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135 S.W. 3d 165 IN RE S.A.P.

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156 S.W.3d 574 IN RE S.A.P.
135 S.W. 3d 165 IN RE S.A.P.
80 S.W. 3d 232 IN RE J.M.M
963 S.W. 2d 550 Avery vs. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-345-CV

IN THE INTEREST OF S.A.P., A CHILD

From the 19th District Court

McLennan County, Texas

Trial Court # 2001-1889-1

O P I N I O N

Rebecca Williams Peterson’s and Jay Scott Peterson’s parental rights to S.A.P. were terminated in November 2002. They each brought several issues on appeal, complaining about (1) the legal and factual sufficiency of the evidence, (2) the testimony of Dr. Jim Shinder, and (3) the effect of letters from the Texas Department of Protective and Regulatory Services (“TDPRS”) that indicated the Department had ruled out their involvement in the alleged abuse or neglect that precipitated S.A.P.’s removal. In addition, Rebecca raises two issues regarding the constitutionality of statutes dealing with the effect of a prior termination, and Scott brings one charge issue. We find that the June 21, 2001, letters from TDPRS estopped the Department from bringing this termination proceeding. Accordingly, we will reverse and remand.

BACKGROUND

On June 8, 2001, Rebecca gave birth to S.A.P. at a hospital. That night or the next day, TDPRS workers came to her room as she was nursing her newborn, told her to stop breastfeeding her son, and said that she would not be able to take him home. Rebecca said that they did not explain why, except to allude to the Department’s involvement with her two older children, to whom her parental rights were previously terminated. Scott was not present at the time but found out later that the Department would be taking his baby. He also testified that they did not tell him why. However, caseworker Tiffany Gonzales testified that they had received a hotline phone call. She said that it is Departmental policy to tell the parents why their child is being removed. The emergency removal notice listed “Risk of Abandonment” as the reason for removal. TDPRS took physical custody of S.A.P. at the hospital on June 11, 2001. About two weeks later, Rebecca and Scott received letters from TDPRS, dated June 21, 2001, stating that the Department had ruled out any allegations of abuse or neglect by Rebecca or Scott against S.A.P.

Nevertheless, after S.A.P. was removed from his parents, TDPRS offered them services with the stated goal of family reunification. These “offered” services became court ordered. Not only did Scott and Rebecca participate in these services, they also voluntarily took parenting classes and participated in private parenting counseling and religious, pre-marital counseling.

Termination of Parental Rights

After a week-long trial, a jury found the following:

• Rebecca Williams [Peterson] has engaged in conduct or knowingly placed [S.A.P.] with persons who engaged in conduct which endangers the physical or emotional well-being of the child; [Tex. Fam. Code Ann. 161.001(1)(E)]

• Rebecca Williams [Peterson] has had her parent-child relationship terminated with respect to another child based on a finding that the mother’s conduct was in violation of 161.001(D) or (E), Footnote Texas Family Code, or substantially equivalent provisions of the law of another state; [Tex. Fam. Code Ann. 161.001(1)(M)]

• Based on clear and convincing evidence, termination of the parent-child relationship between Rebecca and S.A.P. is in S.A.P.’s best interest;[Tex. Fam. Code Ann. 161.001(2)]

• Jay Scott Peterson has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; [Tex. Fam. Code Ann. 161.001(1)(E)]

• Jay Scott Peterson has failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child; [Tex. Fam. Code Ann. 161.001(1)(O)]

• Based on clear and convincing evidence, termination of the parent-child relationship between Scott and S.A.P. is in S.A.P.’s best interest. [Tex. Fam. Code Ann. 161.001(2)]

The court entered the final order of termination as to both Rebecca and Scott on November 27, 2002.

ISSUES

Rebecca and Scott brought separate appeals. Rebecca brought six issues on appeal:

1. The evidence was legally and factually insufficient to support the jury’s finding that Rebecca engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

2. The evidence was legally and factually insufficient to support the jury’s finding that termination was in S.A.P.’s best interest;

3. The State should be estopped from basing a termination on neglect or abuse of a child in a case where they have affirmatively stated that they ruled out neglect or abuse of that child;

4. The court erred by admitting Dr. Shinder’s testimony without conducting a Daubert hearing, when such a hearing was requested;

5. Section 161.211 of the Family Code violates parents’ constitutional rights to due process; and

6. When prior termination of parental rights serves as the basis for termination in a later case, the earlier termination should have been valid.

Scott appealed the following issues:

1. Did the court err in submitting a charge that included a definition of “endanger” that commented on the weight of the evidence admitted at trial?

2. Did the court err in allowing Dr. Jim Shinder to testify on behalf of TDPRS?

3. Did the court err in requiring Scott to be evaluated and counseled by Dr. Shinder and his associates?

4. Did the court err by failing to dismiss the case against Scott because the allegations had been ruled out by TDPRS, or by allowing TDPRS to use evidence against Scott that it had represented would be permanently destroyed?

5. Was the evidence legally and factually sufficient to support the jury’s findings?

Because we believe it will be dispositive, we first address the issues of the TDPRS letters and estoppel.

EFFECT OF TDPRS LETTERS

Both Rebecca and Scott argue about the effect of virtually identical letters that they each received dated June 21, 2001. Both parents argue that the Department, having sent the letters, should have been estopped to bring the termination proceedings. In the alternative, Scott argues that TDPRS should not have been permitted to use evidence that it had represented would be permanently destroyed. Both parents brought challenges based on the letters, which were addressed in a pre-trial hearing on November 18, 2002, the transcript of which occupies over one hundred pages of the record. The court initially granted a motion in limine that would have prevented the Department from introducing any evidence that related to the factual basis initially used to remove S.A.P. from his parents without first approaching the bench. Two days later, prior to opening statements and after additional argument by the attorneys, Footnote the court withdrew its prior ruling on the motion in limine.

The letters, which differed only in that one was addressed to Rebecca Williams and one to Jay Peterson, stated that the Department had ruled out any allegations of abuse or neglect by Rebecca or Scott against S.A.P.:

Child Protective Services has completed an investigation based on a report dated 6/8/2001 that you were responsible for abuse or neglect of one or more children in the above named case [Williams, Rebecca L.]. Agency staff has concluded that you did not have a role in the alleged abuse or neglect. We will be offering services to your family to remedy any other problems identified during the investigation. Because all allegations involving you as an alleged perpetrator have been ruled out, you have the right to request that we remove information about your alleged role from our records . . . .The letter went on to explain that each parent should fill out an attached form in order to make such a request. The form, “Request for Removal of Role Information From Child Protective Service Case,” stated, immediately above the signature block, that making such a request would effect the complete removal and permanent destruction of information from the Department’s records.

IMPORTANT INFORMATION ABOUT YOUR RIGHTS

Once the role information involving you is removed from our records, THIS INFORMATION WILL BE PERMANENTLY DESTROYED AND WILL NOT BE AVAILABLE TO USE FOR ANY PURPOSE WHATSOEVER. Before deciding whether or not to request that the role information involving you be removed from the department’s records, you should consider the following:

1. Once the information is removed, the department’s official business record will no longer reflect that you were alleged to have committed abuse or neglect in this investigation.

2. Once the information is removed, the department’s official business record will no longer reflect that you were found NOT to have committed abuse or neglect. We will also not have a complete record of the investigation information which led us to conclude that you did not commit abuse or neglect.

3. If, for any reason, you wish to prove that someone falsely reported you for abuse or neglect, our records will not reflect the fact that the report against you was made once this information is removed.

Because this choice may have important consequences, you may wish to consult a private attorney for legal advice as to whether or not you should request that this information be removed.

Both Scott and Rebecca signed and returned the forms on July 6, 2001, and August 6, 2001, respectively.

The broad concept embodied in the doctrine of estoppel is that a person who by his speech or conduct has induced another person to act in a particular manner ought not be permitted to adopt an inconsistent position, attitude, or course of conduct to the loss or injury of such other. In the Interest of Moragas, 972 S.W.2d 86, 90 (Tex. App.—Texarkana 1998, no pet.) (citing First State Bank v. Dyer, 248 S.W.2d 785, 788 (Tex. Civ. App.—Waco 1952, affm’d 254 S.W.2d 92). The doctrine of equitable estoppel requires (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16 (Tex. 1998). The principle of estoppel is ordinarily not applicable to the state or governmental unit exercising its governmental powers. City of Hutchins v. Prasifka, 450 S.W.2d 829, 835 (Tex. 1970); Clear Lake City Water Authority v. Winograd, 695 S.W.2d 632, 640 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). However, Texas courts have recognized an exception to this rule, in exceptional circumstances, where the application of estoppel is necessary to prevent manifest injustice and will not interfere with governmental functions. Hutchins, 450 S.W.2d at 836; Roberts v. Haltom City, 543 S.W.2d 75, 80 (Tex. 1976); Clear Lake City Water Authority, 695 S.W.2d at 640 (“[A] municipal or quasi-municipal corporation may be estopped, where justice, honesty, and fair dealing require it.”). In this context, “injustice” requires some inequitable conduct by the party sought to be estopped. Dallas County Flood Control Dist. No. 1 v. Cross, 815 S.W.2d 271, 284 (Tex. App.—Dallas 1991, writ denied).

In this case, after removing S.A.P. from his parents days after his birth, TDPRS represented to Scott and Rebecca that it had determined that neither parent had a role in the alleged abuse or neglect of S.A.P. Nevertheless, TDPRS did not return S.A.P. to his parents’ care. In fact, nowhere in the records of the status hearings, conducted regularly during the seventeen months between S.A.P.’s birth and the termination trial, is there any indication that TDPRS informed the court that “agency staff [had] concluded that [the parents] did not have a role in the alleged abuse or neglect.” The Department removed S.A.P. days after his birth based on risk of abandonment. Footnote The factual basis for this “risk” was the parents’ course of conduct with their other, older children. The letter sent on June 21, 2001, effectively exonerated the parents of the only allegations against them regarding S.A.P. Then, the Department moved to terminate their parental rights under a variety of provisions of the Family Code. No other conduct occurred that was detrimental to S.A.P., who was in the Department’s custody.

TDPRS asserted at trial and on appeal that, notwithstanding the plain language, the letters that Scott and Rebecca received meant only that they could request a “role designation” be removed from the Department’s internal database. Accepting this as true, we find that each letter constituted a false representation or concealment of facts made with actual or constructive notice on the part of TDPRS that the letter meant something other than it indicated. Likewise, we have little difficulty finding that TDPRS intended that the letters should be acted on because the letters were accompanied by the forms that Scott and Rebecca signed and returned to the Department. As to the fourth element, Scott testified, although perhaps inartfully but without contradiction, that he and Rebecca did not have access to TDPRS’s internal procedures. Therefore, we find that both Scott and Rebecca were parties “without knowledge or means of obtaining knowledge” of the fact that the letter meant something other than what it said.

Turning to the fifth element, we must consider whether Scott and Rebecca detrimentally relied on the representations. Scott argues simply that he was deprived of “his right to due process under the U.S. Constitution and Texas Constitution.” Rebecca argues that “the State should have been held to its promise to destroy the documents and not use them for any purpose, and thereby estopped from using any of the questionable evidence or documents referred to in the letter.” TDPRS responds that “the form letter does not judicially decree that a case must be dismissed.” Because we are not considering judicial estoppel, we find the Department’s assertion to be inapposite.

Throughout this case, both Scott and Rebecca have denied abusing, neglecting, or endangering S.A.P. in any way. They sent in the forms, only to find that doing so did not end the Department’s possession of S.A.P. Scott testified at a pre-trial hearing, on November 18, 2002, that when he received the letter and the role removal form, he called the Austin TDPRS office. He said, during cross-examination, that he did not recall the name of the person whom he spoke to, but that he was told TDPRS would close the case if he sent in the form. Footnote

TDPRS ATTORNEY: Okay. So they just sent you the form. Did you talk to anyone at the Austin office?

SCOTT PETERSON: Yes.

TDPRS ATTORNEY: Do you remember who that was?

SCOTT PETERSON: Not offhand.

TDPRS ATTORNEY: And they told you they would send you a form and you got it?

SCOTT PETERSON: No. This was sent to me with this letter plus the back of that. I called and asked the situation, what was I supposed to do to clear it up. I signed it, sent it in, and I also made sure that they received it, which they did.

TDPRS ATTORNEY: Okay. So you didn’t call and have them explain it to you, what actually would happen when you sent this in?

SCOTT PETERSON: Well, all they told me is the case would be closed, to go in since they had my signature at a certain time.

TDPRS ATTORNEY: So someone at an office in Austin told you by having a role removal, you were going to have your entire CPS case closed?

SCOTT PETERSON: Yes, ma’am.

TDPRS ATTORNEY: Okay. Did you understand that that now was incorrect?

SCOTT PETERSON: Well, this is what I was told.

But the parents were unrepresented until much later. And they made no motion to have S.A.P. returned to them after they received these letters. In fact, it was not until just before trial, when they, through their court-appointed attorneys, moved to dismiss this case based on the letters. We recognize that the trial court had no obligation to appoint attorneys to represent the parents prior to the Department’s filing a petition to terminate their rights. Tex. Fam. Code Ann. 107.013 (Vernon 2004). But we note that both TDPRS—which, like the trial court, was sufficiently familiar with the parents’ financial situations to know that neither could afford to hire private counsel—and S.A.P. were represented by counsel at each and every hearing in this case. We cannot say from the record if it was the parents’ reliance on the letters, their lack of legal counsel during more than twelve months between receipt of the letters and the filing of the termination petition, or some other reason that led to their failure to attempt to have S.A.P. returned based on the apparent exoneration in the letters. But in the end, they did assert that position.

We find detrimental reliance in the fact that both Scott and Rebecca cooperated with the Department instead of opposing its actions based on the letters. Because we believe that Scott and Rebecca have satisfied the elements of equitable estoppel, we conclude that the Department should have been estopped to bring this proceeding. We sustain this issue.

CONCLUSION

Because the estoppel issue is dispositive of the case, we do not consider their other issues, and we reverse the judgment as to both parents and remand the cause for further proceedings consistent with this opinion.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna Footnote

(Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed March 17, 2004

[CV06]

*

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