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Opinion issued June 21, 2007























In The

Court of Appeals

For The

First District of Texas




NO. 01-06-00568-CV

__________



SANDRA MCKAY, Appellant



V.



DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee




On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 2004-10368J




MEMORANDUM OPINION

In this accelerated appeal, (1) appellant, Sandra McKay, challenges the trial court's decree, entered after a jury trial, terminating her parental rights to her minor children, J.J.E. and V.M.M. In four points of error, McKay contends that the trial court's finding that her appeal is frivolous was improper, the evidence is legally and factually insufficient "to support involuntary termination of [McKay's] parental rights absent jury opportunity to hear expert testimony from [McKay's] doctor and therapist," the trial court abused its discretion in denying McKay the opportunity to have her expert witnesses testify, and appellee, the Department of Family and Protective Services ("DFPS) "discriminated against [McKay] based on her disability by failing to reasonably accommodate."

We affirm.

Factual and Procedural Background

Sandra McKay has three children. In December 2004, after DFPS received a referral alleging "neglectful supervision" by McKay, DFPS filed its petition seeking to terminate McKay's parental rights to two of her children, J.J.E. and V.M.M., both of whom are classified as having special needs. DFPS further alleged in its petition that, prior to seeking termination of McKay's parental rights, McKay had refused DFPS's offers of home assistance.

At trial, McKay testified that she is mentally retarded, reads on "a second grade level," has been diagnosed as having a mood disorder with psychotic seizures, and takes multiple medications. McKay stated that J.J.E. is mentally retarded, autistic, and has the capability to lose control and become violent, and V.M.M. is mildly retarded. Both J.J.E. and V.M.M. were enrolled in special education. McKay agreed that sometime around October 2000, police officers found J.J.E., who at that time was approximately four years old, and V.M.M., who at that time was approximately three years old, in diapers and alone near a busy street. Again, in March 2001, J.J.E. and V.M.M. were found alone walking along a busy street. In December 2004, a DFPS investigator visited her house after J.J.E. was found with a bloody foot, and McKay told the investigator that she did not have to tell her anything and that she was moving. After this incident, DFPS filed suit and placed J.J.E. and V.M.M. in foster care. McKay agreed that her doctor had told her she had an IQ of 40.

Tatiana Dove, the DFPS investigator who met with McKay, testified that after she received a report of neglectful supervision in December 2004, she met with J.J.E. and V.M.M., who were dirty and unkempt. Dove stated that both children had mental deficits and that she had received information that they fought constantly and no one could stop them. After Dove spoke with officials from the children's school, she became concerned that McKay could not provide for their basic needs. Dove then visited McKay's apartment, which was in poor condition and had an unbearable odor. Dove offered McKay family based services in an attempt to keep the children at home, but McKay refused and told Dove that she was moving to Chicago. DFPS then decided to remove the children based on concerns for their welfare.

Diane Gillespie, the children's life skills teacher, testified that the children came to school in an unkempt condition, with shoes on the wrong feet, and roaches in their backpacks. The school purchased clothing for the children, and kept this clothing at the school to wash. Gillespie also had concerns that the oldest child in the McKay household, who was also of elementary school age, was having to taking care of J.J.E. and V.M.M. Dorothy Florian-Lacy, the children's therapist, testified that since the children have been in foster care, their behavior has improved dramatically. She also believed it to be in the children's best interest not to be placed with McKay.

After the conclusion of the jury trial, the trial court signed a decree terminating McKay's parental rights to J.J.E. and V.M.M. In the decree, the trial court found, as the basis for the termination of McKay's parental rights, that McKay knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, (2) McKay engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children, (3) and termination of the parent-child relationship between McKay and the children was in the children's best interest. (4) The trial court also found that McKay has a mental or emotional illness or a mental deficiency that renders her unable to provide for the physical, emotional, and mental needs of the children and will continue to render her unable to provide for the children's needs until their 18th birthday, despite at least six months of reasonable efforts to return the children to the mother. (5)

Frivolousness Finding

In her first point of error, McKay contends that the trial court's finding that her appeal is frivolous was improper. McKay asserts that she timely filed a statement of appellate points pursuant to section 263.405(i) (6)

of the Texas Family Code and that the the trial court "timely held a hearing under [section] 263.405(d)," after which it found her appellate points to be frivolous. See Tex. Fam. Code Ann. 263.405(d), (i) (Vernon Supp. 2006). McKay complains that her appellate points have merit and are not intended to promote waste of time or resources and that her appeal should be allowed to proceed.

Although McKay asserts that the trial court conducted a hearing pursuant to section 263.405 and made a finding that her appeal is frivolous, as conceded by DFPS, nothing in the record indicates that such a hearing was held or that the trial court actually made a frivolousness finding under section 263.405. Accordingly, we need not address McKay's first point of error, and we proceed to address her remaining points.

Testimony from McKay's Witnesses

In her second and third points of error, McKay contends that the evidence is legally and factually insufficient "to support involuntary termination of [McKay's] parental rights absent jury opportunity to hear expert testimony from [McKay's] doctor and therapist" and that the trial court abused its discretion by denying McKay the opportunity to present testimony from her expert witnesses, Dr. Eilieen Starbranch and Malikah Marrus, L.M.S.W. (7)

In her brief, McKay avers that she made a timely request to secure the attendance of Starbranch and Marrus, both of whom McKay contends were properly subpoenaed, and that Starbranch and Marrus would have provided crucial testimony as to McKay's ability to parent and the children's best interest. McKay complains that without such testimony, "the jury could not hear additional information about the extent of [McKay's] mental deficiencies, thereby preventing a meaningful assessment of termination."

At trial, following McKay's presentation of testimony from her mother, the trial court requested that McKay present her next witness. McKay stated that her next witness had been subpoenaed, but that there was "nobody here." When the trial court asked McKay if she had any other witnesses, McKay identified only "Anika Norris, the licensed master social worker." (8) McKay did not identify any other witnesses, such as Starbranch, nor did she provide any description concerning the substance of Marrus's or Starbranch's testimony. During an exchange with the trial court, McKay again conceded that she did not have "any witnesses that are here," but asserted that they had "been subpoenaed." When the trial court asked McKay if she was "calling any more witnesses today," McKay agreed that she had "nobody else to call," and the trial court declared that "[r]espondent rests." Although McKay responded, "I don't rest Judge," the trial court told McKay that "[y]ou rest when you don't have any witnesses" and further instructed her to "[h]ave a seat." At this point, McKay made no further objections or motions.

We review a trial court's denial of a motion for continuance for an abuse of discretion. Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex. App.--Houston [14th Dist.] 2006, no pet.). A trial court abuses its discretion if its action is arbitrary, unreasonable, and without reference to any guiding rules and principles. Id. at 618. Texas Rules of Civil Procedure 251 and 252 govern motions for continuance for purposes of securing testimony. Id. at 619. Rule 251 provides that "[n]o application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251. If the ground for the application is "want of testimony," the applicant "shall make affidavit that such testimony is material, showing the materiality thereof, and that [s]he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known." Tex. R. Civ. P. 252. Furthermore, if the continuance is sought based on "[t]he absence of a witness," the applicant "shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done." Id. Finally, "the absence of a material witness is sufficient cause for granting a continuance, but only if the party used proper diligence to procure the testimony of the witness." Daugherty, 187 S.W.3d at 619.

Although McKay asserts that both Starbranch and Marrus were properly subpoenaed, there is nothing in the record to substantiate these claims other than assertions by McKay's appellate counsel. Nevertheless, even McKay concedes that "no proper oral motion for continuance was made," and there is also no written motion for continuance contained in the record, nor is there any explanation, either written or oral, as to the content of Marrus's or Starbranch's expected testimony. Although, as McKay asserts, the trial court might have continued the trial "on its own motion" in order to accommodate McKay's two expert witnesses, we cannot say that the trial court abused its discretion in not doing so. Accordingly, we hold that the evidence was not rendered legally and factually insufficient to support the termination of McKay's parental rights based on the absence of "expert testimony from [McKay's] doctor and therapist." We further hold that the trial court did not abuse its discretion "by denying McKay the opportunity to present testimony from her expert witnesses."

We overrule McKay's second and third points of error.

Discrimination

In her fourth point of error, McKay contends that DFPS "discriminated against [her] based on her disability by failing to reasonably accommodate." McKay asserts that the trial court denied her plea in abatement, which she filed on the basis of the Americans with Disabilities Act of 1990. See 42 U.S.C. 12101-12113. McKay further asserts that the ADA "may provide an affirmative defense in the context of termination" and that "[i]f in fact [DFPS] did not reasonably accommodate [her] through a tailored service plan, then [DFPS] has discriminated against [McKay] because of her disability." (9)

In In re C.M., this Court held that an ADA complaint in the context of a parental termination constitutes an affirmative defense and that a parent asserting DFPS's noncompliance with the ADA as an affirmative defense must plead, prove, and secure findings sustaining such an affirmative defense. See 996 S.W.2d 269, 270 (Tex. App.--Houston [1st Dist.] 1999, no pet.); see also In re B.L.M., 114 S.W.3d 641, 649 (Tex. App.--Fort Worth 2003, no pet.). (10)

Here, although McKay asserts that she filed a plea in abatement asserting the ADA as defense to the termination proceedings, McKay concedes that there is no such filing contained in the record. Furthermore, McKay did not plead this affirmative defense in her answer or in any other document filed with the trial court. There is also no reporter's record from any hearing on a plea in abatement filed on ADA grounds, and there is nothing in the record to indicate that McKay ever objected to the termination proceedings on ADA grounds. Accordingly, we hold that in failing to plead, prove, and secure findings sustaining an affirmative defense related to DFPS's alleged noncompliance with the ADA, McKay has waived this issue for our review. See Tex. R. App. P. 33.1.

We overrule McKay's fourth point of error.



Conclusion

We affirm the trial court's decree.





Terry Jennings

Justice



Panel consists of Justices Taft, Jennings, and Alcala.



1.

See Tex. Fam. Code Ann. 263.405(a) (Vernon Supp. 2006).

2.

See Tex. Fam. Code Ann. 161.001(1)(D) (Vernon Supp. 2006).

3.

See id. 161.001(1)(E) (Vernon Supp. 2006).

4.

See id. 161.001(2) (Vernon Supp. 2006).

5.

See id. 161.003 (Vernon 2002).

6.

The record indicates that McKay filed her statement of points.

7. Despite labeling her second point of error as a challenge to the sufficiency of the evidence, McKay does not actually challenge the sufficiency of the evidence to support the trial court's findings under sections 161.001 and 161.003 to support the termination of her parental rights. See id. 161.001, 161.003. She also does not allege that such findings are insufficient to support termination of her parental rights. In fact, in regard to her "parental acts," McKay concedes that "should lack of legal and factual sufficiency as a matter of law not be found" based on her complaint that her two expert witnesses were not allowed to testify, "the legal and factual sufficiency of the testimony confined to the record as a whole should be overwhelmingly in favor of involuntary termination with no further discussion of parental acts necessary" and "with no further discussion of best interest necessary." Thus, in their briefing, neither McKay nor DFPS discuss in any significant detail the specific evidence presented at trial supporting the trial court's findings necessary for termination under sections 161.001 and 161.003. Accordingly, although McKay raises "sufficiency" points, we do not discuss in detail the sufficiency of the evidence to support the trial court's specific findings, and instead discuss McKay's specific arguments on appeal concerning the absence of testimony from her expert witnesses. See Tex. R. App. P. 47.1.

8.

Although the reporter's record identifies McKay's social worker as "Anika Norris," McKay's appellate briefing identifies the social worker as Malikah Marrus. We refer to this witness using the latter designation.

9.

McKay concedes that "a more tailored plan may not have been capable of being devised by [DFPS] given [McKay's] composite IQ of 40 or 50" and that "if tailoring such a service plan for [her] is futile at best (based on her reported IQ score), then this ADA issue may not apply."

10.

DFPS notes that the Beaumont Court of Appeals has, in accord with other foreign jurisdictions, specifically declined to recognize an affirmative defense in parental rights termination cases arising out of noncompliance with the ADA. See In re S.G.S., 130 S.W.3d 223, 229 (Tex. App.--Beaumont 2004, no pet.).