in the Interest of S.M.L., a Child

NO. 07-09-0045-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C OCTOBER 27, 2009 ______________________________  IN THE INTEREST OF S.M.L., A CHILD _________________________________ FROM THE 110th DISTRICT COURT OF FLOYD COUNTY; NO. 9918; HONORABLE WILLIAM P. SMITH, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION           S.M.L., the child the subject of this suit, is a male child born December 14, 2006. Appellants, S.M.L.’s maternal grandparents, appeal an order issued by the Honorable William P. Smith of the 110th District Court, affirming an order issued by Associate Judge Phil Vanderpool terminating the parental rights of S.M.L.’s parents and appointing the Department of Family and Protective Services (hereinafter the “Department”) as S.M.L.’s permanent sole managing conservator. In a single issue, Appellants assert the trial court erred by either failing to appoint them as S.M.L.’s conservators or by failing to grant them possession or access to S.M.L. We affirm. Background           In March 2007, the Department placed S.M.L. in a foster home due to an abusive home environment and filed an original petition for conservatorship and termination of the parental rights of S.M.L.’s parents. Attached to the Department’s petition was an affidavit by a Department caseworker, who sought an earlier emergency hearing and protective order, describing extensive acts of domestic violence between family members resulting in injuries to S.M.L. Following an adversary hearing, the associate judge issued an order appointing the Department as S.M.L.’s temporary managing conservator.           On January 10, 2008, the associate judge issued an order authorizing placement of S.M.L. with Appellants. The order further provided that the Department would continue serving as S.M.L.’s temporary sole managing conservator. The order also prohibited any access, communication, or contact between S.M.L. and his parents, except under the direct supervision and monitoring of the Department.           On January 31, a final hearing was held on the Department’s petition. All parties, including an attorney and guardian ad litem for the child, appeared and announced ready. At that hearing, the Department presented irrevocable affidavits executed by S.M.L.’s parents voluntarily relinquishing their parental rights and consenting to the appointment of the Department as S.M.L.’s sole managing conservator. Jametra Hill, a Department caseworker, recommended the affidavits be accepted, the parental rights be terminated, and that S.M.L. remain placed with his maternal grandparents under the supervision of the Department. Hill also indicated the Department would oversee the adoption process applicable to Appellants. S.M.L.’s guardian ad litem agreed that the parental rights of S.M.L.’s parents should be terminated and, in the event S.M.L.’s maternal grandparents were not the ultimate adoptive parents, that S.M.L. be placed for adoption by a non-relative. The associate judge then found the evidence sufficient, terminated the parental rights of S.M.L.’s parents, and appointed the Department permanent sole managing conservator of S.M.L. An order reflecting the associate judge’s judgment was signed on March 5, 2008, and filed on March 10, 2008. Pursuant to that order, the Department continued S.M.L.’s placement with Appellants.           Subsequent to the associate judge’s oral pronouncement of judgment, but prior to the entry of a written order, a Department employee observed Appellants permitting contact between S.M.L. and his parents in violation of the order of January 10. Thereafter, at the discretion of the Department, S.M.L. was removed from Appellants’ residence and, on February 25, he was placed in a second foster home studied and approved by the Department for adoption.           Two days after entry of the associate judge’s written order of termination, on March 7, 2008, Appellants filed a petition to intervene in the Department’s termination suit. The petition sought to have Appellants appointed as S.M.L.’s joint managing conservators, with the exclusive right to designate the primary residence of the child, in addition to an order granting Appellants possession of or access to the child.           On July 22, Appellants filed a first amended petition in intervention and, in addition to previous remedies, requested adoption. On August 6, 2008, the associate judge issued an order granting the Department’s motion to strike Appellants’ original petition in intervention filed March 7. Thereafter, Appellants sought a de novo hearing before the referring court.            On August 29, 2008, S.M.L.’s new foster parents, with the Department’s consent, filed their original petition to adopt S.M.L. in the 237th District Court in Lubbock County. They also sought to intervene in the Department’s suit to terminate the parental rights of S.M.L.’s parents filed in Floyd County.           In September, the associate judge reviewed and approved a placement report describing a permanency plan calling for S.M.L.’s adoption while continuing all previous orders without modification. On October 14, Appellants filed a second amended original petition in intervention in the Floyd County proceeding. On December 3, 2008, the trial court “reheard” the Department’s termination suit. With all parties present, the trial court implicitly overruled pending objections to jurisdiction and standing, and proceeded to hear the merits of the case. In an order issued January 5, 2009, the trial court affirmed the associate judge’s January 31, 2008 ruling. On January 26, 2009, Appellants filed their notice of appeal contesting that order. Standard of Review           A trial court has broad discretion to determine issues related to conservatorship, visitation, and possession, see In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and the decision of the court may be reversed only if it appears that the court abused its discretion in light of the record as a whole. Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). See In Interest of Doe, 917 S.W.2d 139, 141 (Tex.App.–Amarillo 1996, writ denied). Furthermore, we may not reverse the trial court’s judgment simply because we might disagree with the outcome. Rather, before a decision of the trial court may be reversed we must conclude that the decision lacked basis in fact or law or involved a misapplication of fact to law. In re C.R.T., 61 S.W.3d 62, 65 (Tex.App.–Amarillo 2001, pet. denied).           When determining issues related to conservatorship or possession of and access to the child, the best interest of the child is the primary consideration. Tex. Fam. Code Ann. § 153.002 (Vernon 2008); See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). In determining the best interest of the child, the court may consider several non-exclusive factors: (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 parenting abilities of the parties seeking conservatorship; (5) the programs available to assist those persons; (6) the plans for the child by the parties seeking conservatorship; and (7) the stability of the home or proposed placement. Holley v. Adams, 544 S.W.2d 367, 372 (1976). Analysis           S.M.L. was originally removed from the custody of his parents in January 2007, because the Department had serious concerns about his safety and well-being while in their presence. At that time, the child was placed in the home of Appellants, subject to a written safety plan stating that Appellants would not allow the parents to have any contact with the child unless supervised by the Department. In March 2007, Appellants allowed the parents to have unsupervised possession of the child. During that period of unsupervised possession, the mother was arrested for domestic violence against the father and the child was once again removed by the Department.           In September 2007, following the completion of a home study and anger management classes, the child was again placed in Appellants’ custody. Again, Appellants signed a safety plan agreeing to not allow the parents to have any contact with the child unless supervised by the Department. In January 2008, by order of the court, Appellants were specifically prohibited from allowing any “access, communication, or contact” between S.M.L. and his parents, except under the direct supervision and monitoring of the Department.           After the parents stopped participating in services offered by the Department, the decision was made to seek termination of their parental rights. Following the execution of voluntary relinquishments of paternity, the associate judge terminated the parental rights of the mother and father and appointed the Department as the child’s sole managing conservator. At the time of that proceeding, the child was in Appellants’ custody and the Department’s plan was for them to adopt the child. A short time later, Appellants were observed allowing the parents unsupervised contact. This unauthorized contact prompted the Department to again remove the child from Appellants’ home and place him in new foster care.           In addition to hearing testimony concerning the child’s care and supervision while in the custody of Appellants, the trial court also heard testimony concerning the child’s new placement. A case worker testified that the child had bonded with the new placement parents, that their care and supervision was appropriate, that the child referred to them as “Momma” and “Daddy,” that they had initiated adoption proceedings, and that it was in the child’s best interest that he remain in the new placement.           Given the instances of Appellants’ failure to follow the safety plans adopted for the child, their inability to recognize the danger presented to the child by parental contact, as well as the prospective plans for the child, we cannot say that the trial court’s decision to not appoint Appellants as managing conservators or to order possession or access was arbitrary, unreasonable, or without reference to any guiding rules or principles. Accordingly, Appellants’ sole issue is overruled.           CONCLUSION           The trial court’s judgment is affirmed.                                                                             Patrick A. Pirtle                                                                                  Justice     >  ______________________________   TIMOTHY RAY WILLIAMS, APPELLANT  V.  THE STATE OF TEXAS, APPELLEE   _________________________________  FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;  NOS. 18,246-B, 11,592-B, and 18,325-B; HONORABLE JOHN B. BOARD, JUDGE  _______________________________  Before CAMPBELL and HANCOCK and PIRTLE, JJ. OPINION ON ABATEMENT On February 25, 2010, in cause numbers 11,592-B (07-10-0100-CV), 18,246-B (07-10-0091-CV), and 18,325-B (07-10-0101-CV), the trial court signed and entered a document entitled Order to Withdraw Inmate Funds (Pursuant to TX. GOV’T. Code, Sec. 501.014(e)).[1]    By the withdrawal notifications entered in each case, the trial court directed the Texas Department of Criminal Justice Institutional Division to withhold the amounts of $671.50 (Cause No. 11,592-B), $13,791.50 (Cause No. 18,246-B), and $1,363.43 (Cause No. 18,325-B) from Appellant's inmate trust account. While each withdrawal notification contained the statement that "court costs, fines, and fees have been incurred as represented in the certified Bill of Costs/Judgment attached hereto," none contained an attachment of any kind. Furthermore, while the judgment entered in each case provides that the "State of Texas do have and recover of the said [Appellant] all costs in this proceeding incurred . . .," the summary portion of each judgment leaves costs blank.            In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to § 501.014(e) is a civil matter[2] akin to a garnishment action or an action to obtain a turnover order. Harrell, 286 S.W.3d at 317-19. In determining whether Harrell was accorded constitutional due process in that proceeding, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had "already received some measure of due process." Harrell, 286 S.W.3d at 320.            The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. The Court found that private interest to be easily ascertainable--"the amount identified in a prior court document", i.e., "the costs assessed when the convicting court sentenced him." Harrell, 286 S.W.3d at 320. Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document. See Tex. Gov't Code Ann. § 501.014(e)(1)-(6) (Vernon Supp. 2009). The Court noted that "Harrell was . . . notified of the costs assessed when the convicting court sentenced him" and he was free to contest them at the time they were assessed. Harrell, 286 S.W.3d at 320. However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal notification varied from the amount in the underlying judgment or those instances where there were clerical or other errors. Id. In assessing the final factor, the Government's interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to "full-blown" statutory garnishment requirements. In the Court's opinion, such a drawn-out procedure might subvert the Legislature's goal of efficient cost-collection. Id. Harrell had been convicted of drug charges in 1997 and 2003. In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel. Harrell was provided with copies of the withdrawal notifications. He then moved to rescind the withdrawal notifications alleging denial of due process. His motion was denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal notification. See Harrell v. State, Nos. 07-06-0469-CR and 07-06-0470-CR, 2007 WL 2301350 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).            In reversing this Court and rendering judgment affirming the trial court's order denying Harrell's motion to rescind, the Supreme Court held that due process entitles an inmate to receive notice[3] and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn. Harrell, 286 S.W.3d at 321. It concluded that because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard[4] (the motion to rescind), he had received all that due process required. Id. The Court added, "[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding." Id.             On the limited record before this Court, we are unable to determine if Appellant has been given all that due process requires. Specifically, because we do not have a copy of the underlying court order, we are unable to determine either the factual basis for the withdrawal notification, or whether Appellant has been afforded an adequate opportunity "to compare the amounts assessed by the trial court [in the underlying criminal proceedings] to the amount[s] withdrawn and alert the court of any alleged errors." Id. Because the trial court has not entered an appealable order either granting or denying a motion to confirm, modify, correct, or rescind the prior withdrawal notification, we find Appellant's notice of appeal to be premature.            Accordingly, this Court sua sponte abates this appeal for 180 days from the date of this order to allow Appellant time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court order; (2) compare the underlying court order to the withdrawal notification; (3) file an appropriate motion to modify, correct, or rescind the withdrawal notification; (4) present that motion to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court a final appealable order addressing that motion. See Tex. R. App. P. 27.2. See also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.). All appellate timetables will begin to run from the date a final, appealable order is signed.                       It is so ordered.                                                                                     Per Curiam [1]This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (Vernon Supp. 2009), describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court." See id. at § 501.014(e)(1)-(6). See also Harrell v. State, 286 S.W.3d 315, 316, n.1 (Tex. 2009). This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008). Nisi means "unless," so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to § 501.014(e), triggers a trust fund withdrawal, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with the underlying court order or judgment ordering the payment of a sum falling within at least one of the six priority categories listed in the statute.  [2]See Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that orders directing withdrawal of funds from inmate trust accounts is not a criminal matter).  [3]In assessing the risk of erroneous deprivation of property, the Supreme Court in Harrell considered the risk to be "modest" because notice under the statute is "based on an amount identified in a prior court document." Harrell, 286 S.W.3d at 320 (emphasis added). The Court went on to comment that the risk would be minimized if the trial court included a copy of the underlying order or judgment that assessed costs when it issues a withdrawal notification. We wholeheartedly adopt the Supreme Court's recommendation in this regard. We express no opinion as to whether a clerk issued bill of costs or a statement in an underlying court document which merely assesses "costs of court" against the defendant without stating the basis or amount of those costs constitutes adequate notice for purposes of due process. We further note that the mere assessment of attorney fees does not make them collectable through this process. Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees only if the court makes a fact-specific determination that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009). See also Mayer v. State, ___ S.W.3d ___, PD-0069-09, 2010 WL 1050331, at *4 (Tex.Crim.App. March 24, 2010).  [4]While the court of appeals's opinion is silent on whether a hearing was held on Harrell's motion to rescind, Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 WL 2301350 (Tex.App.--Amarillo, Aug. 13, 2007), rev’d, 286 S.W.3d 315 (Tex. 2008), the trial court did enter a specific order denying his motion to rescind the withdrawal notification. We read the Supreme Court's opinion as assuming that, by this process, Harrell was given "an opportunity to be heard." Harrell, 286 S.W.3d at 321. Â