Summary
holding parent failed to preserve his complaint that appointment of counsel was required by Fourteenth Amendment
Summary of this case from In re I.M.SOpinion
No. 04-04-00431-CV
Delivered and Filed: July 6, 2005.
Appeal from the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-PA-00027, Honorable James Clawson, Judge Presiding.
The Honorable James Clawson, sitting by appointment, conducted the trial on the merits and signed the order of termination. The Honorable David Peeples, formerly the presiding judge of the 224th Judicial District Court, Bexar County, Texas, heard and ruled on the motion for appointment of counsel.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Billy B. Pruitt appeals the judgment terminating the parent-child relationship between him and V.R.P. We affirm.
1. Pruitt first argues the judgment violates his rights because it is based on his ex-wife's "perjured" testimony that she has not received any child support payments owed under the divorce decree. Pruitt's argument is based entirely on documents attached to his brief that are not contained in the appellate record. Our review is limited to the appellate record. See Carlton v. Trinity Universal Ins. Co., 32 S.W.3d 454, 458 (Tex.App.-Houston [14th Dist.] 2000, pet. denied) (striking documents attached to brief that were not in appellate record). The record contains no evidence that Pruitt's ex-wife's testimony was false. Moreover, the trial court found five separate grounds for terminating Pruitt's parental rights, only two of which depend on a finding that Pruitt has failed to support the child.
We note that the documents attached to Pruitt's brief do not establish the testimony was false. The documents appear to be copies of child support remittance forms and checks for partial child support payments made to the office of the Texas Attorney General on Pruitt's behalf by his mother. None of the documents reflect that Pruitt's ex-wife has received any payments.
2. Pruitt next argues the evidence is legally and factually insufficient to support the trial court's findings "that [Pruitt] violated the provisions of section 161.001 [of the Texas Family Code]." We again disagree.
Pruitt also contends the evidence is insufficient because "[t]here was absolutely no testimony or evidence presented at trial by the [Texas Department of Family and Protective Services] that [Pruitt] violated the provisions of section 161.001 [of the Texas Family Code]." However, termination of Pruitt's parental rights was sought by Pruitt's ex-wife, A.V., not by the Department; therefore, no evidence from the Department was necessary.
The trial court found that Pruitt engaged in conduct that endangered V.R.P.'s physical or emotional well-being and that termination is in V.R.P.'s best interest. See Tex. Fam. Code Ann. § 161.001(1)(E), (2) (Vernon 2002). In this context "endanger" includes a course of conduct that has the effect of exposing a child to loss or injury or jeopardizing a child's emotional or physical well-being. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987). "[I]t is not necessary that the conduct be directed at the child or that the child actually suffers injury." Id. at 533.
The trial court found four additional grounds for terminating Pruitt's parental rights under section 161.001(1) of the Family Code. However, "[o]nly one predicate finding under section 161.001(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). Pruitt does not challenge the trial court's finding that termination is in V.R.P.'s best interest.
A.V. testified that after she and Pruitt separated in November 1999, Pruitt came to her apartment and took her and V.R.P., who was then about five months old, put them in a car, and took them to a field outside of town, all the time "yelling and screaming that he was going to kill all of [them], and that he was not going to allow [A.V.] to leave him, and that he wanted to kill [her] and [V.R.P.]." About a month later, when A.V. arrived at her apartment, Pruitt came out of her apartment, grabbed her by the hair through the open car window, pulled her out through the window and hit her repeatedly until she was unconscious. When she woke up, she found that Pruitt had ransacked the apartment. A.V. then obtained a protective order prohibiting Pruitt from coming near her or V.R.P.A.V. testified that Pruitt violated the order several times, once by coming in her apartment and taking V.R.P. without her permission and staying gone with her for a day. She testified Pruitt threatened that he was going to take V.R.P. away so A.V. would never see her again. In March 2000, Pruitt once again entered A.V.'s apartment while she was out and, when she returned, Pruitt again assaulted her. When Pruitt again illegally entered A.V.'s home in June 2000, he was arrested and ultimately convicted and sentenced to ten years imprisonment for burglary of a habitation with intent to commit assault and to five years for aggravated assault on the police officer who responded to A.V.'s call. Pruitt was in his fourth year of incarceration at the time of trial. Finally, A.V. testified that in October 2000 she married an employee of the San Antonio Police Department, her husband "for all practical purposes [has] been [V.R.P.'s] father" since then, and her husband wants to adopt V.R.P.
Pruitt admitted that he had taken V.R.P. from his mother in violation of the protective order, but claimed he was only gone a short time and had taken V.R.P. to A.V.'s mother's house. He admitted he violated the protective order by entering A.V.'s home without her consent. He also admitted he assaulted A.V., but testified it was only "one prior assault . . . I hit her four times . . . [a]nd then I realized what I had done and I stopped." At the May 2004 trial, Pruitt testified that he would soon be eligible for parole and had already applied. Pruitt urged his position that his treatment of A.V. was a mistake, he was paying for the mistake, he loves V.R.P. and wants to develop a relationship with her as he has with another daughter, and he is trying, through his parents, to provide support to V.R.P. while he is incarcerated.
We note that Pruitt remained incarcerated at the time of his most recent filing in this court in March 2005.
After reviewing the entire record, we hold that a reasonable trier of fact could have formed a firm belief or conviction that Pruitt engaged in a course of conduct that endangered V.R.P.'s emotional or physical well-being, and the evidence is both legally and factually sufficient to support the judgment. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (standard of review for legal sufficiency in termination case); In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002) (standard of review for factual sufficiency in termination case); see also Spangler v. Tex. Dep't of Protective and Regulatory Servs., 962 S.W.2d 253, 260 (Tex.App.-Waco 1998, no pet.) (holding that father's incarceration, his physical abuse of his spouse, and his threats to kill her supported finding that he had endangered child's physical or emotional well-being); In re J.J., 911 S.W.2d 437, 440 (Tex.App.-Texarkana 1995, writ denied) (holding that danger to children's well-being could be inferred from father's physical abuse of his wife, use of drugs, and imprisonment).
3. In his final issue, Pruitt argues the trial court erred in failing to appoint an attorney to represent him because appointment of counsel is required by section 107.013 of the Family Code and the Sixth and Fourteenth Amendments to the United States Constitution.
Section 107.013 of the Family Code provides that "[i]n a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of an indigent parent of the child who responds in opposition to the termination." Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2004). Because no governmental entity sought termination of Pruitt's parent-child relationship with V.R.P., Pruitt was not entitled to an attorney ad litem pursuant to section 107.013.
Pruitt's claim that he has a constitutional right to counsel is raised for the first time on appeal. His letter to the trial court requesting counsel cited only section 107.013 of the Family Code. At the hearing on the motion, the trial court allowed Pruitt to speak extensively about the reasons he believed counsel should be appointed, but at no time did he raise any constitutional argument. Accordingly, Pruitt failed to preserve the argument for appeal. See In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003); In re M.J.M.L., 31 S.W.3d 347, 352 (Tex.App.-San Antonio 2000, pet. denied); Tex.R.App.P. 33.1. Assuming preservation was not necessary, the appointment of counsel for Pruitt was not required by due process. The termination petition was based on conduct that has already been pursued in the criminal justice system and included no new "allegations of neglect or abuse upon which criminal charges could be based;" "no expert witnesses testified and the case presented no specially troublesome points of law, either procedural or substantive;" Pruitt was able to and did effectively urge his position; and, perhaps most significantly, the termination in this case was not sought by the State. See Lassiter v. Dep't. of Soc. Servs., 452 U.S. 18, 31-33, 101 S.Ct. 2153, 2161-63, 68 L.Ed.2d 640 (1981).
The trial court's judgment is therefore affirmed.