In the Interest of D.T., et al., Children--Appeal from 150th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-02-00926-CV
IN THE INTEREST OF D.T., T.J.T., A.T., and B.G.B., Children
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-PA-01925
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 20, 2003

AFFIRMED

Shelica Brown appeals the trial court's judgment terminating the parent-child relationship between her and her four children. We affirm.

Background

The Texas Department of Protective and Regulatory Services filed a petition seeking to terminate the parent-child relationship between Shelica Brown and her four children, D.T., T.J.T., A.T., and B.G.B. Brown did not appear at the ensuing bench trial because she could not find transportation to the courthouse. The trial court denied Brown's attorney's request for a continuance and conducted a trial on the merits. After the trial court signed a judgment terminating the parent-child relationship between Brown and her children, Brown filed a motion for new trial alleging her failure to appear at trial was not intentional. Brown also filed a statement of appellate points, contending that the evidence is legally and factually insufficient to support the trial court's finding that termination of the parent-child relationship was in her children's best interest. The trial court denied Brown's motion for new trial and ruled that her appellate points were frivolous.

Discussion

In two issues, Brown complains that: (1) the trial court abused its discretion by denying her motion for new trial; and (2) her appellate points are meritorious because the evidence is legally and factually insufficient to support the trial court's finding that termination of the parent-child relationship was in her children's best interest.

Motion For New Trial

In her first issue, Brown argues the trial court abused its discretion by denying her motion for new trial because she met the requirements of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939), in which the supreme court held that a trial court abuses its discretion in denying a motion for new trial seeking to set aside a default judgment if the movant establishes: (1) the failure to answer "was not intentional or the result of conscious indifference ..., but was due to a mistake or an accident"; (2) a meritorious defense; and (3) the motion for new trial "is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff." Craddock, 133 S.W.2d at 126. This court, however, has recently held that a parent who does not appear at trial may not avail herself of the procedure set forth in Craddock when the parent is represented at the trial. See In re K.C., 88 S.W.3d 277, 279 (Tex. App.--San Antonio 2002, pet. denied).

In In re K.C., the Texas Department of Protective and Regulatory Services sought to terminate a mother's parent-child relationship between her and her four children. Id. at 278. The mother did not appear at the termination proceeding, but her attorney did. Id. at 279. The trial court conducted a trial on the merits and terminated the parent-child relationship. Id. at 278. This court determined that because the mother was represented at the trial, "there was no default and no basis for applying Craddock." Id. at 279. Because the mother was not entitled to avail herself of the procedure set forth in Craddock, we held that the trial court did not abuse its discretion in denying her motion for new trial. Id.

Here, as in In re K.C., the party's attorney, but not the party appeared at trial. As in In re K.C., the trial court conducted a trial on the merits despite the party's absence. Consequently, as in In re K.C., there was no default and no basis for applying Craddock. We thus hold that the trial court did not abuse its discretion in denying Brown's motion for new trial. Brown's first issue is overruled.

Frivolous Appellate Points

In her second issue, Brown argues that her appellate points are meritorious because the evidence is legally and factually insufficient to support the trial court's finding that termination of the parent-child relationship was in her children's best interest. Under Family Code section 263.405, a trial court may determine an appeal from an order terminating the parent-child relationship is frivolous as provided by Texas Civil Practice and Remedies Code section 13.003(b). Tex. Fam. Code Ann. 263.405(d)(3) (Vernon 2002). In determining whether an appeal is frivolous, a court "may consider whether appellant has presented a substantial question for appellate review." Tex. Civ. Prac. & Rem. Code Ann. 13.003(b) (Vernon 2002). An appeal is frivolous when it lacks an arguable basis either in law or in fact. De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.--San Antonio 1998, no pet.). A trial court's determination under section 13.003(b) is reviewed under an abuse of discretion standard. Id.

The supreme court has recognized several factors which may be considered in determining when termination is in the child's best interest. Holley v. Adams, 544 S.W.2d 367, 371-372 (Tex. 1976). These factors include: (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 individuals 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 which 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. Id. Importantly, "the court need not consider all of the listed factors and may consider additional factors as well." Phillips v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 348, 356 (Tex. App.--Austin 2000, no pet.).

Through each of its witnesses, TDPRS presented evidence suggesting that termination was in Brown's children's best interest. Gretchen Hokenson, a caseworker for Child Protective Services, testified that she was assigned to this case in February of 2001. Hokenson was assigned the case because there was a complaint made against Brown regarding the negligent supervision of her children. She testified she established a service plan to assist Brown and her children. This service plan essentially provided Brown and her children the following services and benefits: homemaker services, which provided Brown parenting and homemaker skills; in-home counseling; a referral to Early Childhood Intervention, a program designed to assist developmentally challenged children; a referral to Path Finders, a program designed to help parents receive job training and/or find a job; food stamps; food; diapers; a deposit for an apartment; beds; and assistance with obtaining Section 8 housing. Although Brown participated in the homemakers service, Brown neither enrolled her children in the early childhood intervention program nor attempted to find a job or obtain training through Path Finders.

Hokenson further testified Brown agreed under her service plan to deny Juan Reyes, the father to T.J.T., A.T., and B.G.B., access to the children. According to Hokenson, Reyes abused the children by biting them on their arms and committed acts of violence against Brown. Hokenson testified she attempted to help Brown obtain a protective order against Reyes, but Brown failed to follow through on getting such an order. Hokenson further stated that Brown, despite her service plan agreement, continued to permit Reyes to live with and have access to her children. She indicated that this concerned her and that she believed that Brown did not protect her children from Reyes.

Hokenson testified that sometime after Brown moved into her Section 8 housing, Brown lost her electric service. Moreover, Brown would spend all her family's money at the beginning of the month, leaving the family nothing for the end of the month. When Brown's children were removed from her home, the only food items caseworkers found in Brown's home were rice and beans.

Hokenson also testified that Brown would threaten to physically discipline the children, yell and scream at them, and was very short with them. She indicated that there were reports Brown had threatened to kill the children and put them in a bag. There were reports of marijuana use in Brown's home and reports that Brown had allowed the children outside her home without any clothing. Hokenson further testified that she believed Brown's conduct caused and/or could have caused her children physical and emotional harm if the circumstances remained as they were.

Cynthia Harris, a caseworker for Child Protective Services, testified she was assigned to monitor the progress of Brown and her children after the children's removal. Harris testified that Brown did not fully participate in the training and classes that were offered to her. Harris testified Brown attended six parenting classes. The classes were offered weekly, but Brown attended only one class per month. According to Harris, Brown failed to attend any of the intensive parenting classes offered to her. Harris indicated Brown attended only one of the two empowerment classes offered to her. Moreover, Brown came to only 13 of the 26 parent-child visits Harris scheduled for Brown.

Harris testified D.T., T.J.T., and A.T. all have special needs. They attend individual counseling once a week to address their behaviors. D.T., T.J.T., and A.T. do not redirect well, have a hard time paying attention in school, and are aggressive with each other and their foster parents. The children also act out sexually. According to Harris, Brown needed specialized parenting classes because she did not have appropriate parenting skills. Harris also stated that Brown failed to attend individual counseling sessions designed to help her deal with the issues related to her children and the abuse she was suffering. Harris believed Brown did not demonstrate an ability to effectively parent her children.

As part of Brown's service plan, she was to insure that her home was free of activities and people that may pose a risk to the well being and safety of her and her children. Harris indicated that she does not believe Brown has demonstrated an ability to provide a safe environment for her children. Brown has repeatedly permitted Reyes into her home despite the fact that he engages in criminal activity and has been accused of sexually abusing D.T., T.J.T., and A.T. Harris believes Brown has done nothing to protect the children from Reyes, declining to obtain a Protective Order against Reyes on three different occasions.

Harris testified Brown never maintained a job during the time period she monitored the case. Harris referred Brown to someone for job training, but Brown never followed through on the referral.

Melissa Rodriguez, the current Child Protective Services caseworker assigned to this case, testified she does not believe Brown has stable housing or employment. According to Rodriguez, Brown's current whereabouts is unknown. When Rodriguez stopped to visit Brown at the hotel she was purported to be residing at, Rodriguez learned Brown was no longer living at the hotel. Rodriguez further testified that Brown attended one of the two parent-child visits she scheduled for Brown and her children.

Lastly, Reyes testified he is currently incarcerated and is set to be released on probation. According to Reyes, he has committed acts of domestic violence against Brown and his children. He further testified Brown visited him three times while he was in prison.

After reviewing the record, we believe there was ample evidence before the trial court to support a finding that termination of Brown's parental rights was in the best interest of her children. Because we believe such evidence is sufficient -- both legally and factually -- to support the trial court's finding, we cannot say the trial court abused its discretion in concluding Brown's appellate points were frivolous. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). Brown's second issue is overruled.

Conclusion

Having overruled all of Brown's appellate issues, the order of the trial court is affirmed.

Catherine Stone, Justice

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