Opinion
No. 09-09-00499-CV
Submitted on August 6, 2010.
Opinion Delivered August 19, 2010.
On Appeal from the 418th District Court, Montgomery County, Texas, Trial Cause No. 09-02-02036 CV.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Appellant Jeffrey Scott Ziegler, a prisoner appearing pro se, appeals the trial court's termination of his parental rights and its granting of petitioners' request to adopt the minor child, I.E.Z. Ziegler generally complains of three issues for our review. We affirm the trial court's judgment.
While Ziegler complains of lack of appointed counsel, under Texas law, Ziegler has no right to appointed counsel in a private termination suit. While section 107.013 of the Texas Family Code provides a statutory right to counsel in parental-rights termination cases where suit was filed by a governmental entity and the parent was indigent, no such right exists in private termination cases. See TEX. FAM. CODE ANN. § 107.013 (Vernon Supp. 2009); see also In re J.C., 250 S.W.3d 486, 489 (Tex. App.-Fort Worth 2008, pet. denied) (holding no statutory right exists to appointed counsel in a private termination suit).
Ziegler argues that his appeal is from a hearing on a motion for summary judgment. Petitioners, however, did not file a motion for summary judgment in the underlying action of this appeal. By liberal construction, we find Ziegler challenges both the termination of his parental rights and the adoption order.
Background
J.A.R. ("Mother") and Ziegler are the biological parents of I.E.Z., who was born in 2002. Mother and Ziegler were married shortly after I.E.Z's birth. Ziegler, who has been incarcerated since May 2005, is serving concurrent sentences for three counts of child molestation and one count of rape of a child. Ziegler and Mother were divorced in November 2005.
There are no court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting the child the subject of this suit. The Washington state marriage dissolution decree granted Mother's request to relocate to Texas.
In 2008 Mother married N.J.R. ("Stepfather") and in February 2009, they filed a petition seeking to terminate Ziegler's parental rights to I.E.Z. under section 161.001(1), subsections (E), (F), (L), and (Q) of the Texas Family Code, and to allow Stepfather to adopt I.E.Z. See TEX. FAM. CODE ANN. § 161.001(1) (E), (F), (L), (Q) (Vernon Supp. 2009).
The parties waived a jury trial, and all questions of fact and law were submitted to the trial court. During trial, the court took judicial notice of Ziegler's jury-verdict of guilty for the offenses of child molestation and rape of a child and admitted into evidence the Washington state certified copy of the judgment and sentence in that case. The trial court also received into evidence a copy of petitioners' request for admissions and upon finding that Ziegler failed to respond to these requests, the trial judge deemed them admitted, conditioned upon his review of the file.
The trial court also heard testimony from Mother, who indicated that Ziegler was convicted of child molestation and the rape of a child in September 2005. She also testified that he is currently serving a sentence of no less than 198 months to life for three of the offenses and 318 months to life for the other offense. Finally, she testified it would be in I.E.Z.'s best interest to terminate the parent-child relationship between I.E.Z. and Ziegler.
Although Ziegler answered the termination suit, he did not provide any affidavits to the trial court as evidence. While the trial court allowed Ziegler to participate in the trial of this matter through the filing of affidavits or documentary evidence, Ziegler did not submit admissible evidence challenging the existence of the convictions, the length of the sentences, or his inability to support I.E.Z. Ziegler submitted various pieces of correspondence from his family and friends, but he did not properly authenticate, or provide affidavits attesting to the authenticity of the letters, and the letters were not sworn to. Finally none of the letters contained factual allegations contrary to the trial court's findings.
The trial court found that Ziegler's parental rights should be terminated, and that the termination was in the best interest of I.E.Z.
STANDARD OF REVIEW
Proceedings to terminate parental rights under the Texas Family Code require proof by clear and convincing evidence. TEX. FAM. CODE. ANN. § 161.001(1). The code defines "clear and convincing evidence" as "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. The Texas Supreme Court explains the appellate court's role when legal sufficiency of the evidence is challenged:
[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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.
In re J.O.A., 283 S.W.3d 336, 344-345 (Tex. 2009) ( quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). When factual sufficiency of the evidence is challenged, only then is disputed or conflicting evidence under review. Id. at 345. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder 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. In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a factfinder's findings. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
DISCUSSION
Termination Proceeding
Ziegler contends that this court should reverse the trial court's termination ruling because he did not commit the crimes he was accused of in the state of Washington. Section 161.001 states the grounds by which a trial court may order termination of the parent-child relationship. TEX. FAM. CODE ANN. § 161.001. In relevant part, the statute provides:
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
(Q) knowingly engaged in criminal conduct that has resulted in the parent's:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition; [and]
. . . .
(2) that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(1) (Q), (2). The trial court's termination order was based on four predicate violations (section 161.001(1), (E), (F), (L), (Q)), and on a best interest finding in section 161.001(2). If multiple predicate violations are found by the trial court as a basis for termination, we will affirm on any one violation that is established by clear and convincing evidence. See In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.-Waco 2006, pet. denied).
In In re H.R.M, the mother and stepfather of the child sought to terminate the rights of the incarcerated father under section 161.001(1) (Q) of the Texas Family Code. 209 S.W.3d 105, 108 (Tex. 2006). A jury found the father's parental rights should be terminated. Id. Reversing the trial court's order, the court of appeals concluded that the time remaining on the father's prison sentence was insufficient evidence from which a factfinder could reasonably form a firm belief or conviction that the father would be confined for at least two years. Id. at 107-08. In reversing the court of appeals, the Texas Supreme Court recognized that "[i]n some cases, neither the length of the sentence nor the projected release date is dispositive of when the parent will in fact be released from prison." Id. at 108. The Court explained:
[E]vidence of the availability of parole is relevant to determine whether the parent will be released within two years. Mere introduction of parole-related evidence, however, does not prevent a factfinder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years.
Id. at 109. The Court noted that the record showed that the father had multiple convictions and sentences and that he received a seven-year sentence for one offense and had thirteen years left to serve on a prior sentence. Id. The record also reflected that the father had not provided for the child after his divorce from the child's mother. Id. at 110. The Court found that the father failed to provide care for the child by leaving the child with his biological mother. Id. at 111.
At trial, the court admitted into evidence Ziegler's criminal convictions for child molestation and child rape and his sentences for those offenses. Ziegler presented no admissible evidence to the trial court to negate this evidence. Ziegler is currently serving a sentence of no less than 198 months to life for some of the offenses and 318 months to life for the other offense. He presented no evidence to the trial court regarding any likelihood for parole. Further, the record supports a finding that Ziegler has not provided care or support to I.E.Z. since at least 2006. Under section 161.001(1) (Q), the trial court's finding that Ziegler "knowingly engaged in criminal conduct that resulted in his conviction of an offense and confinement or imprisonment and inability to care for [I.E.Z.] for not less than two years from the date the petition was filed" is supported by clear and convincing evidence.
When prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption. Williams v. State, 946 S.W.2d 886, 900 (Tex. App.-Waco 1997, no pet.).
We next consider the trial court's finding regarding the best interest of I.E.Z. Several factors should be taken into account when determining whether termination of parental rights is in the best interest of the child, including the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, and the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Ziegler's criminal conviction on three counts of child molestation and one count of rape shows a pattern of conduct that is detrimental to the very idea of child-rearing; and Ziegler did not produce evidence to the trial court of his plan to support the child during his imprisonment. Based on all these considerations, as well as petitioners' factual assertions, we conclude the evidence supports a finding that termination is in the best interest of I.E.Z.
After considering the entire record, we hold that there is legally and factually sufficient evidence to support a finding that Ziegler engaged in specific conduct under section 161.001(1) (Q) of the Texas Family Code, and that termination would be in I.E.Z.'s best interest. See TEX. FAM. CODE ANN. § 161.001 (1) (Q), (2); see also TEX. FAM. CODE ANN. § 263.307 (Vernon 2008); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Finding sufficient evidence to support termination under section 161.001(1) (Q), we need not consider the sufficiency of the evidence with regards to subsections (E), (F), and (L).
Because we affirm the trial court's ruling, we need not address appellees' cross-point one.
Discovery Proceeding
Ziegler argues that the trial court erred in denying his discovery requests under Rules 194 and 205.3 of the Texas Rules of Civil Procedure. He states that "the court" never responded to his request for medical records, school records, daycare documents, and other financial records. Ziegler argues that the trial court's failure to provide him with these documents prejudiced him and denied him his constitutional right to due process.
Ziegler misapplies the discovery rules. Rule 194.1 expressly provides that "[a] party may obtain disclosure from another party of the information or material listed in Rule 194.2 by serving the other party. . . ." TEX. R. CIV. P. 194.1 (emphasis added). Rule 194 does not provide a method for parties to serve discovery requests on the trial court. Even if the rules provided for this type of discovery to be directed to the trial court, the record here does not support that Ziegler propounded discovery to the trial court or to the appellees. Finally, even if Ziegler had properly served a request for disclosure to appellees under Rule 194, Rule 194 is not the proper discovery tool for requesting the type of document production Ziegler refers to in his brief. Additionally, while Rule 205 governs a party's ability to obtain discovery from nonparties, there is no indication in the record that Ziegler properly requested discovery under this rule, which requires a court order and the issuance of subpoenas. Finding no error, we overrule this issue.
Adoption Proceeding
Ziegler appears to complain that the trial court should not have granted petitioners' request to adopt I.E.Z. for the following reasons: the appellees failed to meet all of the procedural requirements for the adoption; the trial court failed to produce records; the appellees made untruthful statements to the trial court; and the step parent adoption is not in I.E.Z.'s best interest. Since the termination decree is valid, Ziegler has no legal interest in I.E.Z. and therefore lacks standing to appeal the trial court's adoption order. The applicable portion of section 161.206(b) of the Texas Family Code provides:
[A]n order terminating the parent-child relationship divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides.
TEX. FAM. CODE ANN. § 161.206(b) (Vernon 2008). Once the trial court terminates a parent's rights to a child, the parent no longer has standing as a party in a subsequent custody or adoption proceeding. See Durham v. Barrow, 600 S.W.2d 756, 760-61 (Tex. 1980) (concluding that if a termination judgment is valid, then the biological parent, whose rights were terminated, does not have standing to bring a bill of review as a party to an adoption); In re H.M.M., 230 S.W.3d 204 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (holding that on termination of her parental rights, the mother was divested of all legal rights to the child and therefore lacked standing to appeal the trial court's custody order); Ryder v. State, 917 S.W.2d 503, 505 (Tex. App.-Waco 1996, no writ) (concluding that a mother whose parental rights had been terminated did not have standing to appeal the review hearing's outcome regarding the children's placement in foster care); In re McAda, 780 S.W.2d 307, 312 (Tex. App.-Amarillo 1989, writ denied) (holding that a parent whose relationship to a child has been terminated could not be a party to any subsequent adoption proceeding as she had no further justifiable interest in the child).
Once the trial court validly terminated Ziegler's parental rights by court order, Ziegler had no further justifiable interest in the child and was not a party to the adoption suit. Because Ziegler has no standing to challenge the trial court's order, we overrule this issue.
APPELLEE'S CROSS-POINT NUMBER TWO
Appellees contend that Ziegler "has proceeded with a frivolous appeal solely for the purpose of delay" and that appellees "should be entitled to damages because of the frivolous appeal[.]" The determination of whether to grant sanctions for a frivolous appeal is a matter of discretion that this court exercises with prudence and caution only after careful deliberation in truly egregious circumstances. Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 657 (Tex. App.-Houston [14th Dist.] 2008, no pet.). While we have overruled each of Ziegler's issues, we decline to find the appeal frivolous and we overrule appellees' cross-point two. We affirm the judgment of the trial court.
AFFIRMED.