Opinion
NO. 01-16-00219-CV
02-06-2018
IN the INTEREST OF B.L.R., a Child
William B. Connolly, CONNOLLY & SHIREMAN, LLP, 2930 Revere, Suite 300, Houston, TX 77098, for Appellant. Mark T. Zuniga, Office of General Counsel, 2401 Ridgepoint, Bld. H-2, Austin, TX 78754, (Attorney for TFPS). Amy Slaughter, 2261 Northpark Dr., Suite 270, Kingwood, TX 77339, (Attorney for P.R.H. and H.F.H.).
William B. Connolly, CONNOLLY & SHIREMAN, LLP, 2930 Revere, Suite 300, Houston, TX 77098, for Appellant.
Mark T. Zuniga, Office of General Counsel, 2401 Ridgepoint, Bld. H-2, Austin, TX 78754, (Attorney for TFPS).
Amy Slaughter, 2261 Northpark Dr., Suite 270, Kingwood, TX 77339, (Attorney for P.R.H. and H.F.H.).
Panel consists of Chief Justice Radack and Justices Higley and Bland.
Laura Carter Higley, Justice
Appellant, A.M.B., appeals from both the trial court’s "Order Granting Adoption" and the order granting the motion to dismiss her modification/adoption petition in this suit affecting the parent-child relationship ("SAPCR"). Appellees, Texas Department of Family & Protective Services ("DFPS"), and P.R.H. and H.F.H. ("Intervenors"), have filed separate motions to dismiss the appeal as untimely as well as briefs on the merits. We deny the motions to dismiss, but affirm the denial of the modification/adoption petition.
Background
This case originated as a termination proceeding of the biological parents' rights to the child in question, B.L.R., filed by DFPS in 2013 in Harris County but is on appeal as a modification/adoption SAPCR. During the pendency of the termination, on March 22, 2014, DFPS temporarily placed B.L.R. with Appellant, a non-relative who lives in Williamson County, because she had previously adopted B.L.R.’s older half-sister. On July 31, 2014, the court signed the decree terminating B.L.R.’s biological parents' rights and naming DFPS as sole managing conservator under trial court cause number 2013-05336J.
On September 22, 2014, DFPS removed B.L.R., who was then 19 months old, from Appellant’s foster care, pending an investigation. DFPS had received a medical-neglect allegation after B.L.R. received medical treatment at a hospital two days after having suffered second-degree burns in Appellant’s home.
A. Appellant’s First Modification/Adoption Petition in Harris County
On November 4, 2014, Appellant, now the former foster mother, filed her first combined "Petition to Modify the Parent-Child Relationship and Petition for Adoption" (hereinafter, "Modification/Adoption Petition"), in Harris County trial court cause number 2013-05336J. Appellant sought to modify the termination decree, seeking sole managing conservatorship over B.L.R., and also sought to adopt B.L.R., basing her adoption standing on her adopting B.L.R.’s older half-sister. Under the consent section, Appellant stated that the written consent of the managing conservator will be filed. Appellant also filed a motion for mandatory transfer to Williamson County, contending that B.L.R. had lived there for six months.
On November 12, 2014, DFPS entered a Reason to Believe ("RTB") finding against Appellant for medical neglect of B.L.R. This RTB finding was later upheld after Appellant requested an administrative review. On November 13, 2014, after a special status hearing, the Harris County court gave DFPS permission to temporarily place B.L.R. with the Intervenors, P.R.H. and H.F.H., non-relative foster parents who live in Montgomery County, near the border of Harris County.
B. Proceedings in Williamson County
On February 2, 2015, an agreed order was signed transferring the case to Williamson County, which was assigned trial court cause number 15-0697-FC3, and the Harris County district clerk closed cause number 2013-05336J. Appellant appeared with counsel for a permanency placement review hearing in Williamson County on March 24, 2015.
On March 18, 2015, the foster parents of B.L.R., the Intervenors, filed a petition for adoption of B.L.R. as a new suit in Williamson County, which was assigned trial court cause number 15-024-AC3. On June 30, 2015, the Williamson County court signed an order granting DFPS’s motion to transfer Appellant’s case under cause number 15-0697-FC3 back to Harris County, at which point it was assigned a new trial court cause number 2015-04570J.
C. DFPS' Motion to Dismiss in Harris County
On August 24, 2015, Appellant filed a motion for temporary orders in Harris County seeking, among other things, a hearing to determine whether the RTB finding should be vacated to allow B.L.R. to be returned to Appellant’s home. On November 5, 2015, DFPS filed a motion, entitled "Motion to Dismiss [Appellant’s] Petition to Modify the Parent-Child Relationship and, in the Alternative, Motion to Deny [Appellant’s] Motion for Temporary Orders." DFPS' motion contends, among other things, that Appellant’s modification should be dismissed because she failed to attach the affidavit required under Section 156.102(c) of the Family Code for modifications filed within a year of the prior final order. In the alternative, DFPS' motion also sought to deny Appellant’s motion for temporary orders, pursuant to Section 156.006(b) of the Family Code, and set a hearing for November 10, 2015.
D. Appellant’s Second Modification/Adoption Petition in Harris County and First Intervention Petition for Adoption in Williamson County
On November 9, 2015, Appellant filed a motion for continuance of the November 10, 2015 hearing. Later on November 9, 2015, Appellant filed her first amended Modification/Adoption Petition in the existing Harris County trial court cause number 2015-04570J.
On the same day as her filings in Harris County, November 9, 2015, Appellant also filed a "Petition in Intervention for Adoption of Child and Plea in Abatement" in Williamson County trial court cause number 15-024-AC3. Appellant sought to abate the Intervenors' adoption petition there, contending that the Harris County court had continuing, exclusive jurisdiction of B.L.R. after entering the 2014 termination decree; alternatively, she sought to intervene and to be permitted to adopt B.L.R.
E. Intervenors' Intervention/Adoption Petition in Harris County
Later on November 9, 2015, the Intervenors filed their "Plea to the Jurisdiction, Original Petition in Intervention [in] Suit to Modify Order in Suit Affecting the Parent-Child Relationship and for Adoption of Child" (hereinafter, "Intervention/Adoption Petition") in Harris County trial court cause number 2015-04570J, seeking to intervene in Appellant’s Modification/Adoption Petition, and also to adopt B.L.R. At the November 10, 2015 hearing, the associate judge granted Appellant’s motion for continuance, resetting the hearing for December 8, 2015.
In the early morning of December 8, 2015, about six hours before the hearing, Appellant filed her second amended Modification/Adoption Petition in Harris County trial court cause number 2015-04570J. Although Appellant titled this petition as her "First Amended Petition to Modify Order in Suit Affecting Parent-Child Relationship and Petition for Adoption," it was her second amended petition because it was filed after the one she filed on November 9, 2015, and her first one to attach an affidavit. Appellant’s affidavit started with allegations based on her personal knowledge from the period in which B.L.R. was in her foster care from March 2014 until September 22, 2014, when he was taken by DFPS to respite care before being moved to the home of the new foster parents, the Intervenors, in November 2014. Appellant’s affidavit further alleged that, based on "many conversations with the new foster parents," the Intervenors, B.L.R.’s emotional development was in severe danger of being impaired because he was moved from his half-sister. Under the consent section of the petition, Appellant stated that the written consent of DFPS, the managing conservator, will be filed with the court, but should that consent be withheld, she requested that the court find that action unreasonable and order DFPS to consent, or to allow the adoption without it.
F. The Review/Motion to Modify Hearing
At the December 8, 2015 hearing, the DFPS put on permanent management conservatorship ("PMC") testimony by Erica Lerma, a Child Protective Services ("CPS") caseworker for B.L.R. Lerma testified that B.L.R. had been placed with the Intervenors as foster parents for over a year since November 2014, that the Intervenors became an adoptive placement in January 2015, that B.L.R. had bonded well with the Intervenors and their other children, that the Intervenors had been meeting all of B.L.R.’s basic needs, and that CPS was consenting to the Intervenors' Intervention/Adoption Petition because it was in the best interest of B.L.R.
DFPS’s counsel argued that it had moved to dismiss Appellant’s Modification/Adoption Petition, in part, because she had failed to attach the affidavit required by Family Code Section 156.102, and that she only had attached an affidavit late on the evening before or the morning of the hearing which, if the court considered it, still did not meet the requirements of Section 156.102(b)(1) to allege that B.L.R.’s present environment will endanger his physical health or emotional development. Appellant’s counsel contended that she was not required to include an affidavit for her adoption petition and, in any event, she attached one for her modification petition before the hearing. Counsel also stated that her client was prepared to testify. Following arguments by counsel, the trial court orally denied Appellant’s modification petition at least a couple of times, ruling that "[y]our petition for modification is denied."
At the end of this hearing, Appellant’s counsel requested clarification from the court as to whether Appellant’s adoption petition was stricken as well. The court responded in the affirmative, stating that "[i]t appears to be because it’s part of the petition to modify and that petition is denied, so I would think so." Appellant’s counsel then asked whether Appellant’s filing a standalone adoption petition would be appropriate, and the trial court responded, "I don't know. I mean she still has some—she still has some standard she has to meet, I suppose. But refiling a petition to modify [sic] is not gonna [sic] really help her cause." After Appellant asked the court when they could have the hearing for her to testify about whether it was proper for DFPS to have separated B.L.R. from his half-sibling, the court responded that it was not that kind of hearing because it had "strictly made rulings on some legal issues," and thus, "[w]e just had the hearing."
Although the trial court signed an order of permanency on December 9, 2015, incorporating the PMC plan for B.L.R. to stay with the Intervenors, there was no signed order either denying Appellant’s Modification/Adoption Petition or granting DFPS’s motion to dismiss following the December 8, 2015 hearing. While Appellant’s counsel later contended that it was not Appellant’s duty to submit a proposed order for purposes of filing an interlocutory appeal, it is undisputed that she neither submitted a proposed order nor requested any findings of fact or conclusions of law from this hearing.
G. Appellant’s Third Adoption Petition
After the December 8, 2015 hearing, Appellant filed a standalone "Petition for Adoption and Mandatory Motion to Transfer" on December 8, 2015, not in the existing trial court cause number 2015-04570J, but as a new suit in Harris County. Appellant sought transfer of the case to Montgomery County, where B.L.R. was residing with Intervenors. Under the consent section, Appellant stated that the written consent of DFPS, the managing conservator, will be filed with the court, but should that consent be withheld, she requested that the court find that action unreasonable and order DFPS to consent, or to allow the adoption without it. This was Appellant’s third adoption petition, but her first standalone one filed as a new suit.
H. The Adoption Order
On December 14, 2015, Intervenors filed an adoption package supporting their petition to adopt B.L.R. This adoption package contained, among other documents, an affidavit executed by the DFPS with its consent to adoption, and the Intervenors' proposed order of adoption. Although the Intervenors served the adoption package on Appellant’s counsel, and three members of her legal team opened the electronic service, Appellant’s counsel did not appear at the December 17, 2015 hearing, which was not recorded.
On December 17, 2015, the trial court signed an "Order Granting Adoption" ("Adoption Order"), granting the Intervenors' Intervention/Adoption Petition for B.L.R., after finding that adoption was in the best interest of the child, ordering that B.L.R.’s name be changed, and sealing the record. This Adoption Order included a clause at the end, stating that "IT IS ORDERED that all relief requested in this case and not expressly granted is denied."
I. Appellant’s Third Modification Petition
On December 18, 2015, Appellant filed her third modification petition in the existing Harris County trial court cause number 2015-04570J, entitled "Petition to Modify Order in Suit Affecting the Parent-Child Relationship and Motion for Mandatory Transfer [ Tex. Fam. Code § 155.201 ]." Although Appellant’s third modification petition noted that the Intervenors had an adoption petition abated in Williamson County, she neither sought adoption nor referred to the Adoption Order. Instead, Appellant again sought to modify the 2014 termination decree, seeking sole managing conservatorship over B.L.R. because she had previously adopted B.L.R.’s older half-sister, and again sought transfer of the case to Montgomery County. This was Appellant’s first standalone modification petition.
J. The Order Granting DFSP’s Motion to Dismiss
On February 15, 2016, the trial court signed an order granting DFPS’s motion to dismiss. It was entitled, "Order on Motion to Dismiss [Appellant’s] Petition to Modify the Parent-Child Relationship and, in the Alternative, Motion to Deny [Appellant’s] Motion for Temporary Orders" (hereinafter, "Dismissal Order").
On February 29, 2016, Appellant filed a "Motion to Unseal File," claiming that she had attempted to file a motion to set aside the judgment on February 19, 2016, after just learning of the Adoption Order, but discovered that the file had been sealed. Also on February 29, 2016, Appellant filed her first "Motion to Set Aside Judgment and for New Trial."
On March 10, 2016, the Intervenors filed a "Motion for Clarification of Prior Order, for Attorney’s Fees, and for Sanctions" (hereinafter, "Motion for Clarification"). This Motion for Clarification requested, among other things, that the court clarify that the Dismissal Order also denied Appellant’s adoption petition because the court had orally rendered a denial on December 8, 2015. Intervenors did not pursue a hearing on this Motion for Clarification because they later believed that the Dismissal Order was signed beyond the court’s plenary power.
K. Notices of Appeal
On March 15, 2016, Appellant filed a notice of appeal in the trial court from the February 15, 2016 Dismissal Order, which was assigned here. On March 24, 2016, Appellant filed an amended notice of appeal in this Court from both the December 17, 2015 Adoption Order and the February 15, 2016 Dismissal Order. See TEX. R. APP. P. 25.1(g).
L. The Motion to Set Aside Judgment and for New Trial Hearing
On March 29, 2016, Appellant filed her "First Amended Motion to Set Aside Judgment and for New Trial" (hereinafter, "Motion for New Trial"). She claimed, among other things, that a new trial should be granted because both the Intervenors and DFPS had presented the proposed Adoption Order without notifying the court of Appellant’s abated Williamson County adoption petition, that the Adoption Order was void because she did not receive notice of that hearing, and that the RTB finding had been overturned in January 2016, through an administrative appeal. Appellant’s counsel later filed a supplemental affidavit on April 14, 2016, for the Motion for New Trial, contending that she had neither received timely notice of the Adoption nor the Dismissal Orders.
On May 3, 2016, the trial court held the Motion for New Trial hearing. After hearing Appellant’s counsel’s argument, the court stated that, "[b]ut now it seems to me that what [Appellant’s counsel is] saying is, well there was two sets of pleadings going. So [Appellant] had two irons in the fire. I denied one and we did the adoption," and then Appellant said, "that’s no good because we still had another set of pleadings out there." The court noted that, after it had orally denied Appellant’s modification petition at the December 8, 2015 hearing, Appellant could have submitted a proposed order and appealed, but Appellant’s counsel responded that Appellant was not required to do so because usually the successful party submits the proposed order.
After hearing argument, the trial court signed an order denying Appellant’s Motion for New Trial on May 3, 2016. The trial court also signed another order on May 3, 2016, sustaining DFPS’s objection to Appellant’s supplemental affidavit and disregarding it. The court also signed an agreed order on May 3, 2016, allowing Appellant’s counsel limited access to request the sealed adoption file records starting from March 1, 2014, for purposes of this appeal.
M. Proceedings in this Court
Appellees DFPS and the Intervenors, P.R.H. and H.F.H., both filed similar motions to dismiss the appeal for want of jurisdiction as untimely. Appellant filed replies to both motions. After Appellant filed a brief on the merits, DFPS and the Intervenors filed briefs in response, and Appellant filed reply briefs. The motions to dismiss were carried with the case.
DISCUSSION
A. Motions to Dismiss
Both appellees' motions argue that (1) Appellant’s March 15, 2016 notice of appeal was untimely because the December 17, 2015 Adoption Order was the final order; (2) Appellant did not file or otherwise obtain a ruling on a Texas Rule of Civil Procedure 306a(5) motion regarding when her counsel received notice of that Adoption Order; and (3) the February 15, 2016 Dismissal Order granting DFPS’s motion to dismiss Appellant’s Modification/Adoption Petition was void because it was entered after the trial court’s plenary power had expired and did not extend the time to file the notice of appeal.
Appellant responded that the Adoption Order was an interlocutory order because the "Mother Hubbard" clause did not make it a final order and because it did not resolve her claims. Appellant contends that the Dismissal Order was the final order for purposes of appeal, making her notice of appeal timely. Appellant also argues that, even if the Adoption Order was a final order, either the Intervenors' Motion to Clarify or her notice of appeal extended the trial court’s plenary power to make her notice of appeal timely. Finally, Appellant asserts that the appellees' extrinsic fraud or the lack of due process resulting from her not receiving notice of the Adoption Order bars dismissal and requires a merits review.
1. Standard of Review and Applicable Law
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). Generally, "a notice of appeal must be filed within thirty days after the judgment is signed." TEX. R. APP. P. 26.1(a). The time to file a notice of appeal is extended to ninety days after the signing if any party files a timely motion for new trial, motion to modify the judgment, motion to reinstate, or a request for findings of fact and conclusions of law that is either required by the Rules of Civil Procedure or properly considerable by the appellate court. TEX. R. APP. P. 26.1(a)(1-4).
We are authorized by statute to consider an appeal from a "final order" rendered under Title 5 of the Family Code. See TEX. FAM. CODE ANN. § 109.002(b) (West 2017); see, e.g. , Brejon v. Johnson , 314 S.W.3d 26, 33 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Generally, appellate courts have jurisdiction only over appeals from final judgments. See Lehmann , 39 S.W.3d at 195 ; N.E. Indep. Sch. Dist. v. Aldridge , 400 S.W.2d 893, 895 (Tex. 1966). To be final, a judgment must dispose of all issues and parties in a case. Aldridge , 400 S.W.2d at 895.
"In 2007, the Texas Legislature repealed Texas Family Code Section 263.401(d) in its entirety, which had specifically defined what constituted a ‘final order’ for purposes of cases where the Department of Family and Protective Services is a party." In the Interest of J.D. , 304 S.W.3d 522, 525 (Tex. App.—Waco 2009, no pet.) (citations omitted). "Prior to the repeal, it was possible to have a final order for purposes of appeal without disposing of all parties and all issues." Id. (citation omitted). "Without this definition of what constitutes a final order, the standards enunciated in Lehmann and its progeny for what constitutes a ‘final order’ for purposes of appeal therefore govern our determination in this case." Id. at 525-26.
"Finality of a judgment can no longer be determined solely by the existence of a ‘Mother Hubbard’ clause, which includes the language ‘all relief not expressly granted herein is denied,’ especially when a judgment is rendered without a conventional trial on the merits." Id. at 524 (citing Lehmann , 39 S.W.3d at 203–04 ). "In cases where there is no conventional trial on the merits, a judgment is final for purposes of appeal only if it either actually disposes of all claims and parties before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment." Id. (citing Lehmann , 39 S.W.3d at 204 ). "If other claims remain in the case, ‘an order determining the last claim is final." Id. (citing Lehmann , 39 S.W.3d at 200 ). "Whether an order is a final judgment for purposes of appeal must be determined from its language and the record in the case." Id. (citing Lehmann , 39 S.W.3d at 204 ).
2. Analysis
Here, the December 17, 2015 Adoption Order granted the Intervenors' Intervention/Adoption Petition, but it contained a Mother Hubbard clause, stating that "IT IS ORDERED that all relief requested in this case and not expressly granted is denied." However, as noted above, finality of a judgment cannot be determined solely by having a Mother Hubbard clause. See Lehmann , 39 S.W.3d at 203–04. Instead, we look to the language of the order and the record in the case to determine finality. See id. at 204.
The Adoption Order did not refer to Appellant’s Modification/Adoption Petition, it did not contain a signature line for Appellant’s counsel and, because it also instructed the trial clerk to seal the file, it was not served on Appellant. Appellant claims that she did not receive notice of the hearing, which was not recorded. All of these record indicators do not favor finality of the Adoption Order. See, e.g. , In the Interest of J.D. , 304 S.W.3d at 527 (holding that order in SAPCR was not final because "purposeful exclusion of the petition in intervention from the order strongly disfavors finality"). Instead, because the Adoption Order addressed only the Intervenors' Intervention/Adoption Petition, and did not explicitly indicate that it was disposing of all other parties and claims, such as Appellant’s Modification/Adoption Petition, the Adoption Order was not a final, appealable order. See Lehmann , 39 S.W.3d at 204 ; Ross v. Linebarger, Goggan, Blair & Sampson, L.L.P. , 333 S.W.3d 736, 741 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Lehmann , 39 S.W.3d at 206 ).
Furthermore, the May 3, 2016 order denying Appellant’s Motion for New Trial was not a separately appealable order. See Fletcher v. Ahrabi , No. 01-12-00794-CV, 2012 WL 6082915, at *1 (Tex. App.—Houston [1st Dist.] Dec. 6, 2012, no pet.) (mem. op.) ("An order denying a motion for new trial is not independently appealable.") (citation omitted). But the February 15, 2016 Dismissal Order resolved the remaining party’s claims—Appellant’s Modification/Adoption Petition—thus making the Dismissal Order the final, appealable order, and the interlocutory Adoption Order merged into it. See Lehmann , 39 S.W.3d at 200 (stating that "if a court has dismissed all of the claims in a case but one, an order determining the last claim is final."); H.B. Zachry Co. v. Thibodeaux , 364 S.W.2d 192, 193 (Tex. 1963) (holding that prior interlocutory orders merge into subsequent order disposing of remaining parties and issues, creating final and appealable judgment).
Accordingly, we conclude that Appellant’s March 15, 2016 notice of appeal of the February 15, 2016 Dismissal Order, which was the final order, was timely. Thus, DFPS’s and Intervenors' motions to dismiss as untimely are denied.
B. Modification
Appellant’s brief contends that the trial court erred in dismissing her Modification/Adoption Petition for lack of an affidavit because she had filed an amended Modification/Adoption Petition with an affidavit the morning of the December 8, 2015 hearing. In any event, she argues, among other things, that she was not required to file an affidavit with an amended Modification/Adoption Petition under Family Code Section 156.102.
DFPS’s brief responds, among other things, that after DFPS had moved to dismiss because Appellant’s Modification/Adoption Petition had asserted standing only to adopt, but not to file a conservatorship action, and did not contain the required affidavit, the trial court had denied the modification on the record and Appellant had not shown reversible harm. The Intervenors' brief responds, among other things, that the trial court orally denied, not dismissed, Appellant’s modification petition, that DFPS withheld consent to Appellant’s petition to adopt B.L.R., and there was good cause for DFPS to withhold consent.
1. Standard of Review and Applicable Law
The trial court’s modification of conservatorship terms is reviewed under an abuse-of-discretion standard. See Trammell v. Trammell , 485 S.W.3d 571, 575 (Tex. App.—Houston [1st Dist.] 2016, no pet.). The test is whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. See id. The reviewing court must review the evidence in the light most favorable to the trial court’s actions and indulge every legal presumption in favor of the order. Id. There is no abuse of discretion if some probative and substantive evidence supports the order. Id.
In addition to the prerequisites that are not at issue here, such as which orders are subject to modification under Texas Family Code Section 156.001, and who can file a suit for modification under Section 156.002, the section applicable here is Section 156.102, entitled, "Modification of Exclusive Right to Determine Primary Residence of Child Within One Year of Order." Section 156.102 requires, in pertinent part, as follows:
(a) If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of
the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).
(b) The affidavit must contain, along with supporting facts, at least one of the following allegations:
(1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or
(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.
(c) The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing.
TEX. FAM. CODE ANN. § 156.102 (West 2017).
2. Analysis
Here, Appellant’s November 4, 2014 Modification/Adoption Petition was filed within one year of the July 31, 2014 termination decree it sought to modify, bringing it under Section 156.102(a), but Appellant did not attach the required affidavit. She also did not assert standing to file a conservatorship action. See TEX. FAM. CODE ANN. §§ 102.003(a)(9), 102.005(4) (West 2017). After DFPS’s motion to dismiss, Appellant’s first amended Modification/Adoption Petition was filed on November 9, 2015, but she also did not attach the required affidavit or assert conservatorship standing in that petition.
Although Appellant filed an affidavit with her second amended Modification/Adoption Petition, it was filed only about six hours before the December 8, 2015 hearing. Even assuming arguendo that the trial court reviewed Appellant’s affidavit before the hearing, this affidavit could not support the only potential allegation, under Section 156.102(b)(1), by containing "supporting facts" that the child’s "present environment may endanger the child’s physical health or significantly impair the child’s emotional development." TEX. FAM. CODE ANN. § 156.102(b)(1).
The only allegations in Appellant’s affidavit that were based on her personal knowledge of supporting facts were not about B.L.R.’s "present environment," but instead were from the previous environment—the period when B.L.R. was in her foster care from March 2014 until September 22, 2014, when he was taken by DFPS to respite care before being moved to the Intervenors in November 2014. Appellant’s affidavit made further allegations that were based on "many conversations with the new foster parents," the Intervenors, that B.L.R.’s emotional development was in severe danger of being impaired because he was moved from his half-sister. However, these allegations were not based on Appellant’s personal knowledge of "supporting facts" that B.L.R.’s "present environment" with the Intervenors "may endanger the child’s physical health or significantly impair the child’s emotional development," as required by Section 156.102(b)(1). Thus, without "facts adequate to support an allegation listed in Subsection (b)" in the affidavit, the trial court was required to "deny the relief sought and refuse to schedule a hearing for modification." TEX. FAM. CODE ANN. § 156.102(c).
On the contrary, the trial court heard testimony about B.L.R.’s present environment. Erica Lerma, the CPS caseworker for B.L.R., testified that B.L.R. had been with the Intervenors as foster parents since November 14, 2014, and as an adoptive placement since January 2015, that he had bonded well with the Intervenors and their children, and that CPS was consenting to their adoption petition because it was in the best interest of B.L.R.
Accordingly, the trial court was required to deny Appellant’s Modification/Adoption Petition without a hearing on modification because Appellant’s affidavit did not allege adequate "supporting facts" about how B.L.R.’s "present environment may endanger the child’s physical health or significantly impair the child’s emotional development." TEX. FAM. CODE ANN. § 156.102(b)(1), (c). Therefore, the trial court did not abuse its discretion in denying Appellant’s Modification/Adoption Petition because some probative and substantive evidence supported the Dismissal Order. See Trammell , 485 S.W.3d at 575.
We overrule Appellant’s first issue.
C. Adoption
Appellant contends that the trial court erred in granting the Intervenors' Intervention/Adoption Petition. Appellant asserts that, among other things, her Modification/Adoption Petition in Harris County, her intervention in Intervenors' adoption petition in Williamson County, and the Intervenors' Intervention/Adoption Petition in Harris County were all inextricably intertwined such that the trial court’s dismissal of Appellant’s Modification/Adoption Petition required the dismissal of Intervenors' Intervention/Adoption Petition as well. Appellant further asserts that she was entitled to notice of the December 17, 2015 adoption hearing and the lack of notice violated her due process rights.
DFPS responds that the duty of notice is not created by inextricably intertwined claims, that the relationship between B.L.R. and his half-sister did not bestow notice rights on Appellant, that the Intervenors were not required to serve Appellant notice of their adoption hearing, as she was someone who merely asserted a right to B.L.R.; thus, there was no reversible error in the Adoption Order. The Intervenors respond that Appellant was not denied due process because she was not entitled to contest the Intervenors' adoption, just the DFPS’s withholding of consent for her to adopt, that Appellant lacked standing to appear at the Intervenors' adoption hearing, and that the court was required to grant the Intervenors' Intervention/Adoption Petition.
1. Standard of Review and Applicable Law
The proper standard of review in reviewing adoption orders is abuse of discretion. See In the Interest of W.E.R. , 669 S.W.2d 716, 716 (Tex. 1984) ("The granting or denial of an adoption is based on a determination of the best interest of the child. The decision as to whether or not to grant an adoption is within the discretion of the trial court, which may not be set aside except for abuse."); Celestine v. Dep't of Fam. & Prot. Servs. , 321 S.W.3d 222, 233 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A trial court does not abuse its discretion if some evidence of a substantive and probative character supports the trial court’s decision. In re Gonzalez , 993 S.W.2d 147, 155 (Tex. App.—San Antonio 1999, no pet.) ; Celestine , 321 S.W.3d at 233.
If the trial court does not issue findings of fact and conclusions of law, the judgment of the trial court implies all necessary fact findings in support of the judgment, and we will affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the evidence. See Celestine , 321 S.W.3d at 232 (citing In the Interest of W.E.R. , 669 S.W.2d at 717 ). "In determining whether some evidence supports the judgment and the implied findings of fact, it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature." Id. (internal quotation marks and citations omitted).
In addition to the prerequisites not applicable here, of who may adopt and be adopted under Texas Family Code Section 162.001, and prerequisites to an adoption petition under Section 162.002, the section applicable here is consent required under Section 162.010, which provides, in pertinent part, as follows:
(a) Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed. The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause. A hearing on the issue of consent shall be conducted by the court without a jury.
TEX. FAM. CODE ANN. § 162.010(a) (West 2017).
2. Analysis
Here, it was undisputed that, because Appellant was not the managing conservator of B.L.R., she required the consent of DFPS, which did not give it to her, to seek adoption. See TEX. FAM. CODE ANN. § 162.010(a). Under the consent section of her Modification/Adoption Petition, Appellant stated that the written consent of the managing conservator will be filed. Similarly, for her second amended Modification/Adoption Petition, filed on December 8, 2015, under the consent section, Appellant stated that the written consent of DFPS, the managing conservator, will be filed with the court, but should that consent be withheld, she requested that the court find that action unreasonable and order DFPS to consent, or to allow the adoption without it.
At the December 8, 2015 hearing, DFPS stated that it was not consenting to Appellant’s adoption of B.L.R. because he had suffered a severe burn in Appellant’s foster care, he had had no substantial contact with Appellant for over twelve months, and he was in a successful adoptive placement with the Intervenors. Thus, there was some evidence to support the trial court’s implied fact finding that it was not unreasonable for DFPS to withhold its consent for Appellant’s adoption of B.L.R. In contrast, DFPS also presented testimony by Erica Lerma, the CPS caseworker for B.L.R., that he had bonded well with the Intervenors, and that CPS was consenting to the Intervenors' Intervention/Adoption Petition because it was in the best interest of B.L.R. Thus, there was also some evidence to support the trial court’s implied fact finding that it was reasonable for DFPS to consent to the Intervenors' Intervention/Adoption Petition for the Adoption Order. We hold that the trial court did not abuse its discretion in signing the Adoption Order and the Dismissal Order denying Appellant’s Modification/Adoption Petition. See Celestine , 321 S.W.3d at 232.
We overrule Appellant’s second issue. Conclusion
Accordingly, we deny the appellees' motions to dismiss the appeal, but we affirm the trial court’s February 15, 2016 Dismissal Order denying the Modification/Adoption Petition.