Opinion
No. 04-16-00744-CV
05-03-2017
IN THE INTEREST OF S.J.J. and C.M.J., Children
MEMORANDUM OPINION
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02907
Honorable Peter A. Sakai, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Anna appeals the trial court's termination of her parental rights to S.J.J. (born in 2010) and C.M.J. (born in 2012). She argues (1) the trial court erred by denying one of her motions for continuance; and (2) there is legally and factually insufficient evidence that termination of her parental rights is in the children's best interest. We affirm the trial court's judgment.
To protect the identity of the minor children, we refer to the children's parents by their first names and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 8(b)(2).
BACKGROUND
On December 4, 2013, Anna stabbed the children's father, Toni, numerous times in S.J.J.'s presence. C.M.J. was in her crib at the house during the incident. A police officer arrived at the house, banged on the door, and waited approximately ten seconds before opening the unlocked front door and going inside. The officer saw Toni lying on the floor, and Anna was kneeling over Toni with a knife in her hand.
Toni told the officer he was trying to leave the house when Anna stabbed him numerous times; she waited twenty minutes before calling the police; and after the officer started knocking on the door, Anna stabbed him three more times. Toni asked the officer to call his brother to come get the children. An emergency helicopter transported Toni to a hospital where he later died from his injuries. Anna was arrested, and her sisters took the children to a hotel for several days. Anna's family refused to let appellees, Toni's parents and his brother Sam, see the children except through a videoconferencing application.
On December 9, 2013, appellees filed suit seeking termination of Anna's parental rights and managing conservatorship of the children. The trial court appointed appellees as the children's temporary joint managing conservators and Anna as temporary possessory conservator, and ordered that the children be placed in appellees' care. The trial court also ordered Anna to make monthly child support to appellees, and ordered that the children receive therapy while the case was pending.
Anna retained counsel, but counsel filed a motion to withdraw on March 18, 2014, and the trial court granted the motion. Anna retained other counsel, who filed a motion for continuance on May 5, 2014. The motion alleged Anna retained counsel "the day before trial," Anna had just been indicted for murder, and counsel needed additional time to prepare [and] conduct discovery." The record does not contain an order on the motion for continuance, but the trial did not commence in May 2014. In June 2014, Anna's newly retained counsel filed a motion to withdraw, which the trial court granted.
The trial court reset the trial date for October 6, 2014. In September 2014, the parties agreed to a continuance, and trial was again reset for January 12, 2015. The trial did not commence on January 12, 2015, and the record contains no filings until February 16, 2016, when appellees filed a motion for pretrial order. Appellees' motion alleged Anna pled guilty to murder and the trial court had appointed Anna counsel in this proceeding, but her counsel was suspended from the practice of law.
The trial court appointed Anna different counsel on March 10, 2016. On June 23, 2016, Anna's counsel filed a motion for Anna to be bench warranted for trial. The motion stated a hearing on the merits of the case was set for August 8, 2016. The trial court's order on the motion also stated the trial was set for August 8, 2016.
On August 5, 2016, Anna filed a verified motion for continuance in which counsel swore he was informed trial was set for October 24, 2016, but the trial date was accelerated to August 8, 2016, without his input. Counsel further swore he had five other settings the week of the trial; he had been out of town on a vacation for two weeks in July 2016; and Anna was transported to the Bexar County jail only four days before trial, at which time counsel was attending the Advanced Family Law Seminar. Counsel went to the Bexar County jail to meet with Anna immediately after the last day of the seminar, and "[b]ased on that meeting, [he] require[d] some additional time to prepare for the trial of this case."
On August 8, 2016, the trial court heard Anna's verified motion for continuance. The trial court ruled the trial would commence with appellees' case in chief. To accommodate Anna, the trial court ordered that after appellees presented their case, court would recess on the matter until September 26, 2016, when Anna could present her case in chief. Counsel did not object, argue that counsel was not adequately prepared to respond to appellees' case, or argue that the recess would be insufficient to allow counsel adequate time to prepare Anna's case.
Appellees presented their case from August 8, 2016, to August 10, 2016. On September 26, 2016, the trial court granted Anna a continuance, and reset the presentation of Anna's case for October 10, 2016. Anna presented her case from October 10, 2016, to October 12, 2016. Twenty two witnesses testified during the trial, and the trial court admitted a video recording and nearly seven hundred pages of exhibits. After closing arguments, the trial court took the case under advisement and thereafter signed a final judgment terminating Anna's parental rights. The trial court found Anna endangered the children's physical or emotional well-being and had a murder conviction for which she would be confined or imprisoned and unable to care for the children for at least two years. The trial court also found that termination of Anna's parental rights is in the children's best interest. Anna appeals.
MOTION FOR CONTINUANCE
We review a trial court's ruling on a motion for continuance for an abuse of discretion. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986). A trial court abuses its discretion if it acts arbitrarily or unreasonably. Id. A trial court may grant a continuance only for "sufficient cause supported by affidavit." TEX. R. CIV. P. 251. A motion for continuance must clearly inform the trial court of the basis or need for the relief sought, including what evidence might be discovered during the requested delay. See Yowell, 703 S.W.2d at 635. Otherwise, "the trial court cannot decide whether a delay would further justice." Id.
Anna argues the trial court abused its discretion because her motion establishes (1) the trial date was accelerated to August 8, 2016, from October 24, 2016, without input from her counsel, who had numerous scheduling conflicts the week of August 8, 2016; and (2) Anna's counsel attempted to visit her "in the Bexar county jail, where she was located when [he] was initially appointed, [but Anna] had been transferred to TDCJ custody, and was subsequently transferred to different unit(s) within the TDCJ system 2-3 more times." Appellees dispute whether the trial court wholly denied Anna's motion because the trial court ultimately gave Anna two additional months to prepare to prepare and present her case.
Anna's motion does not state when counsel became aware of the scheduling conflict with the other settings the week of August 8, 2016. Anna's motion states counsel learned the trial setting had been accelerated from October 24, 2016, to August 8, 2016, "sometime" after trial counsel was appointed on March 10, 2016. The record shows Anna's counsel filed a motion for a bench warrant on June 23, 2016, indicating counsel was aware of the August 8, 2016 hearing on the merits of this case. Thus, the record shows Anna's counsel had at least six weeks' notice of the trial setting. Anna's motion does not show the effort, if any, counsel took to have the conflicting settings reset, explain the other settings' precedence over a trial in a termination proceeding that had been pending for nearly three years, or explain why the motion for continuance was filed on the Friday before a trial set for the following Monday. See R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 701 (Tex. App.—Waco 2008, pet. denied) (holding a trial court did not err by denying motion for continuance based on a scheduling conflict under similar facts). The record also shows Anna's counsel was present and participated each day of the trial. Thus, on this record, counsel's scheduling conflicts do not establish the trial court abused its discretion by denying the motion for continuance. See id.
Anna suggests she had only four days to confer with counsel, but the record shows counsel was appointed on March 10, 2016, and trial commenced on August 8, 2016. Although Anna's motion states she was transferred from the Bexar County jail to various TDCJ prisons, the motion does not state counsel was ever unaware of Anna's location or otherwise unable to communicate with her. When a trial court has granted a prior continuance, a trial court may consider a period as short as nineteen days as sufficient for newly substituted counsel to prepare for trial. See Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 150 (Tex. App.—El Paso 2000, no pet.). In this case, the trial court had granted Anna at least one continuance, the trial was reset numerous times, and trial counsel was appointed five months before trial. Thus, the trial court may have considered five months to be sufficient time for counsel to prepare for trial or, at least, to respond to appellees' case in chief. See id.
Anna's motion also did not specify whether the additional time she requested was to respond to appellees' case in chief, to prepare her case in chief, or both. When the trial court sought to accommodate Anna by giving her additional time to prepare her case while proceeding with appellees' case, Anna did not argue—and she does not argue on appeal—she needed additional time to respond to the appellees' witnesses and evidence as opposed to preparing her own witnesses and evidence. In light of the trial court's accommodation of Anna's counsel, the record does not establish that Anna sufficiently informed the trial court of the basis or the need for the additional time. See Yowell, 703 S.W.2d at 635. We hold the trial court's ruling on Anna's verified motion for continuance was not arbitrary or unreasonable. See id. Thus, the trial court did not abuse its discretion. See id.
CHILDREN'S BEST INTEREST
A judgment terminating parental rights must also be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine whether a "factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, 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." Id.
A. The Best-Interest Determination
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. Id. "Evidence that the parent has committed the acts or omissions prescribed by section 161.001 may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d at 684 (internal citation omitted). "A factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent." In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
B. Analysis
In her brief, Anna briefly describes the testimony of only nine of the twenty-two witnesses who testified at trial and does not rely on any of the nearly seven hundred pages of exhibits or the video recording. Anna presents only two arguments in support of her challenge to the sufficiency of the evidence: (1) evidence that appellees have a bond with S.J.J. and C.M.J. is insufficient to terminate her parental rights; and (2) her family members, including S.J.J. and C.M.J.'s half-siblings, testified they desire to maintain a relationship with S.J.J. and C.M.J. Although we need not recite the testimony of every witness and describe all of the exhibits in detail to address Anna's arguments, we will briefly describe the evidence necessary to disposing of Anna's legal and factual sufficiency challenge. See TEX. R. APP. P. 47.1 (requiring our opinions to be as short as practicable while addressing all issues raised and necessary to the disposition of the appeal).
Several officers testified about the night of the stabbing, and a doctor with the Medical Examiner's Office testified about Toni's autopsy. The children's psychotherapist testified in detail about her sessions with the children, their current and future emotional needs, how S.J.J. has been psychologically impacted by observing her mother stab her father, S.J.J.'s attachment to Sam, and how appellees are meeting the children's physical and emotional needs. Appellees called Anna to testify, but she repeatedly invoked her Fifth Amendment privilege against self-incrimination. Sam testified he has raised the children over the past three years, the children have improved in his care, and the children received little support to no support from Anna or her family after appellees were appointed temporary managing conservators. The trial court admitted appellees' exhibits, which included an offense report; Anna's plea bargain; a judgment reflecting Anna's conviction for murder and a twenty-five-year prison sentence; and other documents from Anna's criminal case.
Anna's sister Andrea testified that before the incident, she saw the children approximately three times a month, Anna is a good parent and dedicated mother, and Anna had experienced significant stress and suicidal thoughts in the past. Andrea speculated there might have been a struggle because she had "seen [Toni's] temper" on prior occasions, but she admitted she was not present during the incident. Anna's ex-boyfriend testified Anna was a good mother based on his observations of her caring for the children's half-siblings, but he did not observe Anna "a lot" with S.J.J. or with C.M.J. at all. He stated he had never seen Toni be aggressive or have an argument with Anna, but he saw Toni and Sam once have an argument. Employees of the Family Service Association, which facilitated supervised visits with the children, testified they observed some of Anna's visits before she was incarcerated. They testified Anna's interaction with the children was "appropriate," and Anna and the children appeared happy and to interact well.
Anna's friends, the children's half-siblings, and several of Anna's other family members also testified Anna was a good mother and the family wanted to maintain a relationship with S.J.J. and C.M.J. Anna's son, Jace, testified he lived with Anna and Toni, their relationship was toxic, Toni would hit Anna and throw things, and S.J.J. had behavioral problems and nightmares before the stabbing incident. The trial court admitted into evidence a video recording of S.J.J. having a "night terror" before the stabbing incident.
During his testimony, Jace made an outcry against Toni, stating Toni "would put his body next to mine, and . . . he would make me touch his private part," when Jace was younger. However, Jace stated he did not tell anyone (including Anna, Jace's therapist, or the children's ad litem attorney) about this before the trial, despite being asked to give a statement about his relationship with Toni. The trial court admitted several other of Anna's exhibits, including photographs, contact logs describing Anna's supervised visits with the children, and a letter one of the children's half-siblings wrote about wanting to remain in the children's lives.
Having reviewed all of the evidence and considering the Holley factors, we hold a trier of fact could have reasonably formed a firm belief or conviction that termination of Anna's parental rights is in the children's best interest. Anna will be serving a twenty-five-year prison sentence for murder, and she repeatedly stabbed the children's father in front of S.J.J. while C.M.J. was also in the house. Anna does not challenge the trial court's findings of grounds for termination, particularly that she endangered the children and will be imprisoned for murder. See In re C.H., 89 S.W.3d at 27 (holding undisputed evidence showing a parent endangered the child's safety may be sufficient to support a best-interest finding); In re O.N.H., 401 S.W.3d at 684 (explaining we may consider evidence establishing grounds for termination as relevant to the best-interest determination); see also In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (explaining an "inability to maintain a lifestyle free from arrests and incarcerations" may support a best-interest finding). Anna pled guilty to murder, she provided no justification or defense for stabbing Toni in this case or in her criminal case, and there is conflicting evidence as to whether there was domestic violence in their relationship. We may not reweigh issues of witness credibility and must defer to the trial court's reasonable credibility determinations. See In re J.P.B., 180 S.W.3d at 573.
Although the children did not testify about their desires, the children's psychotherapist testified S.J.J. has stated "[m]ommy hurt daddy," "mommy is not nice," "[t]he bad mommy is gone," and "I don't want to see my mommy." Sam also testified the children have never asked to see Anna. As Anna acknowledges, there is evidence showing S.J.J. and C.M.J., who were five and four years old respectively at trial, have bonded with Sam. There is also evidence showing Sam has cared for the children for the past three years and he indicated he intends to adopt them. When children are too young to express their desires, the trial court may consider evidence of a bond with a foster parent. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). While there is evidence showing the children had a bond with Anna and interacted well with her during supervised visits before she went to prison, we may not reweigh issues of witness credibility and must defer to the trial court's reasonable credibility determinations. See In re J.P.B., 180 S.W.3d at 573.
Anna correctly notes that evidence of a bond with a party seeking custody, if it is the only evidence of a child's best interest, is insufficient to support a best-interest finding. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (explaining the best-interest standard is not satisfied by mere evidence that a child "might be better off living elsewhere"). But there is undisputed evidence regarding the stabbing incident, Anna's guilty plea, and her murder conviction. The children's therapist also testified S.J.J. remained traumatized from seeing Anna stab Toni, and any contact with Anna would trigger memories of the traumatic experience and disturb S.J.J.'s recovery. There is also evidence showing Anna made only four child support payments over the course of two and a half years. See In re K.M., No. 04-04-00259-CV, 2004 WL 1701159, at *3 (Tex. App.—San Antonio July 28, 2004, no pet.) (mem. op.) (considering parent's failure to make child support payments as weighing in favor of the trial court's best-interest finding). The evidence of the children's bond with appellees is therefore not the only evidence supporting the trial court's best-interest finding.
Anna relies on her family's testimony that they desire to maintain a relationship with S.J.J. and C.M.J. But there is conflicting evidence as to whether the children had much of a relationship or bond with Anna's family members at the time of trial, and we must defer to the trial court's reasonable credibility determinations. See In re J.P.B., 180 S.W.3d at 573. There is also evidence showing Anna's family provided no support or gifts to the children after appellees were appointed managing conservators, and Anna and her sister Andrea exchanged "obscene gestures" in the courtroom during this case. The children's therapist testified that even seeing Anna's family could trigger traumatic memories of the stabbing experience and disturb S.J.J.'s recovery. In light of all of the evidence, we cannot say the mere desires of Anna's family precluded the trial court from reasonably forming a firm belief or conviction that termination of Anna's parental rights is in the children's best interest. We hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
CONCLUSION
The trial court's ruling on Anna's verified motion for continuance was not an abuse of discretion. Furthermore, the evidence is legally and factually sufficient to support the trial court's best-interest finding. We therefore affirm the trial court's judgment.
Luz Elena D. Chapa, Justice