in the Interest of K.G.M. and W.F.M., Children

IN THE TENTH COURT OF APPEALS No. 10-04-00162-CV In the Interest of K.G.M. and W.F.M., Children From the 13th District Court Navarro County, Texas Trial Court No. 03-00-12094-CV O p i n i o n[1] Appellant appeals the termination of the parent-child relationship between Appellant and two of her children, K. G. M. and W. F. M. In two issues, Appellant contends that the evidence that she knowingly placed or knowingly allowed the children to remain in conditions or surroundings, or engaged in conduct or knowingly placed the children with persons who engaged in conduct, that endangered their well-being, and that termination was in the children’s best interest, was legally and factually insufficient. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002). Trial was before a jury, which made its findings by the concurrence of eleven members. Applying the standard of review for the legal sufficiency of the evidence established by the Texas Supreme Court in In the Interest of J.F.C., we have determined that the evidence is legally sufficient. See In re J.F.C., 96 S.W.3d 256 (Tex. 2002). Likewise, applying the standard of review for the factual sufficiency of the evidence established by the Texas Supreme Court in In the Interest of C.H., we have determined that the evidence was factually sufficient. See In re C.H., 89 S.W.3d 17 (Tex. 2002). We affirm. I. K. G. M. In Appellant’s first issue, she contends that the evidence was insufficient as to K. G. M. We will overrule Appellant’s issue. I. A. Endangerment. Appellant argues that there was no evidence that she endangered K. G. M. Appellee, the Department of Family and Protective Services, points primarily to the following evidence. Appellant had used heroin, cocaine, methamphetamines, and marijuana from the age of twelve until the time of trial. Appellant had not been able to complete the drug rehabilitation programs in which she had participated, including the one she had been in immediately before her felony community supervision was last revoked. Appellant used drugs to the degree that Appellant was not able to care for K. G. M. At the time of trial, Appellant was in prison for burglary. She had previously served two years for robbery. I. A. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury’s finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered K. G. M. See Tex. Fam. Code Ann. § 101.007 (Vernon 2002), § 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266. I. A. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered K. G. M. See Tex. Fam. Code Ann. §§ 101.007, 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25. I. B. Best Interest. Appellant argues that there was no evidence that termination was in K. G. M.’s best interest, except that Appellant concedes that her “drug and criminal history mitigate in favor of termination,” and that her “incarceration has led to instability.” Appellee points, too, primarily to the following evidence. Appellant had contacted K. G. M. only seven times in the seventeen months before trial. Appellant had no relatives who were willing or able to take K. G. M. K. G. M. was adoptable. I. B. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury’s finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and K. G. M. was in K. G. M.’s best interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266; Holley v. Adams, 544 S.W.2d 367, 371-73 (Tex. 1976). I. B. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review, we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and K. G. M. was in K. G. M.’s best interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25; Holley, 544 S.W.2d at 371-73. Accordingly, we overrule Appellant’s first issue. II. W. F. M. In Appellant’s second issue, she contends that the evidence was insufficient as to W. F. M. We will overrule Appellant’s issue. II. A. Endangerment. Appellant argues that there was no evidence that she endangered W. F. M. Appellee, the Department of Family and Protective Services, points primarily to the following evidence. Appellant had used heroin, cocaine, methamphetamines, and marijuana from the age of twelve until the time of trial. Appellant knew that she should not use drugs while pregnant, but could not help it. Appellant used cocaine and marijuana while pregnant with W. F. M. and one of her other children, not the subject of the suit, so that W. F. M. had cocaine and marijuana in his body at birth. W. F. M. had medical problems, including breathing problems, as a result of Appellant’s drug use during pregnancy. Appellant continued to smoke, although smoking was harmful to W. F. M.’s health. II. A. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury’s finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered W. F. M. See Tex. Fam. Code Ann. §§ 101.007, 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266. II. A. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that Appellant endangered W. F. M. See Tex. Fam. Code Ann. §§ 101.007, 161.001(1)(D)-(E); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25. II. B. Best Interest. Appellant argues that there was no evidence that termination was in W. F. M.’s best interest, except that Appellant concedes that her drug use during pregnancy “may be considered conduct which endangers the well-being of the child,” that her “drug and criminal history mitigate in favor of termination,” and that her “incarceration has led to instability.” Appellee points, too, primarily to the following evidence. Appellant had contacted W. F. M. only seven times in the seventeen months before trial. Appellant had no relatives who were willing or able to take W. F. M. W. F. M. was adoptable. II. B. 1. Legal Sufficiency. We have viewed this evidence in the light most favorable to the jury’s finding. Pursuant to J.F.C., we have assumed that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could have so resolved the facts. Under this standard of review we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and W. F. M. was in W. F. M.’s best interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-73. II. B. 2. Factual Sufficiency. Pursuant to C.H. and J.F.C., we have not assumed that the factfinder resolved disputed facts in favor of the finding, but have given due consideration to evidence that the jury could reasonably have found to be clear and convincing. Under this standard of review, we have determined that the jury could reasonably have formed a firm belief or conviction that termination of the parent-child relationship between Appellant and W. F. M. was in W. F. M.’s best interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(2); J.F.C., 96 S.W.3d at 266-67; C.H., 89 S.W.3d at 25; Holley, 544 S.W.2d at 371-73. Accordingly, we overrule Appellant’s second issue. Having overruled Appellant’s issues, we affirm the judgment. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance concurring) Affirmed Opinion delivered and filed July 27, 2005 [CV06] [1] There is an apparent conflict in Texas Rule of Appellate Procedure 47.4. See Tex. R. App. P. 47.4. Because the author of the Concurring Opinion has opposed the designation of this memorandum opinion as a memorandum opinion, it must be designated as an opinion. “An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation.” Id. The same rule, however, limits what opinions can be designated non-memorandum opinions: An opinion must be designated a memorandum opinion unless it does any of the following: (a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases; (b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas; (c) criticizes existing law; or (d) resolves an apparent conflict of authority. Id. This Opinion does not do any of those things, and thus “must” be designated a memorandum opinion. Id. We have, nevertheless, designated it as an opinion because the sentence of the rule regarding the opposition by the author of a concurrence or dissent is more specific, and less subject to interpretation, than the latter portion of the rule. See id. gin-bottom:0in;margin-left:.5in;margin-bottom:.0001pt;text-align:center'>DISTRICT CLERK’S MOTION TO CONTEST APPELLANT’S AFFIDAVIT OF INDIGENCE To the Honorable Judges of the Tenth Court of Appeals: Now Comes Karen C. Matkin, District Clerk, of McLennan County, Texas, Movant and files this Motion Contesting the Affidavit of Indigence filed by the Appellant in this cause, Michael Don Watkins and $1,937.00, and requests that this Honorable Court assess the costs due to the District Clerk of McLennan County for the record and would show the Court as follows: 1. Notice of Appeal was given in the above matter on December 18, 2006. On February 20, 2007 the Appellant filed with the Tenth Court of Appeals an affidavit of indigence requesting a free record. Notice was given to the District Clerk’s Office of an affidavit of indigence by letter dated February 27, 2007. 2. The District Clerk estimates that the cost of the record is $50.00. 3. Movant requests that the Court disallow Appellant’s affidavit of indigence for the following reasons: a. Appellant is not a Pauper and does not qualify under Tex. R. App. P. 20.1. for a free record. There are sufficient funds, assets or income available to Appellant to pay the costs of suit. b. Under the provisions of Tex. R. App. P. 20.1.(c)(1) an Appellant is required to file the affidavit of indigence at or before the filing of the notice of appeal in the trial court. Appellant failed to timely file the affidavit and filed the affidavit in an inappropriate location. 4. Movant asks the Court to assess costs against the Appellant and set forth a time by which the same must be paid or the appeal will be dismissed based on the record before it or in the alternative to set this matter for a hearing. Wherefore Premises Considered, Karen C. Matkin asks the Court to deny the affidavit of indigence based on the record before it or to set this matter for hearing and to assess costs against the Appellant and set forth a time by which the same must be paid or the appeal will be dismissed and for such other and further relief to which she may be entitled under law. Respectfully submitted, MCLENNAN COUNTY DISTRICT CLERK Karen C. Matkin Karen C. Matkin, District Clerk PO Box 2451 Waco, Texas 76703-2451 254-757-5057 Certificate of Service I certify that on March 12, 2007 a true and correct copy of the District Clerk’s Motion to Contest Appellant’s Affidavit of Indigence was served by certified mail to Michael Don Watkins PO Box 1010, Bastrop, Tx., 78602-1010 and by hand delivery to John W. Segrest, 219 N. 6th Street, Waco, Tx., 76701. Karen C. Matkin When I received the proposed order to sustain the contest to indigency, i.e., deny Watkins’s indigent status, I asked the basis upon which the Court was making this determination, and asked to see the proposed order again. I also noted my reason for questioning the recommendation as follows: The only evidence on the issue is the affidavit of indigence filed by the appellant. Because we must accept the affidavit as evidence on the merits because the party filing it is incarcerated, see TRAP 20.1(g), I would overrule the contest and allow affiant to proceed without the advance payment of costs. TRAP 20.1(h)(2). In response, I received the following question: “Is the below [explanation that you provided] what you want on the letter order?” To this question, I responded: “What I want is an answer to my question. What I wrote below is why I have the question. I am hoping you will point out something I have overlooked so I can join your recommendation.” In response I received the following: That is not coming. Neither Felipe nor I have to explain or justify our votes to you. Furthermore, I do not want to see any response I might make in a concurring or dissenting opinion. You are as capable as I (maybe more) of evaluating the merits of this motion. Accordingly, I proceeded with my independent analysis of the merits of the motion as set out below. However, after I prepared my independent analysis, the “Order on Indigency Contest” was received. As can be seen from the order, a partial explanation for the order’s holding which denies only in part Watkins’s status as indigent is provided. The independent analysis I had been compelled to perform already addressed this issue; thus, I have provided my entire analysis because it also addresses other potential issues of interest. Possibly Late In my attempt to determine why the majority has sustained the contest, one consideration was that the affidavit of indigence was not considered because the majority determined that it was filed late. I note that this could be a possible ruling based upon the majority’s recent holding in Brewer. Brewer v. Simental, No. 10-07-00094-CV, 2007 Tex. App. LEXIS 4144 (Tex. App.—Waco May 23, 2007 order). In that proceeding, the majority determined that the appellant’s deadline within which the affidavit of indigence must be filed to avoid having the matter referred to the Court for a dismissal due to nonpayment was by the date upon which the clerk required action. As I understand the majority’s holding in that case, if the affidavit is not received by the date specified in the notice from the clerk within which the appellant must pay for the filing fee, the appeal can be dismissed. To that holding, I dissented. Id. (Gray, C.J., dissenting). Nevertheless, if that is the basis for the majority’s ruling in this appeal, I note that there is a disparity between the January 29 letter to Watkins and the January 30 letter to Watkins, both from the clerk. In the January 29 letter, Watkins had 21 days after the date of the letter within which to respond to the failure to pay the clerk’s fee. But in the January 30 letter, Watkins was given only 10 days from the date of the letter to respond to the late payment of the filing fee in this Court before the matter would be presented to the Court for dismissal of the appeal. Thus, if the sustaining of the indigency contest is because the indigent’s affidavit was not timely filed, I would disagree with that determination as well. The affidavit of indigency was filed on February 20, 2007, the date that it was received. Nevertheless, it bears a posting date of February 16, 2007. Thus, under our January 29, 2007 correspondence in which Watkins was given 21 days to respond, the affidavit was timely filed. I note that filing by mail is timely if the document is received within 10 days after the deadline if certain conditions are met. See Tex. R. App. P. 9.2(b)(1). It appears that the requirements of this rule were met in this case. Further, I do not believe that we can deny Watkins’s access to the courts just because his indigence affidavit was not received by the deadline set by the clerk if it is actually received before the appeal is dismissed and it would not otherwise prejudice the Appellee. Brewer, 2007 Tex. App. LEXIS at *1-2 (Gray, C.J., dissenting). Merits of the Motion Indigent persons have a right of access to utilize our court system. See Griffin Indus. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 353 (Tex. 1996) (“Our state Constitution and our rules of procedure recognize that our courts must be open to all with legitimate disputes, not just those who can afford to pay the fees to get in.”). If a person establishes that they are indigent, absent extraordinary circumstances such as being determined to be a vexatious litigant, they may establish their indigence and can proceed without the advance payment of costs. Tex. R. App. P. 20.1(a). If it is clear that the person is attempting to proceed as an indigent on appeal, that determination is made pursuant to Rule 20 of the Rules of Appellate Procedure. Specifically, Rule 20.1(a) provides the procedure for establishing indigence in civil cases. I note that the affidavit of indigence filed by Watkins was not timely filed according to Rule 20.1(c). But the Texas Supreme Court has reminded us that we cannot deprive a litigant of review just because the non-jurisdictional affidavit of indigence was not timely filed. Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899-300 (Tex. 2006); see also Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829 (Tex. 2007). Further, I note that the affidavit of indigence filed by Watkins does not contain every item of information required pursuant to Rule 20.1(b). Generally, this Court has not required rigorous exactness to the requirements of the rules regarding indigency determinations. See In re Long, 211 S.W.3d 481 (Tex. App.—Waco 2007, dissent to order); In re Taylor, 205 S.W.3d 739 (Tex. App.—Waco 2006, dissent to order). What is required is sufficient evidence to support the determination that the affiant is currently unable to make payment for the filing fee, court cost, and other fees in connection with pursuing a proceeding in the courts of Texas. Further, I note if there is a deficiency in the form of the affidavit, we would be required to give Watkins notice of the defect and allow “a reasonable time to correct or amend the defects or irregularities.” Higgins, 193 S.W.3d at 899; In re J.W., 52 S.W.3d 730, 732-733 (Tex. 2001.); Tex. R. App. P. 44.3. We have not notified Watkins of a defect in the procedure, if any, including the form, of determining his indigence. Likewise, if the affidavit of indigency is considered to be a non-conforming document because it does not comply with the specifications of the rule regarding an indigence affidavit, “the court must identify the error to be corrected and state a deadline for the party to resubmit the document in a conforming format.” Tex. R. App. P. 9.4(i). We have not notified Watkins that his affidavit of indigency was a non-conforming document. Therefore, we cannot rely upon the omissions from the affidavit of indigency to rule on the district clerk’s contest to Watkins’s assertion that he is indigent. Further, I note that the district clerk’s contest of Watkins’s affidavit of indigence does not constitute any evidence that Watkins is, in fact, not indigent.[2] It is simply a contest of his indigence filed pursuant to the rule. See Griffin Indus. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996) (“To overcome a prima facie showing, an opposing party must offer evidence to rebut what has been established.”). Essentially, this contest is nothing more than a general denial, without any evidentiary value, which joins issue on Watkins’s assertion that he is indigent. The affidavit of indigence filed by Watkins, however, is evidence which “must be considered as evidence and is sufficient to meet the indigent party’s burden to present evidence without the indigent party’s attending the hearing” because the indigent party was incarcerated at the time the contest to the indigence status was determined. Tex. R. App. P. 20.1(g). Thus, the only evidence in this record of whether or not Watkins is indigent is his affidavit which we must now examine in detail. Watkins’s Affidavit of Indigence The entire affidavit as previously set forth contains nothing to indicate that at the time the payment for costs is due that Watkins has any disposable asset or access to sufficient funds to pay for the clerk’s record, even though it is only approximated at $50.00. I note that the affidavit indicates that Watkins received from Unicor Industries $2,500.00 a year. If we were giving Watkins one year in which to make the payment for the clerk’s record, I would not be adverse to determining he was not indigent for purposes of paying the clerk’s fee. But without more information regarding when this money is received, the increments in which it is received, and the encumbrances upon these proceeds, or other expenses which must be paid from these proceeds when received, this meager and vague statement, given the other clear and unequivocal statements in the affidavit of having no disposable assets, does not support the determination that Watkins is presently able to pay the fees and expenses in connection with this appeal, including payment for the clerk’s record. Further, once Watkins has established a prima facie case of his indigence, a position accepted by the majority as evidenced by the waiver of the fees due at this Court, the burden shifts to the party opposing indigency to show why, how, or when the indigent party could pay fees and cost. See Griffin Indus. v. Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 352 (Tex. 1996). The contestant in this proceeding, the district clerk, did not present any evidence in response to Watkins’s prima facie showing of indigence. Accordingly, based upon the foregoing analysis, I have been unable to determine any reason why the district clerk’s contest to Watkins’s indigent status should be sustained. Therefore, I would overrule the contest to Watkins’s indigent status and order this proceeding to proceed without Watkins’s advance payment of costs. Obviously, if Watkins is successful in this appeal, he would not be responsible for the costs which would be assessed against the State in a final judgment. Reporter’s Record One anomaly that I will briefly mention about this proceeding is revealed by the reporter’s record. The reporter did not contest Watkins’s indigent status and filed a reporter’s record. The unpaid fee for that record is $52.00. The reporter’s record of the hearing indicates that forfeiture is not for $1,937.00 as indicated by the style of the case, but instead is for $1,837.00. The difference is explained as being one $50.00 counterfeit bill included in the currency that was forfeited and an error in the amendment to the forfeiture petition of $50.00. I note that this $50.00 error may accrue to Watkins’s benefit, but he does not have present access to the $50.00 and, therefore, still would be unable to utilize it for the advance payment of costs. The Majority’s Reason[3] The majority gives absolutely no reason or basis for their determination. In fact, as previously indicated, when I inquired about their reasoning, Justice Vance provided the following response: That [explanation of the basis for sustaining the contest] is not coming. Neither Felipe nor I have to explain or justify our votes to you. Furthermore, I do not want to see any response I might make in a concurring or dissenting opinion. You are as capable as I (maybe more) of evaluating the merits of this motion. Accordingly, I have no way of knowing, nor does the reader, why a majority of this Court has sustained the district clerk’s contest to Watkins’s assertion that he is indigent. I had hoped that by obtaining the explanation we could come together on a reason to sustain or overrule the contest. But without the majority providing a reason for their ruling, I am unable to determine whether I agree with it or not. I thought one of the primary reasons for an appellate court having published decisions on issues that are likely to repeat, like this one, was for the express purpose of according all litigants equal treatment. Only by knowing the reason for the decision is a subsequent litigant able to bring himself within the protections, or avoid the pitfalls, of previous holdings regarding similarly situated litigants. There is no way for Watkins to compare the result of this proceeding with other proceedings in which we have allowed the individual to proceed without the advance payment of costs. Watkins, as I am, is left to guess at the reasoning supporting the majority’s determination of his status as not being indigent. This is not the first case in which Justice Vance has refused to provide a reason for his decision. Personally, I can think of no reason that a justice would be offended by having the reasons given for their ruling included in a concurring or dissenting opinion unless the reason being given would indicate that the ruling was based upon improper or unlawful reasons. In other words, if the judge or justice can provide a proper reason for the result, they should not be offended by its inclusion and discussion in a concurring or dissenting opinion. On the other hand, if the result or ruling is motivated by improper, irrational, or unlawful reasons, the judge or justice would have every incentive to not disclose the reason. This should have been a fairly simple ruling by this Court. Nevertheless, it was passed back and forth between Justice Vance and me several times and ultimately resulted in my having to independently evaluate everything in connection with this determination. If I had been provided the reason for the majority’s conclusion, I could have focused my research and response on the stated reason. Thus, by not stating the reason, and requiring me to conduct my own independent and complete review of the motion without guidance or direction, one justice has forced another justice to utilize an inordinate amount of resources to obtain a ruling on this one issue. I do not have this luxury with regard to every motion that crosses my desk. A cooperative spirit is required even if the justices disagree on the result. But to have one or more justices that refuse to engage in the process of coming to a decision by not explaining the basis for their decision should not be tolerated. However, I am powerless to do anything other than highlight the problem so that the bench, the bar, the parties, the higher courts, and the public at large are generally apprised of the situation. Conclusion Because I have been unable to find any basis to sustain the contest to Watkins’s assertion that he is indigent, and based upon the only evidence in the record regarding that status, I would hold that the district clerk’s contest to Watkins’s indigency is overruled, determine that Watkins is indigent, and therefore is not required to pay the costs of proceeding in advance. Therefore, I would order the district clerk to provide the clerk’s record to this Court without the advance payment of costs. TOM GRAY Chief Justice Dissenting opinion delivered and filed May 30, 2007 Publish [1] The difference between this amount and the amount in the style of the case will be explained later in this opinion. [2] It is outside the record and not relied upon by me, but Watkins also made this same observation in the “Motion to Dismiss District Clerk’s Motion to Contest Appellant’s Indigence” that Watkins filed with the district clerk on March 22, 2007. [3] As the reader will understand from the prior recitation of why I had to do an independent analysis, this was prepared before the current form of the order was prepared.