Opinion
NUMBER 13-17-00500-CV
02-08-2018
IN THE INTEREST OF M.P. AND S.J.P., CHILDREN
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Contreras
This appeal concerns the termination of parental rights to minor children M.P. and S.J.P. Appellants S.P., the children's biological father, and J.G., their biological mother, each contend by three issues that: (1) the trial court erred by allowing testimony by a witness who violated the sequestration rule, (2) the evidence was insufficient to show that termination was in the children's best interests, and (3) the evidence was insufficient to show endangerment under subsection 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) (West, Westlaw through 2017 1st C.S.). We affirm.
We refer to appellants and the children by their initials in accordance with the rules of appellate procedure. See TEX. R. APP. P. 9.8(b)(2).
I. BACKGROUND
M.P. and S.J.P. were born in Beeville on September 6, 2016. Evidence at trial in August 2017 reflected that the children were born with "respirational distress" and were immediately taken to the neonatal intensive care unit at Christus Spohn South Hospital in Corpus Christi. The children were not drug-tested and they were discharged a few weeks later with no diagnosis.
Amanda Mason, an investigator with the Department of Family and Protective Services (the Department) testified that the Department received a referral the day after the children's birth based on an interview conducted by a Department caseworker with J.G. at the hospital in Beeville. The caseworker reported to Mason that J.G. had difficulty answering simple questions and could not say if she had help to care for the children at home. According to Mason, J.G. reported that she has been diagnosed with schizophrenia, bipolar disorder, and mild intellectual and developmental disorder, but was not then under the care of any mental health professional or taking any medication. Mason stated that, according to her investigation, J.G. had been arrested on twenty-two separate occasions between 2002 and 2010 for various offenses including assault, evading arrest, and criminal trespass. However, none of J.G.'s arrests resulted in convictions. Mason further testified that, in 2002, J.G. had a child removed from her care "after she was threatening to stab her mother" while holding the child. Her parental rights to that child were terminated after a trial.
Mason testified that S.P. has demonstrated a "pattern of alcohol usage in his life" and has been arrested twenty-eight times since 1997 for various offenses including driving while intoxicated and burglary, seven of which resulted in convictions. Mason met with S.P.'s parents, who indicated that they would be willing to care for the children if a paternity test confirmed that S.P. was their father.
The Department determined that removal was in the children's best interest, obtained an ex parte order of removal from a judge, and filed a petition to terminate J.G.'s and S.P.'s parental rights. The children were removed immediately after being discharged from the hospital and were placed with a foster family.
Jennifer Knapp, the Department caseworker, testified that there were "issues" with the "appropriateness and the cleanliness and safety" of J.G.'s home and with "her ability to parent"; therefore, she recommended parenting classes, individual counseling, and a psychiatric evaluation. Knapp observed that J.G.'s home was "very cluttered," often had dog feces on the floor, and "would not have been able to house any cribs or infants." In the three or four months prior to trial, J.G. would not allow Knapp into her home. Knapp stated that J.G. received a psychological evaluation, saw a psychiatrist, and was prescribed medication for schizophrenia and bipolar disorder, but she does not take the medication consistently. J.G. and S.P. attended a parenting class but J.G. had to be removed from the class when she got into a physical altercation with S.P. J.G. attended nine counseling sessions overall, but then "stopped going" in March 2017. According to Knapp, J.G. did not demonstrate that she learned anything in counseling; instead, the counseling confirmed that J.G.'s preferred way to handle conflicts was to resort to aggression and violence.
The counselor testified that J.G. could not retain information from one session to the next.
S.P. completed a psychiatric evaluation and was diagnosed with bipolar disorder and anxiety disorder; however, he has not followed up with recommendations for therapy. According to Knapp, S.P. did not attend all parenting classes and did not demonstrate that he learned anything from the classes he did attend.
Knapp testified that both children suffer from several medical issues. M.P. was diagnosed with fetal alcohol syndrome; acid reflux; chronic constipation; two heart murmurs; chronic otitis media, or narrowing of the ear canals; and absence of the corpus collosum, a rare birth defect in which the tissue connecting the two sides of the brain fails to develop. S.J.P. has a hernia which has been operated on; acid reflux; two heart murmurs; narrowing of the eye duct; and fetal alcohol syndrome. S.J.P. suffers from several neurological abnormalities, including hypotomia, where the child is unable to control his extremities; a subdural hematoma; facial nerve disorder; enlarged subarachnoid spaces; and suspected cerebral palsy. According to Knapp, because of these abnormalities, if S.J.P. is moved "harshly or too quickly or in an aggressive manner," he could develop brain bleeding which could be fatal. Both children will need braces on their feet to be able to walk. Knapp opined that J.G. "endangered the babies prior to birth by consuming alcohol."
After conducting interviews with J.G. and observing her interact with the children, Knapp concluded that J.G. did not "understand how to care for infants," and she believed that this inability was not simply because J.G. is intellectually disabled. Knapp stated that, although J.G. "attempts to care" for the children, she gets "frustrated very easily" and does not understand the children's basic needs—for example, she does not recognize when they are hungry or when they would need their diapers changed. Additionally, during a visit with the children, J.G. unintentionally caused S.J.P. to suffer a brain bleed by "rocking [him] very vigorously." The visitation facility informed Knapp that they were not comfortable supervising further visits because J.G., S.P., and S.P.'s parents would not follow directions. Knapp testified that subsequent visits took place at the Department's Beeville office, where caseworkers remained "within arm[']s distance of the babies at all times." Eventually, the Department asked the visitations to be suspended. Knapp testified that the children did not recognize J.G. or S.P. at their last visit.
On cross-examination, Knapp conceded that she did not have any documentation or medical evidence establishing that the brain bleed was the result of J.G.'s actions.
Knapp testified that S.P. is "very nervous" around the children and has repeatedly expressed his desire not to hold them. He would not hold the infants for more than a few minutes at a time, and at one point asked if it was possible to "abort" them. According to Knapp, S.P. repeatedly told her and other Department personnel that he does not believe he can care for the babies and that he wanted his parental rights to be terminated. S.P.'s mother had to be reminded several times how to hold the children, and it appeared to Knapp that S.P.'s parents did not believe that the children actually suffered from the ailments they were diagnosed with.
Both appellants were subjected to drug testing during the pendency of the case. J.G. consistently tested negative; S.P.'s urinalysis tested negative, but his hair follicles tested positive for cocaine. Knapp stated that she spoke to a clerk at a vitamin store who recalled selling S.P. "a product to clean his urine." S.P. did not comply with four other requests made by the Department for drug tests. At one point when Knapp visited J.G.'s and S.P.'s apartment, J.G. reported that S.P. had left with his friends to use drugs. When asked what kind of drugs they use, J.G. reported that S.P. "sniffs the white stuff and smokes the brown stuff."
S.P. moved back and forth from San Antonio to Castroville to Beeville throughout the pendency of the case, but he did not keep Knapp informed of his whereabouts. J.G., on the other hand, regularly kept contact with Knapp. S.P. has not provided proof of regular employment. J.G. is not employed but receives supplemental security income (SSI) benefits.
The children have been in the care of a foster family in Corpus Christi since September 29, 2016, and although they still suffer from health problems, they are attending therapy and improving, according to Knapp. The foster mother is a nurse and both foster parents have indicated that they would be willing to adopt the children, which would only be possible if appellants' parental rights were terminated. Knapp stated that the Department did not place the children with S.P.'s parents because of their behavior at the visits, as well as the fact that the Department received calls during the pendency of the case from associates of S.P.'s parents who alleged that they had abused S.P. as a child.
Knapp testified that S.P. confirmed these reports of abuse to her, but S.P. denied them at trial.
J.G. testified that she drank alcohol up until her first pre-natal doctor's visit on June 30, 2016, and she admitted using cocaine with S.P. after the children were born. She stated that she does not take her prescribed medications because "they don't help." J.G. stated that she believes S.J.P. has "speech" problems but she does not think M.P. has any health issues. She stated that, if she were to retain her parental rights, she would move with the children to San Antonio to live with S.P.'s parents.
S.P. admitted using cocaine during the pendency of the case, but he denied that J.G. drank or used drugs around him.
Cassandra Krueger testified that she is the supervisor for John Perez, the court-appointed special advocate (CASA) and guardian ad litem that was assigned to the case. Krueger agreed that she "t[ook] over the case" because Perez took a job in a different city. Krueger testified that Perez's recommendation was for J.G.'s and S.P.'s parental rights to be terminated and for the children to be placed with non-relatives. According to Krueger, Perez "was one of the last people to change his mind for termination because he was hoping that a family member could be found." Following Krueger's testimony, S.P.'s counsel made the following objection in a bench conference:
Judge, Ms. Krueger testified, first I knew of it, that she was not the guardian ad litem, that somebody else was guardian ad litem. My understanding was that she had taken over in that position. At the hearing, she testified she wasn't the guardian ad litem. She's been sitting in here during the whole trial in violation of the Rule. Because of that, I object to her testimony and I ask the Court to instruct the jury to disregard her testimony.The trial court overruled the objection.
The jury found by clear and convincing evidence that both appellants: (1) knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of their removal for abuse or neglect. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (b)(1)(E), (b)(1)(O). The jury additionally found by clear and convincing evidence that J.G.: (1) had her parental rights terminated with respect to another child based on a finding that her conduct was in violation of parts (D) or (E) of family code subsection 161.001(b)(1); and (2) 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 eighteenth birthday, despite at least six months of reasonable efforts to return the children to her. See id. § 161.001(b)(1)(M); id. § 161.003 (West, Westlaw through 2017 1st C.S.). Finally, the jury found by clear and convincing evidence that termination of each appellant's parental rights was in the children's best interest. See id. § 161.001(b)(2). This appeal followed.
II. DISCUSSION
A. Witness Sequestration Rule
By their first issues, S.P. and J.G. contend that the trial court erred by allowing Krueger to testify despite her violation of the witness sequestration rule, which was invoked by S.P.'s counsel prior to trial.
Appellants contend by this issue that the final report of Perez, the appointed guardian ad litem, was improperly disclosed to the jury. However, the record shows that his entire report was not entered into evidence. Instead, Krueger testified only briefly about Perez's general recommendation.
"The rule" provides that a trial court must, on a party's request, order witnesses excluded from the courtroom so that they cannot hear other witnesses' testimony. TEX. R. EVID. 614; TEX. R. CIV. P. 267 (containing certain exceptions not applicable here). The rule is designed to prevent witnesses from altering their testimony, consciously or not, based on the testimony of other witnesses. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). When the rule is invoked, witnesses must be instructed that "they are not to converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case." TEX. R. CIV. P. 267. Any witness or other person violating such instructions may be punished for contempt of court. Id.
Although a trial court must exclude witnesses covered by the rule upon a party's request, "the court's decision to allow testimony from a witness who has violated the rule is a discretionary matter." Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996) (per curiam); Walker v. State, 461 S.W.3d 599, 607 (Tex. App.—Houston [1st Dist.] 2015, no pet.). "In reviewing the trial court's decision to allow the testimony, we look at whether or not the defendant was harmed or prejudiced by the witness's violation; that is, whether or not the witness's presence during other testimony resulted in injury to the defendant." Bell, 938 S.W.2d at 50. The complaining party must show that what the witness improperly heard influenced or at least "colored" her testimony. Walker, 461 S.W.3d at 607 (citing Bell, 938 S.W.2d at 50-51).
Assuming but not deciding that Krueger violated the rule and that both appellants preserved this issue for appeal, we nevertheless conclude that the trial court's overruling of counsel's objection was not reversible error. Neither appellant's trial counsel attempted to show that Krueger heard any evidence which influenced or colored her testimony. See id. The record shows, instead, that Krueger's testimony was very brief and consisted entirely of reciting the recommendations that the guardian ad litem had already made—i.e., for termination of parental rights and placement with a non-relative. Krueger testified that she reviewed the case monthly with Perez, but she was not asked and did not testify about any specific facts concerning appellants which would have been the subject of testimony by prior witnesses. Under these circumstances, we conclude that the trial court did not abuse its discretion by allowing Krueger to testify despite her violation of the rule. See Bell, 938 S.W.2d at 50. J.G.'s and S.P.'s first issues are overruled.
Under the Texas Family Code, a guardian ad litem appointed for a child is entitled to attend all legal proceedings in a case and to testify in court regarding the guardian's recommendation. See TEX. FAM. CODE ANN. § 107.002(c)(4), (c)(6) (West, Westlaw through 2017 1st C.S.). This specific provision prevails over the more general language contained in the rules of evidence. In re K.C.P., 142 S.W.3d 574, 585 (Tex. App.—Texarkana 2004, no pet.) (citing TEX. GOV'T CODE ANN. § 311.026 (West, Westlaw through 2017 1st C.S.) (providing generally that, for purposes of statutory construction, a "special or local provision" prevails over a general provision)). However, as S.P.'s counsel noted at trial, Krueger was not the guardian ad litem appointed for the children; rather, Perez was. Krueger testified that she was Perez's supervisor and took over the case when Perez took another job, but she conceded that Perez was still "legally" the guardian ad litem at the time of trial.
B. Evidentiary Sufficiency
1. Standard of Review and Applicable Law
Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.). "Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the 'death penalty' of civil cases." In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). Accordingly, termination proceedings must be strictly scrutinized. Id. at 112. In such cases, due process requires application of the "clear and convincing" standard of proof. Id. (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This intermediate standard falls between the preponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as 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 (West, Westlaw through 2017 1st C.S.).
In reviewing the legal sufficiency of evidence supporting termination, 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." In re J.L., 163 S.W.3d at 85; In re L.J.N., 329 S.W.3d at 671. We must assume that the fact finder resolved disputed facts in favor of its finding if it was reasonable to do so and must disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence, if any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C., 96 S.W.3d at 266 ("Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.").
When reviewing the factual sufficiency of the evidence supporting termination, we determine "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [Department]'s allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In conducting this review, we consider whether the disputed evidence is such that a reasonable finder of fact could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that: (1) the parent committed an act or omission described in family code subsection 161.001(b)(1); and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
2. Best Interests
S.P.'s second issue and J.G.'s third issue contend that there was legally and factually insufficient evidence to support the trial court's finding that termination of their parental rights was in the children's best interest.
There is a strong, though rebuttable, presumption that keeping a child with a parent is in the child's best interest. TEX. FAM. CODE ANN. § 153.131 (West, Westlaw through 2017 1st C.S.); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Factors that we consider in determining whether termination of parental rights is in the child's best interest include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parenting abilities of the parties seeking custody; (5) the programs available to assist the parties seeking custody; (6) the plans for the child by the parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions committed by the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions committed by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The party seeking termination is not required to prove all nine Holley factors; in some cases, undisputed evidence of just one factor may be sufficient to support a finding that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 25, 27.
S.P. and J.G. each argue that there was "no evidence" that "the children had been negatively affected in any way by [them]," that the children were likely to be "negatively affected by [them]" in the future, or that they "had failed to protect the children or would be likely to in the future." We disagree.
The evidence in this case established that J.G. exhibits cognitive deficiencies and a lack of self-control stemming from her diagnosed mental illnesses. She is either unwilling or unable to address her conditions by complying with the instructions of professionals, such as the doctors who prescribed medications. J.G. admitted that she drank alcohol during pregnancy and used cocaine after the children were born. After a scheduled visit with the children, S.J.P. was diagnosed with brain bleeding, and Knapp testified that this was because J.G. was rocking the child "very vigorously." According to Knapp, J.G. does not understand the children's basic needs.
S.P. has issues with alcohol and drug abuse that date back decades, and he tested positive for cocaine use during the pendency of the case. A parent's drug use supports a finding that termination is in the best interest of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.); In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.) (noting that the fact-finder can give "great weight" to the "significant factor" of drug-related conduct by a parent). S.P. does not have a stable residence or employment. He told the Department's caseworker that he did not believe he could care for the babies, he could not hold them for long periods of time during the visits, and he once asked if it was possible to "abort" the children after their birth.
From all of this evidence, it is apparent that neither J.G. nor S.P. have the skills necessary to safeguard young children from emotional or physical danger, especially young children with special needs such as M.P. and S.J.P. Further, given the patterns of behavior exhibited by J.G. and S.P. in the past, including the extensive arrest records, it is exceedingly unlikely that either have the wherewithal or capability to obtain such skills in the future. On the other hand, the evidence established that the children are well-cared for in their foster home and that the foster parents intend to seek adoption. A child's need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in determining best interest. In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.); see In re R.S.-T., 522 S.W.3d 92, 113 (Tex. App.—San Antonio 2017, no pet.); see also In re J.L.J., No. 13-16-00562-CV, 2017 WL 711644, at *5 (Tex. App.—Corpus Christi Feb. 23, 2017, no pet.) (mem. op.). A factfinder may consider the consequences of failure to terminate parental rights and may also consider that the children's best interest may be served by termination so that adoption may occur, rather than the impermanent foster-care arrangement that would result in the absence of termination. See In re K.C., 219 S.W.3d at 931; see also J.R. v. Tex. Dep't of Family & Protective Servs., No. 03-15-00108-CV, 2015 WL 4603943, at *6 (Tex. App.—Austin July 30, 2015, pet. denied) (mem. op.).
We conclude that a reasonable juror could have formed a firm belief or conviction that termination of J.G.'s and S.P.'s parental rights is in the best interests of both children, and the contrary evidence was not so significant as to preclude such a finding. See In re J.L., 163 S.W.3d at 85; In re J.F.C., 96 S.W.3d at 266. The evidence was therefore legally and factually sufficient to rebut the strong presumption that keeping the children with their biological parents is in their best interest. S.P.'s second issue and J.G.'s third issue are overruled.
3. Endangerment
J.G.'s second issue and S.P.'s third issue each argue that there was legally and factually insufficient evidence to support the jury's findings, under parts (D) and (E) of family code section 161.001(b)(1), that they (1) knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being or (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (b)(1)(E). However, "[o]nly one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Here, in addition to finding that both appellants violated parts (D) and (E) of section 161.001(b)(1), the jury also found that J.G. violated parts (M) and (O) and S.P. violated part (O) of that statute. See TEX. FAM. CODE ANN. § 161.001(b)(1)(M), (b)(1)(O). Appellants do not challenge those findings on appeal. Because we have already concluded the evidence was sufficient to support the jury's findings as to best interests of the children, and at least one ground found by the jury as to each appellant is unchallenged on appeal, we need not address whether the evidence supported the specific findings under parts (D) and (E). See In re A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1. We overrule J.G.'s second issue and S.P.'s third issue.
III. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS
Justice Delivered and filed the 8th day of February, 2018.