IN THE INTEREST OF G.C.T., T.L.T., A/K/A T.L.T., T.S.W.T., AND M.L.C.T., A/K/A G.T.--Appeal from 313th District Court of Harris County

    NUMBER 13-02-043-CV

    COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

IN THE INTEREST OF G.C.T., T.L.T., A/K/A T.L.T.,

T.S.W.T., AND M.L.C.T., A/K/A G.T.

On appeal from the 313th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Ya ez

Appellee, the Texas Department of Protective & Regulatory Services (ATDPRS@), sued to terminate the parental rights of appellants, Sheila Joyce Deavers (ADeavers@) and George Thomas (AThomas@) to four of their children: G.C.T.; T.L.T., a/k/a T.L.T.; T.S.W.T.; and M.L.C.T., a/k/a G.T. (Athe children@).[1] Following a bench trial, the trial court terminated both parents= parental rights. By one point of error, Deavers contends the trial court erred in denying her motion for continuance and request for a competency evaluation. By one point of error, Thomas challenges the legal and factual sufficiency of the evidence supporting termination of his parental rights. We affirm.

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1.

Deavers

Deavers contends the trial court erred in denying her motion for continuance and request for a competency evaluation because she suffers from a mental illness which interfered with her ability to communicate with counsel, and thus prevented her from receiving effective assistance of counsel. TDPRS contends the trial court did not abuse its discretion in denying Deavers=s motion for continuance and competency evaluation because: (1) the motion failed to satisfy the requirements of Texas Rule of Civil Procedure 251[2] because it was neither in writing nor supported by affidavit; and (2) she failed to provide evidence that she suffered from a mental illness which rendered her incompetent to proceed.

Applicable Law

To grant or deny a continuance is within the trial court's discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); Rosedale Partners Ltd. v. Resolution Trust Corp., 882 S.W.2d 622, 630 (Tex. App.BCorpus Christi 1994, writ denied). Generally, a court is presumed to have correctly exercised its discretion when it denies a motion that does not comply with the rules governing continuances. Rosedale, 882 S.W.2d at 630.

In the present case, Deavers and Thomas each filed a request for findings of fact and conclusions of law. However, no notice of past due findings was filed and the trial court did not file findings of fact or conclusions of law. Appellate courts must give effect to the intended findings of the trial court and affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. See Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 630 n.10 (Tex. 1992). If no findings of fact or conclusions of law are filed, the reviewing court must imply all necessary fact findings in support of the trial court's judgment. Id.

Here, the record contains no written motion for continuance supported by affidavit.[3] At trial, on August 15, 2001, Deavers=s counsel urged an Aoral motion, to have [Deavers] evaluated by both the psychiatrist and psychologist.@ Counsel argued that he was Aunable to adequately prepare [Deavers] for trial@ because she did not Agrasp these proceedings.@ As evidence in support of the motion, counsel argued that although Deavers was obviously pregnant, she was Ain denial of her pregnancy.@ Counsel for TDPRS advised the court that although Deavers was previously ordered by the court to submit to a psychological evaluation, there was no evidence she had complied with the order. Accordingly, no information was available regarding Deavers=s mental state. The trial court orally denied Deavers=s motion and continued the trial until September 5, 2001. On September 5, Deavers=s counsel advised the court that he had filed a motion for continuance and competency evaluation on Deavers=s behalf; the trial court denied the motion.

We construe Deavers=s argument to include a claim she was denied effective assistance of counsel based on the contention that she lacked sufficient understanding of the proceedings to assist in her own defense. As this Court noted in In re I.V., 61 S.W.3d 789, 799 (Tex. App.BCorpus Christi 2001, no pet.), the majority of Texas appellate courts that have considered the issue have held that the constitutional right to effective assistance of counsel in criminal actions does not extend to a civil proceeding for termination of parental rights. Id. (citing In re B.B., 971 S.W.2d 160, 172 (Tex. App.BBeaumont 1998, pet. denied); Arteagav. Tex. Dep't of Protective and Regulatory Servs., 924 S.W.2d 756, 762 (Tex. App.BAustin 1996, writ denied); In re J.F., 888 S.W.2d 140, 143 (Tex. App.BTyler 1994, no writ); Posner v. Dallas County Child Welfare Unit, 784 S.W.2d 585, 588 (Tex. App.BEastland 1990, writ denied); Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729, 734-35 (Tex. App.BDallas 1986, writ ref'd n.r.e.)); see also In re A.R.R., 61 S.W.3d 691, 695 (Tex. App.BFort Worth 2001, pet. denied). Two courts, the Houston First and Waco appellate courts, have held that the right to effective assistance of counsel extends to parties in termination cases. In re B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.BWaco 2001, no pet.); In re J.M.S., 43 S.W.3d 60, 63 (Tex. App.BHouston [1st Dist.] 2001, no pet.). The supreme court has not addressed the issue.

This Court has not yet decided the issue of whether a parent is entitled to receive effective assistance of counsel at a termination hearing, see In re I.V., 61 S.W.3d at 799, and we conclude it is unnecessary for us to do so in the present case. Deavers presented no evidence in support of her contention that her inability to understand the proceedings deprived her of effective assistance of counsel. The record reflects only the unsworn assertions of Deavers=s counsel that she did not Agrasp the proceedings.@ Without deciding whether Deavers was entitled to effective assistance of counsel, we hold that even if she was entitled to effective assistance of counsel, she failed to meet her burden under the Strickland test.[4] After reviewing the record, we hold that Deavers failed to present any evidence in support of her motion for continuance and competency evaluation. We hold that the trial court did not abuse its discretion in denying the motion. We overrule Deavers=s only point of error.

Thomas

By a single issue, Thomas contends the evidence is legally and factually insufficient to support the trial court=s judgment terminating his parental rights.

The Texas Family Code sets forth the statutory grounds upon which a court may involuntarily terminate a parent-child relationship. Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2002). In addition to establishing one or more of the grounds under section 161.001(1), the petitioner must establish that termination is in the best interest of the child. Tex. Fam. Code Ann. ' 161.001(2) (Vernon Supp. 2002). Each of the above elements must be established by clear and convincing evidence. Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2002). "Clear and convincing evidence" is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re I.V., 61 S.W.3d at 794 (citing In re A.D.E., 880 S.W.2d 241, 244 (Tex. App.BCorpus Christi 1994, no writ). The clear and convincing standard does not alter the standard of review to be applied at the appellate court level for sufficiency of the evidence challenges. Id.[5]

When both legal and factually sufficiency challenges are raised, we examine the legal sufficiency of the evidence first. D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 352 (Tex. App.BAustin 1993, no writ). When presented with a challenge to the legal sufficiency of the evidence, this Court must consider all of the evidence in a light most favorable to the party in whose favor the verdict was rendered, indulging every reasonable inference in that party's favor. In re B.S.T., 977 S.W.2d 481, 483 (Tex. App.BHouston [14th Dist.] 1998, no pet.) (citing Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998)). If there is any evidence of probative force to support the finding, it must be upheld. Id. (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)). In reviewing a challenge to the factual sufficiency of the evidence, we must first consider, weigh, and examine all of the evidence supporting and contrary to the finding. Id. (citing Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989)). Having done so, this Court should set aside the verdict only if the evidence which supports the finding is so weak as to be clearly wrong and manifestly unjust. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

Thomas does not contend on appeal that termination was not in the best interest of the children under section 161.001(2). See Tex. Fam. Code Ann. ' 161.001(2) (Vernon Supp. 2002). Therefore, if the evidence is legally and factually sufficient to support any one of the specific conducts identified under section 161.001(1), the termination is proper and we must affirm the judgment of the trial court. See Tex. Fam. Code Ann. ' 161.001(1) (Vernon Supp. 2002).

The trial court=s order of termination stated that the court found by clear and convincing evidence that termination of Thomas=s parental rights is in the best interest of the children and that Thomas:

has knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children.

has engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.

has constructively abandoned the children who have/has been in the managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months; the department or authorized agency has made reasonable efforts to return the children to the father; the father has not visited or maintained contact with the children; and the father has demonstrated an inability to provide the children with a safe environment.

See Tex. Fam. Code Ann. ' 161.001(1)(D),(E), (N) (Vernon Supp. 2002).

On appeal, Thomas specifically challenges the legal and factual sufficiency of the evidence supporting the findings that he: (1) failed to support the children in accordance with his ability during a period of one year ending within six months of the date of filing of the petition; (2) constructively abandoned the children and failed to regularly visit or maintain significant contact with the children; and (3) failed to comply with the provisions of the family service plan. See Tex. Fam. Code Ann. ' 161.001(1)(F), (N), (O) (Vernon Supp. 2002).

Thus, although Thomas challenges the legal and factual sufficiency of the evidence supporting the trial court=s findings in the termination order as to section 161.001(1)(N), he offers no arguments challenging the court=s findings of grounds for termination under sections 161.001(1)(D) and 161.001(1)(E). See Tex. Fam. Code Ann. ' 161.001(1)(D), (E) (Vernon Supp. 2002). Even if we were to determine that the evidence is insufficient to support the trial court=s order terminating Thomas=s rights on the grounds of constructive abandonment, the order would be supported by the trial court=s unchallenged findings. See In re K.C., Jr., 23 S.W.3d 604, 607 (Tex. App.BBeaumont 2000, no pet.).

Under section 161.001(1)(E), termination is supported by evidence that a parent engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children. See Tex. Fam. Code Ann. ' 161.001(1)(E) (Vernon Supp. 2002). AEndanger,@ as used in the statute, means Ato expose to loss or injury; to jeopardize.@ Texas Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It is not necessary for the conduct to be directed toward the children or that the children actually suffer injury in order to endanger their well-being. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).

Here, the evidence shows that Deavers suffered from psychological problems and was ordered to submit to a psychological evaluation, but failed to do so. Creisha Lewis Cotton, the caseworker assigned to the children, testified that on one occasion, she witnessed an incident in which Deavers ran out of the house, clutching her four-month-old infant and wielding a butcher knife. Ms. Cotton testified that Thomas had harmed his children by leaving them in Deavers=s care. She also testified that Thomas failed to maintain a consistent visitation schedule with the children and failed to provide for their support. Ms. Cotton testified it was in the children=s best interest to terminate the parental rights of Deavers and Thomas. Thomas testified that he failed to comply with the requirements of the family service plan, including requirements that he take a drug and alcohol assessment and attend parenting classes. The record reflects Thomas did not visit the children for seven months between December 2000 and July 2001.

We conclude the evidence is legally sufficient to support the trial court=s finding that Thomas knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children.

Furthermore, after considering and weighing all the evidence, we conclude that the trial court could have reasonably found that the statutory basis for termination of Thomas=s parental rights was established by clear and convincing evidence. The evidence that Thomas engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children is not so weak or so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, the evidence supporting termination of Thomas=s rights is factually sufficient.

We hold that the evidence was legally and factually sufficient to support the finding that Thomas knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children. Having found sufficient evidence to support one of the grounds for termination, we need not consider the other grounds contained in the termination order. See Phillips v. Tex. Dep=t of Protective and Regulatory Servs., 25 S.W.3d 348, 358 (Tex. App.BAustin 2000, no pet.).

The judgment of the trial court is AFFIRMED.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

6th day of June, 2002.

[1]The parental rights of Deavers and Thomas were terminated as to the four children involved in this appeal in trial court cause number 96-99860 in the 313th District Court of Harris County, Texas. The record reflects that the case was consolidated for trial with a related case, trial court cause number 2000-06035J, styled In the Interest of E.L.T., in which the parental rights of Deavers and Thomas were terminated as to a fifth child, E.L.T.

[2]Texas Rule of Civil Procedure 251 provides: ANo application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@ Tex. R. Civ. P. 251.

[3]We note that in argument to the trial court, Deavers=s counsel advised the court that a brief in support of the motion for a competency evaluation was filed Ain the [E.L.T.] cause number.@

[4]Under the two-prong test for ineffective assistance in criminal cases, an appellant must show that: (1) counsel=s representation fell below an objective standard of reasonableness based on prevailing professional norms; and (2) but for counsel=s errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

[5]We note that the courts of appeals are divided on whether the clear and convincing standard of proof required at trial to terminate parental rights requires a stricter standard of appellate review. Compare, e.g., In re A.R.R., 61 S.W.3d 691, 697 (Tex. App.BFort Worth 2001, pet. denied) (applying a heightened standard of review, requiring a determination that evidence is sufficient to make the existence of the facts highly probable, not whether evidence is sufficient to make the existence of fact more probable than not, as in ordinary civil cases); In re K.C., Jr., 23 S.W.3d 604, 605 (Tex. App.--Beaumont 2000, no pet.) (same); In the Interest of B.R., 950 S.W.2d 113, 118-19 (Tex. App.--El Paso 1997, no writ) (same); with In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (rejecting heightened standard and applying traditional factual sufficiency standard of review). This Court has not applied an elevated standard of review when examining the sufficiency of the evidence in parental termination cases. In re I.V., 61 S.W.3d 789, 794 (Tex. App.BCorpus Christi 2001, no pet.).