in the Interest of M.P.J., II, a Minor Child

Affirmed and Memorandum Opinion filed July 20, 2004 Affirmed and Memorandum Opinion filed July 20, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-03-00746-CV _______________ IN THE INTEREST OF M.P.J., II, A MINOR CHILD _________________________________________________________ On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 00-02291J _________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant appeals a decree denying his petition to adopt M.P.J., II (AM.P.J.@) and granting appellees= petition to adopt M.P.J.[1] In five issues, appellant contends the trial court erred in (1) denying his motion for continuance, (2) admitting testimony of a Texas Department of Protective and Regulatory Services (ATDPRS@) representative, (3) finding TDPRS had good cause to refuse consent to adoption by appellant, (4) finding adoption by appellees was in M.P.J.=s best interest, and (5) failing to file findings of fact and conclusions of law. We affirm. I. Background M.P.J. was born August 9, 1999. His biological mother is R.D., and his biological father is M.P.J., Sr. Appellant testified that he had a relationship with R.D. from May 1994 until August 2000, and they lived together sporadically during this period.[2] R.D. had a serious drug and alcohol problem. Her addiction caused her to disappear periodically, and she had stints in various rehabilitation centers. During one such stay, she became pregnant with M.P.J. by M.P.J., Sr., a counselor at the center. After she was released, she lived with appellant through most of her pregnancy. Although appellant was not M.P.J.=s biological father, he assisted R.D. with prenatal care. After the birth, R.D. and M.P.J. lived with appellant continually for two months until R.D. entered another rehabilitation program and took M.P.J. with her. Over the next few months, R.D. and M.P.J. occasionally returned to appellant=s home while moving from one rehabilitation program to another. Appellant cared for M.P.J. when M.P.J. was in his home. Appellant testified that he considered M.P.J. his son. On March 18, 2000, appellant called Children=s Protective Services (ACPS@) after R.D. left M.P.J. in his care but did not return. According to appellant, CPS said there was nothing it could do. However, a caseworker arrived at appellant=s home later that day and informed him of a report that he had sexually abused R.D.=s daughter during one of her visits. The caseworker removed both M.P.J. and B.Jr., appellant=s son, from the home. Appellant was subsequently indicted for aggravated sexual assault of a child. Nevertheless, B.Jr. was eventually returned to him. However, the trial court appointed TDPRS as M.P.J.=s temporary managing conservator, and TDPRS filed suit to terminate R.D.=s and M.P.J., Sr.=s parental rights to M.P.J. Meanwhile, Mrs. Appellee had befriended R.D. in 1999 when R.D. attended the appellees= church. Mrs. Appellee tried to help R.D. overcome her substance abuse. When R.D. spent Thanksgiving 1999 with appellees, she asked them to be M.P.J.=s Godparents, and they agreed.[3] R.D. then disappeared until March 2000 when she phoned appellees telling them the State planned to take M.P.J. from her and asking if they would care for him while she attended a year-long rehabilitation program.[4] Appellees intervened in the termination proceeding, and TDPRS placed M.P.J. with them. Subsequently, the trial court terminated R.D.=s and M.P.J., Sr.=s parental rights to M.P.J.[5] Then, appellant and appellees each filed a petition for adoption. After a joint bench trial on both petitions,[6] the trial court found that all prerequisites for adoption had been satisfied and adoption by appellees was in M.P.J.=s best interest. The trial court also found TDPRS did not refuse consent to adoption by appellant without good cause. The trial court signed a decree granting adoption by appellees and denying adoption by appellant. II. Motion for Continuance In his first issue, appellant contends the trial court erred by denying his motion for continuance until the criminal charge against him was resolved.[7] The decision to grant or deny a motion for continuance is within the trial court=s sound discretion, and we will not disturb its decision absent a clear abuse of discretion. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.CHouston [14th Dist.] 2002, no pet.). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. In re E.L.T., 93 S.W.3d at 375 (citing Mercedes‑Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). Appellant contends the trial court abused its discretion because a continuance was required by section 161.2011(a) of the Texas Family Code which provides as follows: A parent whose rights are subject to termination in a suit affecting the parent‑child relationship and against whom criminal charges are filed that directly relate to the grounds for which termination is sought may file a motion requesting a continuance of the final trial in the suit until the criminal charges are resolved. The court may grant the motion only if the court finds that a continuance is in the best interest of the child. Tex. Fam. Code Ann. ' 161.2011(a) (Vernon 2002). However, section 161.2011(a) applies to a parent whose rights are subject to termination. See id. This is purely an adoption proceedingC not a termination proceeding, and appellant does not fit the statutory definition of Aparent.@ See Tex. Fam. Code Ann. ' 160.201(b) (Vernon 2002); Tex. Fam. Code Ann. ' 160.204 (Vernon Supp. 2004). Therefore, a continuance was not required by section 161.2011(a).[8] Moreover, other than section 161.2011(a), appellant has not cited, and we have not found, any law requiring the trial court to continue the adoption proceeding until the criminal charge against appellant was resolved. To the contrary, because M.P.J.=s adoption proceeding had been pending for almost two years, it would not have been arbitrary or unreasonable for the trial court to conclude that the proceeding had been delayed long enough,[9] and it was in M.P.J.=s best interest to go forward with the proceeding. Accordingly, the trial court did not abuse its discretion in denying appellant=s motion for continuance. Appellant=s first issue is overruled. III. Testimony of TDPRS Representative In his second issue, appellant contends the trial court erred in admitting the testimony of Doris Samuel, a TDPRS representative. The admission or exclusion of evidence rests within the sound discretion of the trial court. Hunt v. Baldwin, 68 S.W.3d 117, 126 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). To obtain reversal of a judgment based upon error in the admission or exclusion of evidence, the appellant must show the trial court did in fact commit error, and the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Id. (citing Tex. R. App. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)). Appellant argues Samuel=s testimony should have been automatically excluded under Rule 193.6 of the Texas Rules of Civil Procedure because TDPRS did not disclose her as a witness in response to appellant=s discovery requests.[10] Rule 193.6 provides that A party who fails to make, amend, or supplement a discovery response in a timely manner may not . . . offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds . . . good cause for the failure . . . or the failure . . . will not unfairly surprise or unfairly prejudice the other parties. Tex. R. Civ. P. 193.6 (emphasis added). However, Rule 193.6 exempts a Anamed party@ from the mandatory exclusion. See id. TDPRS was a Anamed party,@ and Samuel was TDPRS=s representative at trial. Samuel testified she was employed by TDPRS as a Afoster adoption worker@ and was responsible for consummating M.P.J.=s adoption. Further, the trial court considered Samuel to be TDPRS=s representative. Before she testified, the trial court said, Awe do need some testimony on the record from the Agency as to what their election is.@ Therefore, Rule 193.6 did not preclude Samuel=s testimony despite any failure by TDPRS to disclose her.[11] Appellant also complains that Samuel=s testimony was unreliable. However, at trial, appellant objected to Samuel=s testimony only on the grounds she was not disclosed as a witness and her testimony was hearsay. Therefore, he has waived his complaint about reliability. See Tex. R. App. P. 33.1(a); Knoll v. Neblett, 966 S.W.2d 622, 639 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) (holding objections on appeal must conform to those made at trial or they are waived). Accordingly, the trial court did not abuse its discretion in admitting Samuel=s testimony. Appellant=s second issue is overruled. IV. Refusal Of Consent To Adoption by Appellant In his third issue, appellant contends the trial court erred in finding TDPRS had good cause to refuse consent to adoption by appellant. Section 162.010(a) of the Family Code provides the following: 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) (Vernon 2002). A managing conservator has good cause to refuse consent when it has a good faith reason to believe the best interest of the child requires that it withhold consent. See Chapman v. Home, 561 S.W.2d 265, 267 (Tex. Civ. App.CFort Worth 1978, no writ). The party seeking waiver of the consent requirement bears the burden to prove the managing conservator=s lack of good cause. See id. We review the trial court=s finding on good cause for abuse of discretion. See In the Interest of M.T., 21 S.W.3d 925, 930 (Tex. App.CBeaumont 2000, no pet.); Rodriguez v. Miles, 655 S.W.2d 245, 249 (Tex. App.CCorpus Christi 1983, no writ). 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 T.J.L., 97 S.W.3d 257, 266 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.CHouston [1st Dist.] 1993, writ denied). Here, there is evidence TDPRS had good faith reason to believe that refusing consent to adoption by appellant was in M.P.J.=s best interest. Samuel testified there were several reasons TDPRS refused appellant=s request. First, appellant had a previous CPS history which was Avalidated with disposition of, reason to believe.@ Specifically, CPS received a referral in August 1997 concerning physical abuse of one-year-old B.Jr. during a physical altercation between appellant and R.D. In fact, appellant=s testimony confirmed that B.Jr. was caught in the middle of this altercation. Appellant explained that R.D. came home after disappearing for several days, and appellant told her she could not stay. While R.D. was holding B.Jr., she and appellant Aswung@ at each other. After R.D. threatened to kill appellant, he ran down the street carrying B.Jr. while R.D. pursued them with a knife. The evidence is somewhat unclear because appellant testified he Atossed@ B.Jr. on a workbench during the chase, but he also testified he placed B.Jr. on the grass or curb area. In any event, he placed B.Jr. down to get away from R.D. When the CPS caseworker asked if appellant was concerned about placing B.Jr. near a road or intersection, he replied that it was Aa matter of self preservation.@ B.Jr. sustained a contusion on his head as a result of this incident. According to the CPS file, appellant reported he might have hit B.Jr. while trying to hit R.D. B.Jr. was temporarily placed in a shelter while appellant took parenting classes and was returned to appellant a few weeks later.[12] In addition, Samuel testified TDPRS refused appellant=s request based on the aggravated sexual assault of a child charge which was also validated with Adisposition of, reason to believe.@ Nevertheless, appellant argues TDPRS lacked good cause because it refused to investigate the validity of the charge.[13] However, Samuel testified TDPRS does not investigate criminal charges. Her testimony suggested the charge alone was reason to refuse consent. Further, TDPRS had previously informed appellant it was against CPS=s policy to consider his request until the charge was resolved. Regardless, the incident regarding B.Jr. supported the good cause finding irrespective of the pending criminal charge.[14] Finally, Samuel testified TDPRS refused appellant=s request because it had determined adoption by appellees was in M.P.J.=s best interest. Nevertheless, appellant suggests TDPRS and M.P.J.=s guardian ad litem wrongfully refused to even consider his qualifications.[15] However, according to Samuel, she had explained to appellant that TDPRS had already selected a family and could not work with him due to his history. Accordingly, the trial court did not abuse its discretion in finding TDPRS had good cause to refuse to consent to adoption by appellant. Appellant=s third issue is overruled. V. Adoption By Appellees In his fourth issue, appellant challenges the adoption by appellees. Section 162.016(b) of the Family Code provides, AIf the court finds that the requirements for adoption have been met and the adoption is in the best interest of the child, the court shall grant the adoption.@ Tex. Fam. Code Ann. ' 162.016(b) (Vernon 2002). The decision to grant an adoption is within the discretion of the trial court, and we may not set aside the decision except for abuse of discretion. See In the Interest of W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); In re D.R.L.M., 84 S.W.3d 281, 305 (Tex. App.CFort Worth 2002, pet. denied); see also Hopper, 612 S.W.2d at 638 (recognizing trial court, in determining whether adoption is in child=s best interest, has the opportunity to observe appearance and demeanor of witnesses, evaluate personalities of claimants, and assess needs of child). Appellant contends the trial court abused its discretion by concluding adoption by appellees was in M.P.J.=s best interest.[16] However, there is ample evidence supporting the trial court=s decision. At the time of trial, appellees had been married twenty-two years and had three other children. Their home investigation indicates the other children are mentally and physically healthy. They are good students and enjoy good interaction with their peers. CPS has never been called to appellees= home. M.P.J. was eight months old when he went to live with appellees and had lived with them for almost three years at the time of trial. Appellees testified they love M.P.J and consider him their child. M.P.J. calls them AMommy@ and ADaddy@ and loves them. Their other children love M.P.J. and consider him their Alittle brother,@ and M.P.J. loves them. Mr. Appellee provides financially for his family,[17] and Mrs. Appellee is a housewife. Appellees believe they have given M.P.J. a stable home. Based on his religious beliefs, Mr. Appellee believes God gave them the opportunity and means to take care of M.P.J. Mrs. Appellee testified M.P.J. is afraid of being left home and hates when she leaves, but she reassures him she will return. Appellees believe M.P.J. would be severely traumatized if he were Aripped away@ from them. Further, appellees= home study was quite positive and recommended they be approved to adopt M.P.J. Finally, Samuel testified TDPRS determined it was in M.P.J.=s best interest to be adopted by appellees because he had been in their home for three years, appellees met his needs, and it would be detrimental to remove him from their home.[18] Appellant does not challenge the evidence favorable to adoption by appellees. Instead, he again complains that TDPRS and M.P.J.=s guardian ad litem refused to discuss the case with him or consider his qualifications to adopt M.P.J. However, we reject these complaints by concluding the trial court did not abuse its discretion in finding TDPRS had good cause to refuse consent to adoption by appellant.[19] Appellant also contends it was in M.P.J.=s best interest to be placed in the same home as his half-brother, B.Jr. He cites section 162.302(e) of the Family Code which provides, AIt is the intent of the legislature that [TDPRS] in providing adoption services, when it is in the children=s best interest, keep siblings together and whenever possible place siblings in the same adoptive home.@ Tex. Fam. Code Ann. ' 162.302(e) (Vernon 2002). However, section 162.302(e) is appropriately applied when both siblings are being placed for adoption. See id.; In re D.R.L.M., 84 S.W.3d at 304. Regardless, the intent that siblings be kept together does not override the best interest requirement. See Tex. Fam. Code Ann. ' 162.302(e); In re D.R.L.M., 84 S.W.3d at 304B07 (holding trial court did not abuse its discretion in finding placement of child in same adoptive home as half‑sister was not in child=s best interest; experts testified child was attached to her foster parents, and it could be very harmful to change the primary caregiver of a child under the age of three).[20] Because there is evidence that adoption by appellees was in M.P.J.=s best interest, the trial court did not abuse its discretion in granting their petition. See Hopper, 612 S.W.2d at 638 (holding trial court did not abuse its discretion in granting adoption because adoptive father lived with child for four years, supported him, cared for him when he was sick, provided religious training, treated him as his own, and child had loving relationship with baby born to child=s mother and adoptive father). Appellant=s fourth issue is overruled. VI. Findings of Fact and Conclusions of Law In his fifth issue, appellant complains that the trial court failed to file findings of fact and conclusions of law. If findings of fact and conclusions of law are properly requested, the trial court must prepare them. In re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (citing Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)); see Tex. R. Civ. P. 296, 297. The trial court=s failure to do so is presumed harmful unless the record affirmatively shows no harm resulted to the requesting party. In re J.I.T.P., 99 S.W.3d at 848 (citing Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)). The test for harm is whether the circumstances of a case require an appellant to guess the reason for the court=s ruling. Goggins v. Leo, 849 S.W.2d 373, 379 (Tex. App.CHouston [14th Dist.] 1993, no writ); see In re J.I.T.P., 99 S.W.3d at 848B49. In other words, the issue is whether the appellant was prevented from properly presenting his case on appeal. Goggins, 849 S.W.2d at 379; see In re J.I.T.P., 99 S.W.3d at 848 (citing Tenery, 932 S.W.2d at 30). Appellant was not required to guess the reasons for the court=s ruling on either adoption petition. The court had to deny appellant=s petition unless it found TDPRS refused consent without good cause. See Tex. Fam. Code Ann. ' 162.010(a). The trial court had to grant appellees= petition if it found adoption by appellees was in M.P.J.=s best interest. See Tex. Fam. Code Ann. ' 162.016(b). Further, because there is a complete reporter=s record, appellant was able to fully brief, and we were able to fully review, whether some evidence supported the trial court=s rulings. See In re J.I.T.P., 99 S.W.3d at 849; see also In re T.J.L., 97 S.W.3d at 266. Therefore, appellant has not been harmed by the trial court=s failure to file findings of fact and conclusions of law. Appellant=s fifth issue is overruled. The trial court=s decree is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed July 20, 2004. Panel consists of Justices Fowler, Edelman and Seymore. [1] To protect their privacy, we will refer to the parties as Aappellant@ and Aappellees@ or by their initials. See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2002). Because appellees are a married couple, we will refer to them as AMr. Appellee@ and AMrs. Appellee@ when discussing them separately. [2] Together, appellant and R.D. had a son, B.Jr., born in August 1996. Appellant assumed primary responsibility for B.Jr. and was eventually appointed his sole managing conservator. Appellant also helped raise two of R.D.=s other children, a son and a daughter, whenever they lived in his home. In August 1997, these children went to live permanently with their grandmother, but she allowed them to visit appellant. [3] According to Mr. Appellee, a Godparent is one who raises a child in the event of an unforeseen circumstance. [4] The exact date of this call is unclear, but apparently it coincided with TDPRS removing M.P.J. from appellant=s home and filing the petition to terminate parental rights. [5] R.D. and M.P.J., Sr. both filed affidavits voluntarily relinquishing their parental rights. [6] The petitions were originally assigned separate cause numbers. On the day of trial, the trial court consolidated the adoption petitions into the cause number for the termination proceeding. [7] Appellant filed the motion for continuance on the day of trial. At that time, the criminal charge had not been resolved. [8] Appellant asserts section 161.2011(a) applied because he is an Aequitable parent@ whose rights were effectively terminated when appellees adopted M.P.J. However, he cites no Texas authority entitling an Aequitable parent@ to be considered a parent under the Family Code. Cf. Hopper v. Brittain, 612 S.W.2d 636, 639 (Tex. Civ. App.CHouston [14th Dist.] 1981, no writ) (holding no authority supported finding parent‑child relationship based on love and affection between petitioner, who was not a parent as defined by the Family Code, and child who previously lived with him; thus, no termination required before child could be adopted by someone else). Instead, appellant cites only authority from several other states adopting the Aequitable parent@ doctrine. See In re Nicholas H., 46 P.3d 932 (Cal. 2002); Atkinson v. Atkinson, 408 N.W.2d 516 (Mich. Ct. App. 1987); In re Paternity of D.L.H., 419 N.W.2d 283 (Wisc. Ct. App. 1987). [9] The trial court had granted a continuance at appellant=s request on at least three previous occasions. [10] Appellees argue that TDPRS correctly objected to answering appellant=s discovery requests because they bore only the cause number for the termination proceeding which had concludedCnot the cause numbers for the adoption petitions. However, we need not determine whether TDPRS was required to respond to the discovery requests because even if it was, Rule 193.6 did not preclude Samuel=s testimony. [11] Appellant also complains that appellees failed to disclose Samuel. However, at trial, appellant complained only of TDPRS=s failure to disclose her. Therefore, he has waived any objection concerning appellees= lack of disclosure. See Tex. R. App. P. 33.1(a). [12] Appellant suggests TDPRS lacked good cause despite this incident because it returned B.Jr. to him, yet relied on the incident to refuse his request to adopt M.P.J. However, B.Jr. is appellant=s biological son while M.P.J. is not. Therefore, TDPRS=s decision to return B.Jr. presumably involved different considerations than its decision on whether appellant should adopt M.P.J. See generally Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (recognizing natural right that exists between parent and child is one of constitutional dimensions); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) (recognizing strong presumption that child=s best interest is usually served by keeping custody in the natural parents). [13] Appellant also claims TDPRS maliciously instigated the criminal proceeding to influence the adoption proceeding. However, this claim is not supported in the record. [14] Appellant denies the criminal allegation and states there was no evidence presented at the adoption trial to prove it. However, it was not the trial court=s role, nor is it ours, to determine the veracity of the allegation. Pursuant to section 162.010(a), the trial court had to determine only whether TDPRS had good cause to refuse consent, and TDPRS proved the charge was one of several reasons for refusing consent. [15] In particular, appellant notes TDPRS did not review a social study performed on his home in which the investigator stated it is difficult to see how appellant would be a risk to M.P.J., his references indicate he is an exceptional parent to B.Jr., and all references are supportive of adoption. However, the social study was submitted a year after TDPRS refused appellant=s request. Further, the investigator specifically made no recommendation on appellant=s request to adopt M.P.J. [16] Appellant does not contest that the requirements for adoption have been met. [17] Appellees= home study shows that Mr. Appellee is college educated, has a steady, professional job, and makes a suitable income to provide for four children. [18] The only arguably negative evidence is that appellees spank their own children. However, Mr. Appellee explained he spanks them with his hand just to get their attention. Nevertheless, appellees agreed at TDPRS=s request not to use this form of discipline with M.P.J. At trial, appellant also stressed that appellees had received marital counseling in the past. However, Mr. Appellee explained they received counseling because Mrs. Appellee received racially motivated, threatening phone calls after Mr. Appellee was promoted to a supervisory position in his company, and the calls caused her stress. [19] Further, these complaints are not relevant to whether adoption by appellees was in M.P.J.=s best interest. Once the trial court found TDPRS had good cause to refuse appellant=s request, the trial court could not grant appellant=s petition. See Tex. Fam. Code Ann. ' 162.010(a) (requiring managing conservator=s consent unless refused without good cause). Therefore, the only decision remaining was whether adoption by appellees was in M.P.J.=s best interest. [20] Appellant also cites cases holding that siblings should not be separated absent clear and compelling reasons; however, this standard has been applied when splitting custody of children of the same marriage. See, e.g., O. v. P., 560 S.W.2d 122, 127 (Tex. Civ. App.CFort Worth 1977, no writ); but see MacDonald v. MacDonald, 821 S.W.2d 458, 463 (Tex. App.CHouston [14th Dist.] 1992, no writ) (stating Family Code does not require clear and compelling reasons for splitting custody as best interest of the child is paramount in determining conservatorship). This standard does not apply to an adoption case. See In re D.R.L.M., 84 S.W.3d at 303B04 (refusing to impose heightened Aclear and compelling reasons@ burden applicable to custody proceedings to adoption proceeding).