Opinion
No. 02-04-031-CV
Delivered: November 18, 2004.
Appeal from the 323rd District Court of Tarrant County.
Dean M. Swanda, Swanda Swanda, Arlington, TX, for Appellant (L.H.).
Tim Curry, Crim. D.A., Charles M. Mallin, Asst. Crim. D.A. and Chief of the Appellate Division, and Helena F. Faulkner, and Lisa Callaghan, and Lisa Haines, Asst. Crim. D.As., Ft. Worth, TX for TDFPS.
Panel F: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
I. Introduction
L.H. appeals the trial court's judgment terminating her parental rights to J.H. In twelve issues, L.H. complains that the evidence is legally and factually insufficient, that the trial court erred by denying her motion to dismiss based on res judicata and by denying her motion to equalize strikes, and that she received ineffective assistance of counsel. We will affirm.
II. Factual and Procedural Background
A. TDFPS's Initial Contact in 1996
Texas Department of Family and Protective Services, sometimes referred to as "CPS."
L.H., born February 1955, is the mother of J.H., born March 1996. TDFPS first became involved with L.H. and J.H. in September 1996. TDFPS received a referral alleging L.H.'s medical neglect and neglectful supervision of J.H. The report alleged that five-month-old J.H. was admitted to the hospital after L.H. left him alone in the bathtub, and he became submerged under the water. L.H. resuscitated J.H. and called 911. The referral alleged medical neglect because when the ambulance arrived, L.H. did not want J.H. to be taken to the hospital; the police had to convince her to let them take J.H. to the hospital. Likewise, L.H. wanted to take J.H. home after he was in the hospital and had to be talked into letting him stay in the hospital overnight.
The trial court terminated the parental rights of S.W.W., J.H.'s father, in October 2000. S.W.W., however, is not a party to this appeal.
Actually, TDFPS first became involved with L.H. back in 1994 when her four oldest children raised allegations that she was sexually abusing them. The four oldest children now live with their father and are not involved in this appeal.
L.H. explained that she left J.H. unattended during his bath because she answered a phone call from an old friend and forgot about J.H. A nurse told the CPS caseworker that L.H. smelled like alcohol, and L.H. admitted that she mixed and drank two strong drinks that evening. She also admitted that she was being treated by a doctor at MHMR and was taking Zoloft.
The CPS caseworker believed that L.H. placed J.H. in a dangerous situation and ruled the case "reason to believe for medical neglect and neglectful supervision." Consequently, CPS decided to open a case with the Family Preservation Unit to get L.H. intensive services for a short-term period.
B. Police Involvement in 1999
In March 1999, the police became involved with L.H. and J.H. On March 4, 1999, police were dispatched to a restaurant because a patron, L.H., was intoxicated. Officer Kristen Brown testified that when she arrived at the restaurant, L.H. was intoxicated: she was swaying, had glassy eyes, slurred speech, and smelled like alcohol. L.H. was holding J.H., and Officer Brown asked her to put the child down. Officer Brown feared for J.H.'s safety. L.H. told Officer Brown that, although she knew better, she had taken some anti-depressants and had drunk some alcohol before she drove herself and J.H. to the restaurant. Some family friends came to pick up J.H., and L.H. became hysterical. Officer Brown arrested L.H. for public intoxication and took her to jail because she posed a threat to herself and others.
In December 1998, CPS received reports of physical abuse regarding J.H., but CPS ruled out those allegations.
On March 17, 1999, Corporal Matthew Barron encountered L.H. when he was dispatched to an accident scene. When Corporal Barron arrived at the scene, he found L.H.'s car off the road, nose-down in a construction ditch. J.H. was in the back seat, partially strapped in his car seat, but L.H. was standing across the road. Witnesses informed Corporal Barron that L.H. left the scene to find a restroom, leaving J.H. in the car. Corporal Barron noticed a strong odor of an alcoholic beverage on L.H.'s breath, and L.H. admitted that she had consumed three drinks. Thereafter, L.H. failed the sobriety tests, and her breathalyzer test results were twice the legal limit. A family friend picked up J.H. from the police station. L.H. ultimately received a DWI conviction for this incident.
Melisa Dean, a former CPS worker, testified that she received a referral for L.H. for neglectful supervision relating to the above acts. Dean met with L.H. the day after the ditch incident, and L.H. stated that she had felt tipsy, but not drunk. L.H. explained that when the accident happened, she was going home after being out with friends and that she had left her glasses at home, which is why she did not see the construction cones. L.H. said that she thought that because people stopped to help her, they would be trustworthy enough to watch J.H. while she went to the bathroom. When Dean explained to L.H. that these strangers could have taken J.H., L.H. responded "that she was a child of God, so [J.H.] and [she] would be protected[,] and no harm would come to them." At trial, when L.H. was asked whether she still believes that it was a good decision to leave J.H. in the car, she said her only belief is that it is wrong to drink and drive with a child in the car. CPS temporarily removed J.H. from the home following this incident and returned him to the home in December 1999.
C. Contact with Government Authorities in 2000
On March 1, 2000, CPS caseworkers went to L.H.'s apartment to get an affidavit notarized. When L.H. answered the door, she appeared to be drunk. The caseworkers saw a vodka bottle in the garbage. The caseworkers told L.H. that she needed to check herself into a rehabilitation facility to address her addiction to alcohol. Initially, the purpose of the caseworkers' visit was not to institute the removal of J.H.; however, when, during the visit, L.H. left her apartment with J.H. on her shoulders and ran to the busy highway, the situation changed.
Officer Lonnie Brazzell testified that he came into contact with L.H. on March 1, 2000 when he responded to a call from a CPS caseworker about a woman running on Highway 10 with a child on her shoulders. Officer Brazzell saw L.H. running with J.H. on her shoulders and, concerned for L.H.'s and J.H.'s safety, told L.H. to stop running. L.H. did not comply, and Officer Brazzell forced her to the ground to keep her from being hit by traffic. Officer Brazzell concluded that L.H. was intoxicated because she smelled like alcohol and was yelling and stumbling. Officer Brazzell also noticed that L.H.'s mental state fluctuated. He called John Peter Smith Hospital. An ambulance arrived and took L.H. away. CPS took custody of J.H. When asked at trial whether it was a good decision to run on the highway with J.H. on her shoulders, L.H. responded that she ran too slowly and that she needed a different escape route because "[t]hat doesn't look safe running on the street with a kid on your shoulders."
In October 2000, the trial court held a trial on TDFPS's original petition in a suit affecting the parent-child relationship and terminated J.H.'s father's parental rights. The jury also found that L.H. knowingly placed and knowingly allowed J.H. to remain in conditions and surroundings which endangered his physical and emotional well-being, but that it was not in J.H.'s best interest to terminate L.H.'s parental rights to J.H. Consequently, the trial court did not terminate the parent-child relationship between L.H. and J.H. at that time. J.H. remained in TDFPS's custody.
D. Contact with Government Authorities in 2001
On January 4, 2001, Officer Duermeyer came into contact with L.H. as a result of a domestic disturbance. The story that Officer Duermeyer received was that Michael Schiska was hitting L.H. in the back as they were trying to go to sleep and that both had been drinking pretty heavily. Officer Duermeyer resolved the situation by sending Schiska to his mother's apartment. Officer Duermeyer did not recall L.H. asking to file charges.
L.H. started dating Schiska in May 1999. She admitted that Schiska brought alcohol into her home, that he never signed the CPS placement plan, and that her caseworker had concerns about her relationship with him.
On April 8, 2001, Officer Niekamp came into contact with L.H. based on another domestic disturbance call: the caller reported two people fighting in an apartment. When Officer Niekamp arrived, both L.H. and Schiska smelled of alcohol and appeared intoxicated. L.H. told Officer Niekamp that Schiska had struck her all over her body and that she had gotten mad and pushed him off the bed. Officer Niekamp issued tickets for simple assault/family violence to both L.H. and Schiska, and Schiska went to his mother's apartment.
On April 29, 2001, Officer Hendrix came into contact with L.H. when she was lying on a street corner. L.H. explained to him that she had just gotten out of rehab, had gone out drinking, had gotten tired, and had decided to lie down to rest. L.H. appeared extremely intoxicated and could not stand upright. Officers took L.H. to her apartment and gave her a citation for public intoxication.
E. Contact with Government Authorities in 2002
Jessica Barrientes became L.H.'s caseworker in January 2002 and met with L.H. on January 10th to assess whether J.H. could be placed with her. Barrientes informed L.H. that she needed to maintain sobriety, maintain her relationship with MHMR, continue on her medications, maintain a stable living environment, maintain her visits with J.H., continue to pay child support, and refrain from criminal activities. L.H. stated that she understood her duties; however, she did not follow through with them.
Officer Eubank's April 7, 2002 police report stated that L.H. left Alcoholics Anonymous ("AA"), went home, and drank approximately one pint of Southern Comfort alcohol in a one-hour period. Officer Evant's police report from the same date stated that he observed L.H. walking behind a steakhouse and that she was barefoot and wet. L.H. told him that she would not hurt him and then proceeded to talk into a black object in her hand, calling it her "horse." L.H. stated that she was sent home via cab from a bar and needed to go back to her car at the bar to retrieve her sleeping pills. Officer Evant noted that L.H. would not stand still and was very animated. L.H. also told him that she was a recovering alcoholic and bipolar and that she was a child of God and would not drink because that is a sin. Officer Evant proceeded to conduct the horizontal gaze nystagmus test, during which L.H. tried to put her nose on the pen rather than follow it with her eyes. Officer Evant concluded that L.H. was intoxicated to the point that she was a danger to herself and others. L.H. was charged with public intoxication.
At trial, the parties stipulated to several portions of police officers' reports, which were then read into the record.
On April 12, 2002, Officer Stacie Whitehead encountered L.H. after a call came in that she had left AA and was driving while intoxicated. Officer Whitehead responded to the call and observed L.H. in her vehicle, drinking an unknown fluid. As L.H. drove, Officer Whitehead observed L.H. run stop signs, turn into the wrong lane, and change lanes without signaling. When Officer Whitehead attempted to pull over L.H., she pulled into an apartment complex other than her own and then put her vehicle in reverse. Officer Whitehead had to jump out of the patrol car and yell at L.H. to avoid being hit by her. After L.H. stopped, Officer Whitehead asked L.H. to put the vehicle in park and hand over the keys. L.H. responded that she would not hand over the keys because she did not trust Officer Whitehead. During this time, Officer Whitehead detected a strong odor of an alcoholic beverage about L.H.'s person and noticed that L.H. looked delusional and that her eyes were dilated. When Officer Whitehead asked L.H. to get out of the car, she said that she had hemorrhoids and was an alcoholic.
Officer Whitehead testified that she was familiar with L.H. because the department had received "demented-person-type calls" about L.H.
L.H. was unable to complete the field sobriety tests. She repeatedly stopped to pray, she told the officers that her light was strong, and she said she was distracted by an officer who was chewing gum and by the patrol lights. L.H. was unable to stand upright. She swayed drastically and stated that she was "powerless over alcohol." The officers arrested L.H. and transported her to the police station.
At the station, during the videotaped sobriety testing, L.H. prayed, danced, sang, and took off her clothes. She was unable to complete the tests. L.H. remained out of control when placed in her jail cell and was ultimately placed in the suicidal watch cell and a restraint chair. L.H.'s actions resulted in another DWI conviction.
On April 24, 2002, Officer Meador reported that he had been to L.H.'s apartment at 8:44 p.m. because L.H. and Schiska had been arguing. The police had received a call from L.H.'s neighbor requesting that L.H. be removed from the neighbor's apartment. Officer Meador's report from April 25, 2002 states that he was again dispatched to L.H.'s apartment at 12:30 a.m. While Officer Meador was en route to L.H.'s apartment, the dispatcher advised him that L.H. had gone to a shopping center and was nude from the waist down. When Officer Meador arrived at the scene, he detected a strong odor of alcohol on L.H.'s breath, and her eyes were watery. L.H. admitted to Officer Meador that she had driven to the shopping center. Officer Meador did not think it would be safe to conduct field sobriety tests on L.H. He arrested her for public intoxication.
On May 1, 2002, Officer Keitel stopped L.H. for a traffic violation. As L.H. exited the vehicle, Officer Keitel smelled alcohol on L.H.'s person and noticed that she had red, bloodshot eyes and that she swayed when she walked. L.H. was arrested and subsequently convicted for the offense of DWI, her third.
During 2002, L.H. missed her monthly visits with J.H. in April, May, June, August, September, and November. Moreover, she made her last child support payment on or about April 11, 2002. F. Contact with Government Authorities and Inappropriate Actions in 2003
L.H.'s child support payment deficiency totaled $5,991.08 at the time of the December 2003 trial.
Approximately one week before trial, in early December 2003, the police stopped L.H. for speeding and arrested her for driving with a suspended license. Two days before trial, L.H. visited with J.H. and showed him pictures that she brought, depicting a man sitting on a toilet and pictures of herself partially naked. Barrientes had to tell L.H. to put away the pictures. Furthermore, L.H. testified that she kicked Schiska out of her apartment on December 1, 2003; however, she later testified that he had been driving her to the trial each day.
G. December 2003 Trial
On December 16, 2003, the trial court held a jury trial on TDFPS's petition to terminate L.H.'s parental rights. On April 6, 2004, the trial court signed an order of termination based on the jury's findings by clear and convincing evidence that L.H. had (1) knowingly placed or knowingly allowed J.H. to remain in conditions or surroundings which endangered his physical or emotional well-being, (2) engaged in conduct or knowingly placed J.H. with persons who engaged in conduct which endangered his physical or emotional well-being, and (3) failed to support J.H. in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition and that termination of the parent-child relationship between L.H. and J.H. would be in the best interest of the child. The trial court then terminated L.H.'s parental rights to J.H.
III. Arguments Related to Peremptory Challenges
L.H. filed a pretrial motion to equalize peremptory challenges, claiming that TDFPS and J.H.'s guardian ad litem "are aligned as to certain issues in this trial, including termination" and accordingly should receive a total of six peremptory strikes between them. The trial court denied the motion during a pretrial hearing held about one month before trial.
Subsequently, trial commenced, and at the conclusion of voir dire, TDFPS exercised strikes on venire members seven, eight, seventeen, twenty-four, twenty-seven, and twenty-nine, while the ad litem exercised strikes on venire members eleven, sixteen, eighteen, twenty-three, thirty-one, and thirty-eight. TDFPS and the guardian ad litem each exercised six peremptory challenges and made no double strikes. After the parties exercised their strikes and the trial court announced the jury panel, L.H. reurged her motion to equalize the peremptory challenges. TDFPS responded that the motion was not timely because the strikes had already been made and the jury empaneled. The trial court denied the motion.
In her first issue, L.H. argues that the trial court erred by denying her motion to equalize strikes. In her second issue, she contends that her trial counsel rendered ineffective assistance of counsel to the extent, if any, that she did not preserve the issue on equalization of strikes.
A. Error in Allocation of Peremptory Challenges
As a general rule, each party to a civil case in district court is entitled to six peremptory challenges. Tex. R. Civ. P. 233. In multiparty cases, it is the trial court's duty, before the exercise of peremptory challenges, to decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury. Id. In addition, upon the motion of any litigant in a multiparty case, it is also the trial court's duty to "equalize" the number of peremptory challenges so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges. Id. Thus, when multiple litigants are involved on one side of a lawsuit, the threshold question to be answered in allocating peremptory challenges is whether any of those litigants are antagonistic with respect to an issue of fact that the jury will decide. See Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex. 1986) (op. on reh'g); Garcia v. Cent. Power Light Co., 704 S.W.2d 734, 736 (Tex. 1986); Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex. 1979). If no antagonism exists, each side of the docket must receive the same number of strikes. Garcia, 704 S.W.2d at 736; Patterson, 592 S.W.2d at 918; In re M.N.G., No. 2-03-104-CV, 2004 WL 1858135, at *5 (Tex.App.-Fort Worth Aug. 19, 2004, pet. filed) (op. on reh'g).
Whether antagonism exists between parties is a question of law for the trial court. Garcia, 704 S.W.2d at 736; In re J.T.G., 121 S.W.3d 117, 132 (Tex.App.-Fort Worth 2003, no pet.). In determining whether antagonism exists, the trial court must consider the pleadings, information disclosed by pretrial discovery, information and representations made during voir dire, and any information brought to the attention of the trial court before the parties exercise their peremptory strikes. Garcia, 704 S.W.2d at 737; J.T.G., 121 S.W.3d at 132. We review all questions of law de novo. J.T.G., 121 S.W.3d at 132; Garner v. Long, 49 S.W.3d 920, 922 (Tex.App.-Fort Worth 2001, pet. denied).
Here, the trial court heard L.H.'s motion to equalize peremptory challenges at the November 24, 2003 pretrial hearing. At this hearing, the guardian ad litem stated that she did not consider herself exactly aligned with TDFPS, that there was more work that she wanted to do on the case before she made her recommendation, and that therefore she would like to have her own peremptory challenges. The representative for TDFPS testified:
And I guess also, just in response to that, that over the past three years while this case has just been kind of out there in the [possessory managing conservator] status, I sometimes have found myself frustrated that [the guardian ad litem] didn't exactly know where we wanted to be.
The State has always been firm. We wanted to terminate, and [the guardian ad litem] has really kind of gone back and forth over the years, much to kind of the Department's frustration, about her position, and I just, when I saw this motion this morning, my response was, why do you think she's aligned with us? And so I really, I don't really believe just from the history of the past three years that I can say for sure she's aligned with the Department.
The trial court apparently agreed and denied the motion to equalize peremptory challenges. We hold that the trial court did not err by denying L.H.'s pretrial motion to equalize peremptory strikes.
L.H. further complains on appeal that, by the time of trial, it was clear that TDFPS and the ad litem were not antagonistic with respect to any issue to be submitted to the jury, yet TDFPS and the guardian ad litem received twice as many strikes as she did (i.e., twelve total to her six), and also received the additional benefit of coordinated strikes. She thus argues that the trial was materially unfair.
Here, five issues were submitted to the jury — whether circumstances had changed since the October 20, 2000 order, whether L.H. had endangered J.H. through the environment in which he was placed or by her conduct, whether L.H. had failed to pay child support in accordance with her ability, and whether termination was in J.H.'s best interest — and nothing in the pleadings, pretrial discovery, or voir dire examination indicates that TDFPS and the guardian ad litem were either aligned or antagonistic with respect to any of these issues. Thus, in the absence of any evidence of antagonism between TDPFS and the guardian ad litem, the trial court erred by determining antagonism existed. See Tex. R. Civ. P. 233 ("it shall be the duty of the trial judge to decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury"). If no antagonism exists, each side must receive the same number of strikes. Garcia, 704 S.W.2d at 736. Consequently, because no evidence of antagonism existed between TDFPS and the guardian ad litem with respect to the issues to be submitted to the jury, we hold that the trial court erred by allocating TDFPS and the guardian ad litem twelve peremptory strikes while allocating six peremptory strikes to L.H.
In fact, the guardian ad litem had apparently decided before trial to recommend termination of L.H.'s parental rights because in her opening statements she told the jury the evidence would show that L.H. failed to keep her promises to "stay sober, stay stable, [and] take her prescribed medication" and that it was in J.H.'s best interest for L.H.'s parental rights to be terminated.
B. Preservation of Error
Nonetheless, TDFPS insists that L.H. failed to preserve error on this issue because she did not reurge her motion to equalize until after the strikes were made. It is true that any error in the trial court's allocation of jury challenges among the parties must be preserved by a timely objection. Van Allen v. Blackledge, 35 S.W.3d 61, 65 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). In the Rule 233 context, the proper time to object to the trial court's allocation of peremptory challenges is at the same time that the determination of antagonism by the trial court should be made — after voir dire and prior to the exercise of the peremptory challenges allocated by the court. M.N.G., 2004 WL 1858135, at *6; Van Allen, 35 S.W.3d at 65.
In the present case, L.H. objected after the peremptory challenges were exercised, but before the jury was empaneled and sworn. The jury selection process itself, however, concretely revealed the evidence of improper coordination of strikes between TDFPS and the guardian ad litem, parties who were purportedly adverse. See M.N.G., 2004 WL 1858135, at *6-7; Van Allen, 35 S.W.3d at 65. As soon as L.H. became aware of the improper coordination — evidence of alignment as opposed to lack of evidence of alignment or antagonism — she reurged her motion to equalize peremptory challenges. Under these circumstances, we hold that the error was not waived. See M.N.G., 2004 WL 1858135, at *7 (holding that error was not waived where appellant moved for mistrial as soon as improper coordination was revealed); Van Allen, 35 S.W.3d at 65 (same).
C. Harm Analysis
We next examine whether the trial court's failure to equalize peremptory strikes between the sides constitutes reversible error. To obtain reversal of a judgment based upon an error in the trial court, the appellant generally must show that (1) the error occurred, and (2) it probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting the case to the appellate court. Tex.R.App.P. 44.1(a); In re D.I.B., 988 S.W.2d 753, 756 n. 10 (Tex. 1999); Tex. Dep't of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex. 1991); M.N.G., 2004 WL 1858135, at *7. Once error in the apportionment of peremptory challenges has been found, a reversal is required only if the complaining party can show that the trial was materially unfair. See Garcia, 704 S.W.2d at 737 (citing Patterson, 592 S.W.2d at 920); M.N.G., 2004 WL 1858135, at *7. This showing is made from an examination of the entire trial record. See Garcia, 704 S.W.2d at 737 (citing Patterson, 592 S.W.2d at 920); M.N.G., 2004 WL 1858135, at *7. Evidence that two purportedly antagonistic parties in fact collaborated on the exercise of their strikes and did not have any double strikes constitutes some evidence that the parties used their positions unfairly. Lopez v. Foremost Paving, Inc., 709 S.W.2d 643, 645 (Tex. 1986). Likewise, if the trial is hotly contested and the evidence is sharply conflicting, error from the improper allocation of peremptory challenges may result in a materially unfair trial without showing more. See Garcia, 704 S.W.2d at 737 (citing Patterson, 592 S.W.2d at 920); M.N.G., 2004 WL 1858135, at *7; see also Lopez, 709 S.W.2d at 644.
A review of the entire record in this case shows that the evidence presented at trial concerning L.H.'s conduct was not sharply conflicting. In fact, L.H. admitted as much:
Q. [L.H.], you've heard a lot of testimony in here about incidents and events that occurred, specifically about being arrested for DWI's and public intoxication.
Are you denying any of them?
A. No, ma'am.
Q. Are you denying that you have a problem?
A. No.
The only heavily disputed issue submitted to the jury concerned whether conditions had materially and substantially changed since the first termination trial in October 2000. Cf. Van Allen, 35 S.W.3d at 66 (holding review of entire record showed trial was hotly contested and that evidence was sharply conflicting). The record does not reveal, however, that TDFPS and the guardian ad litem utilized their alignment to influence this issue.
A review of voir dire also does not indicate that L.H. was prejudiced by the selection of any of the jurors on the panel. The jurors selected indicated that they would focus solely on the allegations. Venire member twenty-five asked for clarification regarding whether additional conduct against the child was necessary to move from foster care to adoption. Venire member three commented that if a situation happens occasionally and the parents are still supporting the child financially and emotionally, then that would not be a course of conduct. Venire member five admitted having a niece with a substance abuse problem and stated that she is doing wonderfully now and that people can get over their addictions. Moreover, the panel as a whole agreed that people with addictions can improve. Venire member twenty-five talked about his youngest daughter's battle with a mental illness and agreed that having a mental illness should not prevent a parent from raising his or her child.
Nothing in the voir dire indicates that the failure to apportion strikes among the parties resulted in a materially unfair trial that caused the rendition of an improper judgment. Moreover, L.H. does not state which conditional juror(s) she would have excluded or what attributes they posed that were unfavorable to her. We hold that, although L.H.'s complaint regarding peremptory challenges was not waived and the trial court erred in failing to equalize peremptory challenges among the parties, any error on the part of the trial court was harmless error and does not require reversal. See M.N.G., 2004 WL 1858135, at *8. We overrule L.H.'s first issue.
D. Ineffective Assistance of Counsel
In anticipation that we might overrule L.H.'s first issue for failure to preserve error, her second issue complains in the alternative that her trial counsel was ineffective for failing to preserve error with respect to the peremptory strike equalization issue. Because we have held that L.H. preserved error regarding her first issue, her second issue is moot, and we will not address it. See Tex.R.App.P. 47.1. Accordingly, we overrule L.H.'s second issue.
IV. Res Judicata and Related Claims
In issues three through six, L.H. argues that the trial court erred by denying her motion to dismiss the termination suit based on res judicata and that TDFPS failed to satisfy the requisites of section 161.004 of the Texas Family Code dealing with termination proceedings after the denial of a previous petition to terminate. TDFPS responds that section 161.004 essentially does away with res judicata in parental termination cases and that it complied with section 161.004.
A. Burden of Proof in Termination Proceedings
A parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); accord Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The United States Supreme Court, in discussing the constitutional stature of parental rights, states, "[T]he interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); J.T.G., 121 S.W.3d at 123. Nonetheless, while parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002); J.T.G., 121 S.W.3d at 123. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. C.H., 89 S.W.3d at 26; J.T.G., 121 S.W.3d at 123.
In proceedings to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, TDFPS must establish one or more of the acts or omissions enumerated under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2002); J.T.G., 121 S.W.3d at 123. Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); J.T.G., 121 S.W.3d at 123-24. Because of the elevated status of parental rights, the quantum of proof required in a termination proceeding is elevated from the preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 746, 102 S. Ct. at 1391; see also Tex. Fam. Code Ann. § 161.001.
Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 124. This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); J.T.G., 121 S.W.3d at 124; In re D.T., 34 S.W.3d 625, 630 (Tex.App.-Fort Worth 2001, pet. denied) (op. on reh'g). While the proof must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Addington, 588 S.W.2d at 570; J.T.G., 121 S.W.3d at 124. Termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. Holick, 685 S.W.2d at 20-21; J.T.G., 121 S.W.3d at 124; In re A.V., 849 S.W.2d 393, 400 (Tex.App.-Fort Worth 1993, no writ).
B. Standard of Review for Legal and Factual Sufficiency
The Texas Supreme Court recently clarified the appellate standards of review to be applied to legal and factual sufficiency of the evidence challenges in light of the clear and convincing evidence burden of proof in termination proceedings. J.F.C., 96 S.W.3d at 264-68 (discussing legal sufficiency review); C.H., 89 S.W.3d at 25 (discussing factual sufficiency review); J.T.G., 121 S.W.3d at 124. Because termination findings must be based upon clear and convincing evidence, not simply a preponderance of the evidence, the supreme court has held that the traditional legal and factual standards of review are inadequate. J.F.C., 96 S.W.3d at 265; C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 124. Instead, both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. J.F.C., 96 S.W.3d at 265-66; C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 124. With respect to a legal sufficiency point, we "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." J.F.C., 96 S.W.3d at 266; J.T.G., 121 S.W.3d at 124-25. In determining a factual sufficiency point, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder could reasonably form a firm conviction or belief that the parent violated one of the provisions of section 161.001 and that the termination of his or her parental rights would be in the child's best interest. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 25; J.T.G., 121 S.W.3d at 125.
C. Factually Sufficient Evidence That Circumstances Have Materially and Substantially Changed
In her third issue, L.H. contends that the evidence is factually insufficient to establish a material or substantial change in circumstances as required by section 161.004(a) of the Texas Family Code. Section 161.004(a) provides that
[t]he court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:
(1) the petition under this section is filed after the date the order denying termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.004. No definite guideline exists as to what evidence constitutes a material change of circumstances or conditions that affect the welfare of a child. Wright v. Wright, 610 S.W.2d 553, 555 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). A determination must be made in each case according to the circumstances as they arise. Id. In an analogous situation, such as modification of a custody decree, a material change of conditions exists where there has been a marriage of one of the parties, one of the parties becomes an improper person for custody, a change in the home surroundings has occurred, or some other similar material change of conditions. Leonard v. Leonard, 218 S.W.2d 296, 301 (Tex.Civ.App.-San Antonio 1949, no writ).
Although L.H. argues that the circumstances remained static between October 2000 and December 2003 (i.e., she was alcoholic and bipolar in 2000 and in 2003), the record demonstrates that her problems became more acute after the denial of the termination in October 2000. During the interim between the two trials, the police encountered L.H. on at least nine occasions. For instance, on January 4, 2001 and April 8, 2001, L.H. contacted the police to break up altercations between Schiska and herself. L.H. received a citation for simple assault/family violence as a result of the April 8, 2001 altercation. On April 29, 2001 and April 7, 2002, L.H. received public intoxication citations for her behavior. On April 12, 2002, L.H. received her second DWI citation. On the night of April 24, 2002, the police responded to a call regarding an argument between L.H. and Schiska and received another call a few hours later in the early morning hours of April 25, 2002, at which time they cited L.H. for another public intoxication violation. On May 1, 2002, L.H. received her third DWI citation. In early December 2003, police cited L.H. for driving while her license was suspended. Furthermore, just days before trial, L.H. brought inappropriate pictures to her visit with J.H. and had to be instructed by the caseworker to put them away.
These facts demonstrate that L.H. had not gotten her alcohol addiction under control. Rather than taking steps towards regaining possession of J.H., L.H. missed six of her monthly visits with J.H. in 2002. Moreover, L.H. made her last child support payment on or about April 11, 2002.
Giving due consideration to evidence that the fact finder could have found to be clear and convincing, and based on our review of the entire record, we hold that a reasonable trier of fact could have formed a firm belief or conviction that the circumstances had materially and substantially changed since the trial court rendered the October 2000 order. Accordingly, we hold that the evidence is factually sufficient to support the jury's finding that the circumstances had materially and substantially changed. We overrule L.H.'s third issue.
D. Trial Court Properly Denied Motion to Dismiss Based on Res Judicata
In her fourth issue, L.H. contends that the trial court erred by denying her motion to dismiss based on res judicata. L.H. relies on Slatton v. Brazoria County Protective Services Unit for her contention that res judicata bars the court's consideration of allegations proved in the October 2000 trial. 804 S.W.2d 550, 553 (Tex.App.-Texarkana 1991, no writ) (holding that prior denial of termination was not complete bar to subsequent action, but did bar admission of parents' conduct occurring prior to denial order). TDFPS responds that res judicata is inapplicable because the Department complied with section 161.004.
The question whether res judicata applies in a given instance is a mixed question of law and fact. Ex parte Myers, 68 S.W.3d 229, 231 (Tex.App.-Texarkana 2002, no pet.); Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex.App.-San Antonio 1996, no writ). When a matter involving both factual determinations and legal conclusions is decided by the trial court, Texas appellate courts generally use an abuse of discretion standard of review. Ex parte Myers, 68 S.W.3d at 231-32. In applying this standard, we defer to the trial court's factual determinations as long as they are properly supported by the record, and we review its legal determinations de novo. Pony Express, 921 S.W.2d at 820.
The legislature implemented Texas Family Code section 161.004 in 1995, TDFPS contends in response to concerns created by the res judicata holding in Slatton. See Tex. Fam. Code Ann. § 161.004; In re A.D.C., No. 04-02-00385-CV, 2003 WL 141133, at *1 (Tex.App.-San Antonio Jan. 22, 2003, no pet.) (not designated for publication); see also In re T.V., 27 S.W.3d 622, 624 n. 1 (Tex.App.-Waco 2000, no pet.) ("This provision [section 161.004] was passed in response to the concern created by the holding in Slatton."). As set forth above, section 161.004 allows a trial court to terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship only if (1) the petition is filed after the date the order denying termination was rendered, (2) the circumstances of a party affected by the order denying termination have materially and substantially changed since the date that the order was rendered, (3) the parent committed an act listed under section 161.001 before the date the order denying termination was rendered, and (4) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.004(a). Additionally, section 161.004(b) provides that "[a]t a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child." Id. § 161.004(b).
Here, the petition under section 161.004 was filed on April 4, 2003, which was after the October 20, 2000 order denying termination, satisfying section 161.004(a)(1). Id. § 161.004(a)(1). As previously shown, the evidence was factually sufficient to support the jury's finding that the circumstances had materially and substantially changed since the 2000 order was rendered, satisfying section 161.004(a)(2). Id. § 161.004(a)(2). Moreover, the jury from the first termination hearing in 2000 specifically found that L.H. knowingly placed and knowingly allowed J.H. to remain in conditions and surroundings which endangered his physical and emotional well-being, satisfying section 161.004(a)(3)'s requirement that the parent must have committed an act in violation of section 161.001 before the order denying termination was rendered. Id. § 161.004(a)(3). And, finally, the jury found that termination of L.H.'s parental rights was in the best interest of J.H., satisfying section 161.004(a)(4). Id. § 161.004(a)(4).
In sum, TDFPS complied with the provisions of section 161.004(a). Id. § 161.004(a). After TDFPS satisfied section 161.004(a), the trial court was statutorily authorized under subsection (b) to consider all of the evidence presented at the previous termination suit between L.H. and J.H. Id. § 161.004(b). This statutory authorization permitting consideration of the same evidence previously presented during the prior termination trial defeats L.H.'s res judicata claims. Cf. T.V., 27 S.W.3d at 625 (Vance, J., concurring) (stating that section 161.004 was designed to eliminate argument that evidence of events prior to earlier order denying termination cannot be considered). We hold that the trial court did not abuse its discretion by denying L.H.'s motion to dismiss based on res judicata. We overrule L.H.'s fourth issue.
E. Legally and Factually Sufficient Evidence of Section 161.001 Acts
Section 161.001(1) lists nineteen acts that justify termination when coupled with a finding that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1) (A)-(S). Some of the acts listed include knowingly placing or knowingly allowing the child to remain in conditions or surroundings that endanger the child's physical or emotional well-being, engaging in conduct or knowingly placing the child with persons who engage in conduct that endangers the child's physical or emotional well-being, and failing to support the child in accordance with one's ability during a period of one year ending within six months of the date of the filing of the petition. Id. § 161.001(1)(D)-(F).
Under her fifth and sixth issues, L.H. argues that (1) the jury in 2003 was required to find that the jury in 2000 found that at least one section 161.001 ground for termination existed and (2) that no evidence, or alternatively factually insufficient evidence, exists in the present record as to what acts the jury in 2000 found. Section 161.004(a)(3) reads, "The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if . . . the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered." Tex. Fam. Code Ann. § 161.004(a)(3).
Here, TDFPS filed its second petition to terminate L.H.'s parental rights to J.H. under the same cause number as the prior suit because there was an ongoing case in which TDFPS was continuing to be managing conservator of J.H. Thus, the clerk's record before us and before the trial court contains the court's charge from the first termination trial. The court's charge reflects that the jury affirmatively found that L.H. "knowingly placed or knowingly allowed the child, [J.H.], to remain in conditions or surroundings which endangered the physical or emotional well-being of [J.H.]." Thus, the prior jury found that L.H. committed an act listed under section 161.001 before the date the order denying termination was rendered. See id. The prior jury's finding that L.H. committed an act listed under section 161.001 before the order denying termination was rendered is sufficient to satisfy section 161.004(a)(3)'s requirement. Id. We overrule L.H.'s fifth and sixth issues.
V. Legally and Factually Sufficient Evidence Regarding Endangering Course of Conduct
In her ninth and tenth issues, L.H. contends that the evidence is legally and factually insufficient under section 161.001(1)(E) of the Texas Family Code to show that she engaged in conduct or knowingly placed J.H. with persons who engaged in conduct that endangered his physical or emotional well-being.
In proceedings to terminate the parent-child relationship brought under section 161.001 of the family code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Id. § 161.001(1); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Boyd, 727 S.W.2d at 533.
Endangerment means to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125; see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under section 161.001(1)(E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. J.T.G., 121 S.W.3d at 125. Additionally, termination under section 161.001(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. Tex. Fam. Code Ann. § 161.001(1)(E); J.T.G., 121 S.W.3d at 125.
However, it is not necessary that the parent's conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex.App.-Fort Worth 2004, pet. denied). As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. R.W., 129 S.W.3d at 739. Drug use and its effect on a parent's life and her ability to parent may establish an endangering course of conduct. Id. Further, a parent's mental state may be considered in determining whether a child is endangered if that mental state allows the parent to engage in conduct that jeopardizes the physical or emotional well-being of the child. Id.
The record reveals a pattern of continued domestic violence and alcohol abuse involving L.H.L.H. admitted that she had to call the police to intervene in some of the fights that she had with Schiska because he was physically abusive towards her. She described the incident that occurred on January 2001 when Schiska punched in her in the back and another incident on April 8, 2001 when Schiska struck her all over her body. In April 2002, police intervened twice due to arguments between L.H. and Schiska, including a fight where L.H. sought refuge in a neighbor's apartment. Yet, L.H. admitted that she continued to see Schiska after the altercations and that she relied on him for transportation to the December 2003 trial.
The evidence demonstrates that L.H. continuously abused alcohol, despite her knowledge that she was not allowed to drink alcohol with her depression medication. Alcohol played a key role in the domestic violence events described above. L.H.'s abuse of alcohol led to three citations for public intoxication and three DWI convictions, including the DWI where L.H. ran off the road with J.H. in the car.
The record also suggests that L.H. often lacked emotional stability. L.H. admitted to police officers and CPS caseworkers that came into contact with her that she suffered from depression and had been diagnosed as bipolar. Often, L.H. quoted the Bible and justified dangerous actions by saying that she was protected by God.
L.H. displayed emotional instability when Dean attempted to get her an alcohol assessment in March 1999. An alcohol assessment at All Saints Hospital was arranged for L.H. while she was at Charter Hospital. Dean told L.H. that Dean would follow L.H. home from Charter, take her to see J.H., and then take her to the alcohol assessment at All Saints. L.H. drove away, not waiting for Dean to follow her. When Dean arrived at L.H.'s apartment, she was on the phone, talking in "hyper speech." Dean had to tell L.H. step-by-step what to pack for J.H. and L.H. because L.H. could not seem to comprehend what was involved in packing for two people. During the drive from L.H.'s apartment to see J.H., L.H. went from being calm to suddenly clapping very loudly and squealing that she was going to see her baby. Initially during the visit with J.H., L.H. acted appropriately; then she started hollering loudly, accusing Dean of speaking evil about her. According to Dean, L.H. exhibited erratic behavior, her face became very red and her eyes really glassy, and she had a disheveled appearance. L.H. began to scream and grabbed J.H. when Dean said that they needed to end the visit and go to the hospital.
L.H.'s MHMR worker thought that L.H. might become suicidal if she did not get to see J.H. that day.
On the ride to the hospital, L.H. went from tearful and loud to calm and stated that she was starving to death and had not eaten in days. Dean stopped and purchased food for L.H. After eating, L.H. started clapping loudly and hollering "I'm so sick," whispered that she had laryngitis, and went back to screaming Scriptures and a sequence of numbers. L.H. also grabbed and pinched at her genital area and said that it itched badly. During this time, Dean became concerned for her own safety and called her mother to let her know that she was taking a client to All Saints.
Once at the hospital, L.H.'s condition became more extreme. She dropped her bags and started hopping and skipping like a child. While they were checking in, L.H. screamed and rambled and then whispered her sequence of numbers. She would not sit upright in the chairs and continued picking at her crotch. During the wait before the assessment, L.H. stated that she had to use the bathroom and then started dancing. After she came back from the bathroom, she pulled down her sweat pants. All Saints admitted L.H. to the psychiatric unit because she was having a psychotic episode due to mixing alcohol with her psychotropic medication and not having slept in several days.
During the ride to see J.H., L.H. admitted drinking alcohol before going to Charter and again before Dean picked her up at her apartment.
L.H. contends that none of the incidents of bad conduct after October 2000 occurred in J.H.'s presence because he was in the possession of his foster parents. However, as mentioned above, section 161.004(a)(3) specifically requires the trial court to find that the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered. Tex. Fam. Code Ann. § 161.004(a)(3). Consequently, the trial court was free to look at the events from September 1996, March 1999, and March 2000 in making its determination. Moreover, L.H. showed J.H. inappropriate pictures just two days before trial.
We have carefully reviewed the entire record. Looking at all the evidence in the light most favorable to the jury's finding, giving due consideration to evidence that the fact finder could have found to be clear and convincing, we hold that a reasonable trier of fact could have formed a firm belief or conviction that L.H. engaged in conduct or knowingly placed J.H. with persons who engaged in conduct that endangered his physical or emotional well-being. See R.W., 129 S.W.3d at 743-44; J.T.G., 121 S.W.3d at 127; see also In re Uvalle, 102 S.W.3d 337, 343-44 (Tex.App.-Amarillo 2003, no pet.) (holding evidence factually sufficient to support termination of mother's parental rights where alcoholism and drunk driving evidence supported conduct theory of termination).
L.H. also challenges the legal and/or factual sufficiency of the two remaining statutory grounds for termination found by the trial court. However, only one finding under section 161.001(1) is necessary to support a judgment of termination. Tex. Fam. Code Ann. § 161.001(1); In re J.J.O., 131 S.W.3d 618, 630 (Tex.App.-Fort Worth 2004, no pet.); see also Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh'g). Accordingly, because we hold that there is both legally and factually sufficient evidence to support the trial court's finding under family code section 161.001(1)(E), we need not address L.H.'s seventh, eighth, and eleventh issues pertaining to the trial court's findings under section 161.001(1), subsections D and F. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (F); Tex.R.App.P. 47.1; J.J.O., 131 S.W.3d at 630. We overrule L.H.'s ninth and tenth issues.
VI. Termination Was In J.H.'s Best Interest
In her twelfth issue, L.H. contends that the evidence is factually insufficient to show best interest. Specifically, L.H. argues that there was no evidence that J.H.'s foster parents were unwilling to continue in their capacity as foster parents; therefore, L.H. maintains that the status quo was in J.H.'s best interest until such time as his foster placement was threatened.
The record does not support L.H.'s argument. All other children in J.H.'s foster family, other than his foster parents' biological children, had been adopted. Therefore, there is no reason to believe that the foster family wanted to continue to keep up the requirements for their foster license.
A strong presumption exists that the best interest of a child is served by keeping custody in the natural parent. In re W.E.C., 110 S.W.3d 231, 240 (Tex.App.-Fort Worth 2003, no pet.). The fact finder may consider a number of factors in determining the best interest of the child, including the following: the desires of the child, the present and future physical and emotional needs of the child, the present and future emotional and physical danger to the child, the parental abilities of the person(s) seeking custody, programs available to assist those persons in promoting the child's best interest, plans for the child by those individuals or by the agency seeking custody, the acts or omissions of the parent that may indicate that the existing parent-child relationship is not appropriate, and any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); W.E.C., 110 S.W.3d at 240.
"Best interest" does not require proof of any unique set of factors, nor does it limit proof to any specific factors. Holley, 544 S.W.2d at 371-72; W.E.C., 110 S.W.3d at 240. Quite often, the best interest of the child is infused with the statutory offensive behavior. W.E.C., 110 S.W.3d at 240. While there are instances where the offending behavior will demand termination of parental rights, there are also those cases where the best interest determination must have a firm basis in facts standing apart from the offending behavior. Id. Although such behavior may reasonably suggest that a child would be better off with a new family, the best interest standard does not permit termination merely because a child might be better off living elsewhere. Id. Termination should not be used to merely reallocate children to better and more prosperous parents. Id.
J.H. did not testify at trial. However, the evidence demonstrates that he told his foster mom that he wants her and her husband to be his parents. Additionally, Barrientes testified that she believes that J.H. wants to be adopted because he has bonded with his foster family and refers to them as his mom, dad, and brothers. Moreover, she believes that termination is in J.H.'s best interest because foster children desire permanency.
The record did not reveal that J.H. had any special physical or emotional needs. His foster mother testified that in the event L.H.'s parental rights were terminated, J.H. would receive counseling to deal with the termination.
The endangering course of conduct discussion above addressed the present and future physical and emotional dangers to J.H., as well as L.H.'s parental abilities and acts and omissions. L.H.'s erratic behavior — resulting from her abuse of alcohol and her failure to properly take her psychotropic medications as directed — led to citations for public intoxication and DWIs and eventually resulted in missed visits with J.H. Moreover, L.H.'s continued relationship with Schiska, in which the police intervened on several occasions, also placed J.H. at risk for harm. Therefore, TDFPS's plan for J.H. was to terminate L.H.'s parental rights and place him for adoption with his foster parents, which would provide the permanency lacking under the status quo.
If he were to remain in foster care, J.H. would have a caseworker for the rest of his childhood and would be in TDFPS's permanent custody until age eighteen. Consequently, any trips with the foster family or trips to camp would have to be approved by the court.
Giving due consideration to evidence that the fact finder could have found to be clear and convincing, and based on our review of the entire record, we hold that a reasonable trier of fact could have formed a firm belief or conviction that the termination of L.H.'s parental rights would be in J.H.'s best interest. See W.E.C., 110 S.W.3d at 247. Accordingly, we hold that the evidence is factually sufficient to support the jury's best interest finding. We overrule L.H.'s twelfth issue.
VII. Conclusion
Having overruled all of L.H.'s issues, we affirm the trial court's judgment.
Because the plain language of the statute does not require, as L.H. submits, that we determine that the jury in 2000 found at least one ground under section 161.001(1), we review the evidence presented to the 2003 jury regarding acts committed by L.H. before the 2000 trial.
L.H. contends that the jury in the present termination suit must make section 161.004(a)(3)'s finding that L.H. committed a section 161.001 act prior to the order denying termination. Because TDFPS established that the jury in the prior termination suit found that L.H. committed a section 161.001 act, (but found that termination was not in J.H.'s best interests), TDFPS in this case satisfied section 161.004(a)(3).
At the December 2003 trial, the jury heard evidence regarding an event in 1996 where L.H. left J.H. in the bathtub while she took a phone call. [RR3:108-09, 113] J.H. stopped breathing after submerging under the water. He was resuscitated, rushed to the hospital, and required to stay overnight. [RR3:110-11] The CPS caseworker investigating the incident ruled the case "reason to believe for medical neglect and neglectful supervision." [RR3:118] The 2003 jury also heard testimony about two incidents involving L.H. and J.H. that occurred in March 1999. The evidence showed that on March 4, 1999, L.H. drove J.H. to a restaurant while she was drunk. [RR3:73-74, 77] L.H. admitted to the police officer that she knew not to take her manic-depressive medications with alcohol. [RR3:79] Family friends came to pick up J.H., and officers arrested L.H. and cited her for public intoxication because she posed a threat to herself and others and was not capable of taking care of J.H. in her condition. [RR3:78, 88] The evidence demonstrated that eleven days later L.H. drove into a ditch while she was intoxicated. [RR3:92-93, 98] She left J.H., who was partially strapped in a car seat in the back of the vehicle in the ditch, while she went down the block to the restroom. [RR3:94, 99] Again, family friends had to pick up J.H. [RR3:104] L.H. received a DWI conviction for her actions involving this incident. [RR3:100] Furthermore, the record revealed that on March 1, 2000, L.H. put J.H. at risk by running down the highway with him on her shoulders. [RR4:94]
Having carefully reviewed the entire record, looking at all the evidence in the light most favorable to the jury's finding and giving due consideration to evidence that the fact finder could have found to be clear and convincing, we hold that a reasonable trier of fact could have formed a firm belief or conviction that L.H. committed one of the termination-justifying acts listed in Texas Family Code section 161.001 before the trial court denied termination at the October 2000 trial. See J.T.G., 121 S.W.3d at 128.