me. I waive my right to have the official court reporter make a record of the testimony in the lawsuit.... Furthermore, I do not want to be mailed or given a copy of the judgment terminating my parental rights and do not want to be notified of the signing, rendition or entry of that judgment. Therefore, I waive and give up my right to insist that those things be done. .... .... The court has appointed attorney, NATALIE ANDERSON, to represent me in this case. .... I fully understand that this affidavit, once signed, is irrevocable, and I will not be further informed of any hearings or proceedings affecting the child named in this affidavit, including any termination suit.

Dad had filed a similar relinquishment regarding his rights to G.T. earlier in the case.

On March 4, 2020, a final hearing commenced on the Department's petition to terminate. The Department appeared through Caseworker Lahoma Lewis and through counsel, Mother appeared in person and through counsel, the children's appointed ad litem attorney appeared, and Hanna Williams appeared as the East Texas Court-Appointed Special Advocate (CASA) volunteer. The final order notes that neither Father nor Dad appeared as they had "waived issuance and service of citation contained in an Affidavit of Voluntary Relinquishment of Parental Rights filed in this cause."

At the outset of the hearing, the Department offered, and the trial court admitted, the affidavits of relinquishment from Father and Dad. Only three witnesses testified during the very brief hearing. The Department called Lewis, who testified that Mother had done "extremely well" during the case, having completed all court-ordered services and counseling while maintaining her sobriety. It was Lewis's opinion that Mother could provide the stability the children needed and that she should be named their sole managing conservator. Lewis testified that she would like the court to act on Father's relinquishment, stating,

[I]t is [Mother's] wish, although I know personally that [P.R.] is not going to be happy to hear that his [Father] is signing his rights over, the children are going to be devastated to learn that. But at this point I know [Father] is facing some jail time, and he's afraid that he may get some prison time, so I believe that is his reasoning for signing the relinquishment.

However, she did not believe that termination was in the children's best interest "[b]ecause the children do have that relationship with [Father], and [P.R.] is really attached to his [Father] and it would devastate him." On further questioning, Lewis admitted that Father was unable to "provide any type of stable home or housing or stability" for the children, that, given his "criminal activity"2 and pending "criminal case," it was possible he would be "in and out of jail these children's whole life," and that, because such instability was not good for the children, it was in the children's best interests for the court to accept Father's relinquishment and terminate Father's rights regardless of the children's "devastation with not having contact with their father." By contrast, Lewis testified that it was in the child's best interests that Dad's parental rights to G.T. be terminated and his affidavit accepted because he "made it clear that he did not want to have a relationship with G.T." For example, when G.T. was placed with him after the children were removed from Mother and Father, he "chose to have her removed from his home, and ... he asked that he not have a relationship with her."

On cross-examination by the children's attorney ad litem, Lewis testified that Father and Dad were "no longer interested" in being fathers to their children even though they had "the duty and the obligation to provide for those children." On cross-examination by Mother's counsel, Lewis admitted that, if the court accepted the relinquishments, Father and Dad would be "avoiding their responsibility ... to support these children." Williams, the children's CASA volunteer, also testified that reunification of the children with Mother was in the children's best interests. Like Lewis, she was concerned about the case because P.R. was "very attached to his father," but she testified that it was in the children's best interests for the court to accept the relinquishments because, even though termination would "hurt, ... it would hurt less than having a father that doesn't want them and [is] not around."

Even though Mother was still married to Father, Mother testified that she did not believe that the court should accept Father's affidavit and terminate his parental rights. She testified that P.R. was very attached to Father, that P.R. did not know that Father had executed a relinquishment, and that finding out would devastate the child. She acknowledged that Father had not been a consistent part of the children's lives since she and Father separated early in the case, but stated that he did visit the children while they were placed with one of his relatives. However, Mother testified that, once Father got out of jail, she believed that he would continue to contact her and attempt to see the children even if the trial court accepted Father's relinquishment and terminated his parental rights.

Mother testified that Father had not provided any child support since they separated, and she did not believe that that would change in the future. Mother believed that Father's relinquishment was "motivated purely by the desire to avoid child support," but she stated that she "could be wrong." She was prepared to and capable of caring for Father's two children herself, but she admitted that it would help to have the extra money from child support. Mother also testified that she believed that Dad's current wife influenced him to sign the relinquishment to G.T., but that child support from him would also help her to raise and care for the children. She believed that termination of the two fathers' parental rights was not in the children's best interests, and she requested that she be allowed to supervise the two fathers' visitations. However, on cross-examination, she admitted that it was not in G.T.'s best interest to have a relationship with a father that did not want her.

In closing, the Department requested that the court name Mother sole managing conservator and terminate the parental rights of Father and Dad. The trial court named Mother as managing conservator, terminated Dad's parental rights to G.T. based upon the relinquishment, and found termination to be in the child's best interests. However, the trial court denied the Department's request to terminate Father's parental rights, instead naming Mother sole managing conservator and Father as possessory conservator of A.R. and P.R., outlining a visitation schedule and ordering Father to pay a minimum-wage-earner's level of child support to begin the ninetieth day after his release from incarceration.

II. Father Does Not Have Standing to Challenge the Trial Court's Judgment

In his first point of error, Father argues that he was denied due process when the trial court conducted the final hearing without either his presence or that of his court-appointed attorney. In his second and third points of error, Father challenges the legal and factual sufficiency of the evidence supporting the trial court's denial of the Department's petition for termination of Father's parental rights. However, before we can address these points, we must first resolve the question of whether Father has standing to challenge the trial court's judgment in this case. For the reasons stated below, we find that he does not.

A. Standard of Review

Standing is a component of subject-matter jurisdiction that cannot be waived. Anderson v. New Property Owners' Ass'n of Newport, Inc., 122 S.W.3d 378, 384 (Tex. App.-Texarkana 2003, pet. denied). Even when the parties do not raise the issue of standing, an appellate court may raise the issue on its own. Id. at 383-84. "Standing is generally a question of law determined from the pleadings." Webb v. Voga, 316 S.W.3d 809, 812 (Tex. App.-Dallas 2010, no pet.) (citing West v. Brenntag Sw., Inc., 168 S.W.3d 327, 334 (Tex. App.-Texarkana 2005, pet. denied)). Standing to bring suit "deals with whether a litigant is the proper person to bring a lawsuit." Id. In this case, however, Father did not initiate this suit. Therefore, the question before us is not whether he had standing to file suit in the trial court, but whether he has standing to appeal the trial court's judgment to this Court.

On the one hand, Rule 25.1(c) of the Texas Rules of Appellate Procedure states that, in order to perfect an appeal, "[a] party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal." TEX. R. APP. P. 25.1(c). This Rule implies that any party— including the prevailing party—who "seek[s] to alter the trial court's judgment or appealable order" may appeal that judgment or order. Id. In this case, Father clearly "seek[s] to alter the trial court's judgment." Id. Accordingly, under a strict reading of Rule 25.1(c), Father has the right to appeal that judgment.

Yet, simply because a party has a right to appeal does not mean that he has standing to appeal. In Nephrology Leaders and Associates v. American Renal Associates, LLC, the Houston First District Court of Appeals noted that "statutes granting appellate jurisdiction do not supplant the Texas Constitution's standing requirement for subject-matter jurisdiction." Nephrology Leaders & Assocs. v. Am. Renal Assocs., LLC, 573 S.W.3d 912, 915 (Tex. App.-Houston [1st Dist.] 2019, no pet.) (citing McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 231 (Tex. 2001)). In that case, Nephrology subpoenaed records from a non-party, American Renal, in its litigation against McGuireWoods, LLP. Id. at 913. American Renal obtained a protective order and an order temporarily sealing the subpoenaed records under Rule 76a of the Texas Rules of Civil Procedure. Id. at 914. Nephrology appealed the sealing order under Rule 76a(8), which provides that "[a]ny order (or portion of an order or judgment) relating to sealing or unsealing court records shall be deemed to be severed from the case and a final judgment which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order." Id. at 915 (citing TEX. R. CIV. P. 76a(8)).

Despite the fact that Nephrology did not claim it was injured by the sealing order, it argued that it had "`statutory standing' to appeal ... under ... Rule ... 76a(8)." Id. at 914-15. The court of appeals noted that, "while Rule 76a(8) authorizes `any party or intervenor who participated in the hearing' to appeal the sealing order, it does not go so far as to confer constitutional standing upon such party or intervenor" but instead interpreted "the right of appeal granted by Rule 76a(8) `to extend no farther than what the Texas Constitution allows—to presume or incorporate the jurisdictional requirement' of standing to appeal." Id. at 915 (citing Tex. Quarter Horse Ass'n v. Am. Legion Dep't of Tex., 496 S.W.3d 175, 185 (Tex. App.-Austin 2016, no pet.)). It further noted that this interpretation was required because, while a right of appeal may be granted by statute, standing is mandated by "the Texas Constitution's open courts provision, `which contemplates access to the courts only for those litigants suffering an injury.'" Id. at 917 (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)). Thus, even where an appellant has a right to appeal, he must also demonstrate that he has standing to do so.

The Texas Supreme Court has held that whether a party has standing to appeal a trial court's judgment turns on whether the appellant was injuriously affected by that judgment. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000) (holding that "an appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others"); see also In re D.W.G.K., 558 S.W.3d 671, 676 (Tex. App.-Texarkana 2018, pet. denied) (holding that a father in a parental rights termination case brought by the Department did not have standing to contend that his child "received ineffective assistance of counsel because his attorney ad litem did not represent [the child's] `expressed objectives of representation'"). Accordingly, Father does not have standing to appeal unless he was injuriously affected by that judgment. For the reasons stated below, we find that he was not.

B. Analysis

In a sense, adjudication of parental rights yields the same result as a denial of the Department's petition to terminate parental rights. In both instances, the final judgment leaves the parent with the rights and duties of a parent. And, just as in a parental-rights termination case, a father may appeal an adjudication of parental rights. See TEX. FAM. CODE ANN. § 160.637(e) ("A party to an adjudication of paternity may challenge the adjudication only under the laws of this state relating to appeal, the vacating of judgments, or other judicial review."). Yet, just as in any case, a parent who appeals an adjudication of parentage must also demonstrate standing to appeal. By examining the reason why a father has standing to appeal a judgment adjudicating parentage, we can see why he does not have standing to appeal the denial of a petition to terminate the parent-child relationship.

Prior to an adjudication of parentage, a putative father is a legal stranger to the child, but once he is adjudicated to be the child's father, he is "invested with all of the parental rights recognized by the Family Code" as well as all of the duties that Texas law imposes on parents. In re J.W.T., 872 S.W.2d 189, 191 (Tex. 1994). Obviously, parental rights and duties are two sides of the same coin: a parent cannot have one without the other. Nevertheless, unlike parental duties, parental rights "have been deemed `essential,' `basic civil rights of man,' and `(r)ights far more precious... than property rights," Stanley v. Illinois, 405 U.S. 645, 652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (citations omitted), and which give rise to "perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme Court]." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Consequently, logic dictates that a parent only has standing to appeal a parental-rights adjudication based on the imposition of parental duties, not because of the investment of parental rights. Cf. In re J.A., 225 S.W.3d 7, 9 (Tex. App.-El Paso 2005, pet. denied) (holding that an alleged father had no standing to appeal the child's writ of error proceeding disestablishing the parent-child relationship between the child and her mother's husband—even though a petition to adjudicate the alleged father was pending in the trial court—because "the judicial relief obtained thus far ha[d] imposed no obligation upon [the alleged father]"). To conclude otherwise, i.e., hold that a parent has standing to appeal based on the investment of parental rights, one would have to reach the absurd conclusion that a parent is injuriously affected by the investment of rights which "have been deemed,' `the basic civil rights of man' and `(r)ights far more precious ... than property rights," Stanley, 405 U.S. at 652, 92 S.Ct. 1208, and which give rise to "perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme Court]." Troxel, 530 U.S. at 65, 120 S.Ct. 2054.

In the same way that an investment of parental rights does not injuriously affect the parent, a refusal to terminate those rights likewise does not injuriously affect the parent; to hold otherwise would lead to the same absurd conclusion noted above. Therefore, just as in an adjudication proceeding, a parent must rely on the imposition of parental duties to have standing to appeal the denial of the Department's request to terminate parental rights.3 Yet, unlike an adjudication of parentage, a denial of termination does not impose any parental duties. Rather, the denial of termination merely leaves the parent with the duties he had before the termination proceeding was instituted. Stated another way, a denial of the Department's petition to terminate the parent-child relationship does not alter the status quo ante. Accordingly, because a judgment denying the Department's petition to terminate a parent's parental rights does not change the parent's position, a parent is not injuriously affected by the continuation of his parental duties resulting from the denial of the Department's petition to terminate his parental rights.4

Because the trial court in this case denied the Department's petition to terminate Father's parental rights, Father was not injuriously affected by that judgment. See Torrington Co., 46 S.W.3d at 843. And, although the Department would have had standing to appeal the trial court's judgment, Father cannot raise the Department's complaint on appeal. See D.W.G.K., 558 S.W.3d at 676.5 Consequently, Father does not have standing to appeal the trial court's judgment denying the Department's petition for termination.6

III. Conclusion

Because Father does not have standing to appeal the trial court's judgment, we dismiss Father's appeal.

FootNotes


1. To protect the confidentiality of the children involved, this Court will refer to all involved parties by fictitious names and the children by their initials. See TEX. R. APP. P. 9.8(b)(C)(2).
2. Father has the following criminal history:
  April 27, 2005        Unlawful carrying weapon prohibited place, juvenile — Dismissed
  June 5, 2005          Injury to child/elderly/disabled/reckless BI/mental — Juvenile
  November 16, 2005     Assault causes bodily injury — Juvenile
  December 30, 2007     Evading arrest — Dismissed
                        Theft of firearm
  January 18, 2009      Prohibited weapons, switch blades, knuckles — Dismissed
                        Assault causes bodily injury
  May 19, 2009          Assault causes bodily injury
                        Stalking
                        Unlawful restraint
3. We only address standing based on the facts in this case, namely, in a case where the Department petitioned the court to terminate the parent-child relationship and the trial court denied the Department's petition. We express no opinion regarding standing where a parent institutes suit to terminate his own parental rights under Section 161.005 of the Family Code. TEX. FAM. CODE ANN. § 161.005.
4. It is conceivable that a judgment denying the Department's petition to terminate parental rights could injuriously affect a parent if it expanded a parent's parental duties (for example, the judgment denies termination but increases the amount of child support) or restricted a parent's parental rights (for example, the judgment denies termination but limits the parent to supervised visitation). Nevertheless, as noted above, Father does not complain that his parental duties were increased or that his parental rights were restricted but that his parental rights were not terminated and that his parental rights were not extinguished. Therefore, we do not reach the question whether a parent would have standing in these other scenarios.
5. Thus, to the extent Father's appeal could be interpreted as attempting to seek P.R.'s and A.R.'s best interests, only the Department or the children's ad litems had standing to do so. See D.W.G.K., 558 S.W.3d at 676.
6. To the extent Father had an expectation that his parental rights would be terminated in light of his affidavit of relinquishment, it does not follow that he was injuriously affected by the mere loss of that expectation. For example, a criminal defendant who enters a plea of guilty stipulates to the State's evidence, waives his constitutional rights, and agrees to the State's recommendation that he be sentenced to serve a term in prison may have an expectation that he will be convicted and sentenced to prison, but if the trial court were to acquit him instead, it could hardly be said that the loss of his expectation injuriously affected him. As noted above, the maintenance of parental rights resulting from the denial of the Department's petition to terminate those rights is not harmful, and it does not impose any parental duties. Therefore, the mere loss of any expectation by Father that his relationship to P.R. and A.R. would be terminated because of his affidavit of relinquishment did not injuriously affect him.

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