in the Interest of M.A.N.M., a Child

DISSENTING OPINION No. 04-01-00295-CV IN THE INTEREST OF M.A.N.M., a Child From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2000-PA-00442 Honorable David Peeples, Judge Presiding Opinion by: Karen Angelini, Justice Dissenting Opinion by: Catherine Stone, Justice Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: February 6, 2002 The natural rights existing between a parent and child are constitutionally-protected interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). These natural rights are "essential basic civil right[s] of man." Stanley v. Illinois, 405 U.S. 645, 651 (1972). In recognition of the importance of the rights between parents and their children, courts presume that retention of the parent-child relationship is in the best interest of the child. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). Consequently, involuntary termination of parental rights is a "drastic remedy" of such weight and gravity that due process requires termination be justified by clear and convincing evidence. See In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). These statements are not mere form language to be included in appellate decisions--they are statements of principles of great constitutional and human dimension. In my opinion, these principles have not been honored in this case. No doubt motivated by the best of intentions, the actions of Child Protective Services set in motion the instant litigation, which proceeded with minimum regard for the constitutionally-protected parental rights of John Ramirez, the biological father of M.A.N.M. The trial court compounded the disregard of constitutional safeguards by rendering a judgment based on evidence that is, at best, perfunctory. Accordingly, I respectfully dissent. Grounds for Termination To terminate John Ramirez's parental rights, the trial court was required to find by clear and convincing evidence that Ramirez engaged in offensive conduct as set forth in Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2002). Although Medina sought termination on the sole basis that Ramirez failed to legitimate the child within a one year period, this basis was not proven at trial, nor did the trial court make a finding on this element. Rather, Medina produced evidence regarding Ramirez's failure to support the child for a one year period and the trial court rendered its judgment of termination on this statutory ground. When issues not raised by the pleadings are tried by implied consent of the parties, they are treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67. Because Ramirez failed to object to the disparity between the pleadings and the proof, we may conclude that the issue of non-support was tried by consent. See Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993) (determining issues had been tried by consent because both sides advanced their positions at trial). Although he was never judicially ordered to provide child support, Ramirez gave the child's mother money during her pregnancy and offered to provide support to Medina if he could visit with his daughter. It seems disingenuous, at best, to rebuff a party's claim of paternity, deny him visitation until paternity is legally established, yet use the absence of support as grounds for termination. Moreover, the only evidence the trial court could have relied upon to determine Ramirez had the ability to pay, but did not, was Ramirez's admission that he had spent money on drugs. There was no testimony as to the source of the money for drugs nor any indication of what other basic necessities Ramirez may have foregone to purchase drugs. The court simply assumed that Ramirez could have supported the child instead of buying drugs. Without evidence of Ramirez's educational level, employment history, earning potential, actual income, or financial needs and expenses, I do not agree that Medina met his burden to show Ramirez had the ability to pay. The issue is further complicated by other factors relating to the question of where and to whom Ramirez was to provide financial support. Ramirez knew that his daughter was not with her mother, and for a certain period of time he did not even know where the child was. His request for information and assistance from Child Protective Services was rejected. His request for assistance from Legal Aid was rejected. Finally, he sought assistance from the Attorney General's office, and after a delay of more than six months, he was told that the Attorney General's office could not help him. The record before us simply does not contain evidence sufficient to produce a firm belief or conviction that Ramirez failed to support M.A.N.M. "in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition." See Tex. Fam. Code Ann. § 161.001 (F) (Vernon Supp. 2002). Best Interest of the Child Even if we assume the evidence is legally and factually sufficient to support termination on the basis of non-support, I do not believe there is sufficient evidence that termination is in the best interest of the child. Indeed, the evidence is to the contrary. Termination of parental rights cannot be sustained unless such a drastic action is in the best interest of the child. In re G.M., 596 S.W.2d at 847. Although the majority correctly recites this standard, I do not believe it has correctly reviewed the evidence in light of the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (setting forth various factors to be considered by trial court in determining whether termination of parental rights serves best interest of child). An examination of these factors reveals that severing the parental rights of Ramirez and his daughter is not in her best interest. Emotional and Physical Needs of Child Courts presume that it is emotionally best for a child to retain ties with the child's biological parents. Wiley, 543 S.W.2d at 352. Ramirez professed his desire to maintain a relationship with his daughter. He expressed his willingness to assume parental responsibilities, and his conduct since the child's birth confirmed his expressed desire. Ramirez has the support of his family in this endeavor. His mother expressed her willingness to help, and she provides a stable home that all agreed was not a threat to the child. Parental Abilities Parent Seeking Custody Ramirez, like Medina, is admittedly young, but because he has had limited access to his daughter, he is less experienced in parenting than Medina. Nonetheless, the reports from Kids Exchange regarding Ramirez's supervised visitation indicate appropriate interaction and bonding between Ramirez and his daughter. Programs Available to Assist the Parent As noted, evidence presented at trial indicates that Ramirez's mother is willing to assist her son in his parenting of M.A.N.M. There is no evidence that Ramirez planned to take any formal parenting classes, but he did acknowledge a prior drug problem and was actively participating in Narcotics Anonymous. Plans for the Child and Stability of the Home Ramirez has extended family support in his effort to parent his daughter. He also has a stable non-threatening home to share with her. Ramirez stated his desire to ultimately seek full custody of his daughter, and this factor clearly weighed heavily in the trial court's determination. However, custody is not at issue in this termination proceeding. Acts or Omissions Indicating Parent-Child Relationship is Not Proper The only acts or omissions that can be referred to are the lack of support and the failure to complete the legitimization process within a year. But these omissions cannot be viewed in a vacuum. Indeed, the final Holley factor requires that these omissions be judged in light of any justifying excuse. Excuse for the Acts or Omissions At this point, M.A.N.M. has lived with the Medina family for three years - they are the only family she has known. Any caring person would hesitate to disrupt that relationship. Yet Ramirez's lack of participation is not for lack of trying. He began his quest to have contact with his daughter one month after her birth. Every governmental agency that he contacted essentially closed the door in his face. When suit was filed to terminate Ramirez's parental rights, he was cited by publication despite his having left a phone number with Child Protective Services; Ramirez discovered the pending suit by accident. Ramirez made repeated attempts to establish his role as a father to his child, yet each attempt was rebuffed. In addition, while the caseworker ignored Ramirez's overtures, she encouraged Medina to take legal action to ensure the child would remain in his home. Even when the child's mother expressed her desire for M.A.N.M. to live with her birth father instead of Medina, the caseworker chose not to respond after she missed an appointment to discuss the matter. Ramirez's meetings with attorneys at Legal Aid and the Attorney General's office were also fruitless. To now rely on the lapse of time since the child's birth and the possibility of disruption of the child's routine as grounds for terminating Ramirez's parental rights is, in my view, nothing short of unconscionable. I am also concerned because I believe that in this case the "best interest of the child" has become the functional equivalent of the "better circumstances for the child." The El Paso Court of Appeals has cogently expressed the difficulties inherent in applying the best interest standard: [T]he nuances and complexity of human situations make the development and application of the axiom--best interests of the child--incredibly difficult. It is all the more difficult because, unlike other legal standards which rely on the basic assumption that reasonable people applying the standard can come to an agreement, it is not always clear that reasonable people can agree on what is best for a child. Our only hope is to try to follow determinable standards that avoid any more chaos and pain. * * * * * * * * * * While [a parent's] bad acts or omissions might reasonably suggest that a child would be better off with a new family, the evidence may still be insufficient to satisfy the clear and convincing standard. The best interest standard does not permit parental termination merely because a child might be better off living elsewhere. Otherwise, the termination statute might be used for a massive reallocation of children to better and more prosperous parents. In re C.H., 25 S.W.3d 38, 52 -53 (Tex. App.--El Paso 2000, pet. granted). The tragedy here for both father and daughter is that if Ramirez's attempts to be the child's father had not been thwarted--had he instead been helped to connect with his daughter--none of this would have transpired. Medina's counsel argued, and the trial court evidently agreed, that if Ramirez's parental rights were not terminated, Medina would incur further court battles and legal expenses. It is evident from the record that the most significant factor guiding the trial court's decision was the length of time M.A.N.M. had been living with Medina and his family, and the high price the child would pay if she were removed from that home. Ramirez's expressed desire to obtain sole custody of his daughter undoubtedly strengthened the trial court's resolve. Removal from Medina's home, however, is not at issue. Less drastic means were available to ensure continuity for the child without terminating Ramirez's parental rights and severing the budding relationship between father and daughter. The trial court could have awarded permanent managing conservatorship to Medina while granting possessory conservatorship to Ramirez, or could have arranged other means of visitation. The child's need for continuity of care and caretaker would have been met, and she could also have enjoyed a relationship with her biological father. The solution to this cauldron of emotionally-charged issues need not be all or nothing. Indeed, the ad litem appointed to represent the child and protect her best interest offered a solution - let this child know the joys of two loving fathers. This solution, fully supported by the law and the evidence, was erroneously rejected by the trial court. Accordingly, I dissent. Catherine Stone, Justice PUBLISH