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In re S.M.T.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 20, 2017

IN THE INTEREST OF S.M.T. AND L.C., MINOR CHILDREN

         On appeal from the 343rd District Court of Live Oak County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          DORI CONTRERAS Justice

         This appeal concerns the termination of parental rights to minor children S.M.T. and L.C.[1] Appellants are G.C., the biological father of L.C., and B.S., the biological mother of both children. Both appellants contend that the evidence was factually and legally insufficient to support termination. G.C. additionally argues that he "was not represented effectively by counsel." We affirm.

         I. Background

         S.M.T. was born to mother B.S. and father D.T. on June 9, 2010. L.C. was born to mother B.S. and father G.C. on August 21, 2014. The Department of Family and Protective Services (the Department) filed a petition seeking termination of both appellants' parental rights on June 17, 2015.[2] Trial took place before a Live Oak County jury over five days in December 2016, during which B.S. was represented by counsel and G.C. appeared pro se.

         Department investigator Mary Rojas testified that she was assigned to the case in May of 2015 following a report of physical abuse. According to Rojas, S.M.T. had been absent from her pre-kindergarten class for three days and had returned with "some scabbing on her face, her cheek and her neck." School officials reported that S.M.T. told them she had a "secret" which she could not tell. Rojas testified that, during an interview, S.M.T. "disclosed that [G.C.] had been throwing furniture" and "started talking about how [G.C.] wanted to go outside and shoot himself with the gun." S.M.T. also told Rojas that G.C. "smacked her mouth" and twisted her leg; that G.C. also smacked L.C.'s mouth; and that G.C. would pull B.S. by the ears. S.M.T. also reported that ice was "put on her private" because of "bruising." According to Rojas, school officials advised B.S. of her daughter's injuries but B.S. "wasn't concerned about" the injuries and instead "focused on herself."

         Penny Green interviewed S.M.T. at the Children's Advocacy Center in Corpus Christi. Green testified that S.M.T. reported that the "secret" she had was that G.C. had slapped her. S.M.T. did not mention sexual abuse in the interview. On cross-examination, Green agreed that S.M.T. stated that "something like three different people at school touch[ed] her, " but Green did not follow up on those reports because she understood that S.M.T. was "identifying other children." A video recording of the interview was entered into evidence. On the recording, S.M.T. said that when she gets in trouble and her mother is at work, G.C. spanks her with his paddle and his belt and twists her leg. S.M.T. further stated that B.S. and G.C. work at the same place. When Green asked S.M.T. what happened to her face, S.M.T. replied: "I can't tell anybody my secret." She stated that B.S. told her to keep the secret, and the secret was that G.C. "hit my face really hard" and that he "used to [hurt me] every day."

         Rojas took S.M.T. to Driscoll Children's Hospital, where she was found to have "various bruising" and where she made an outcry of sexual abuse. Hospital records entered into evidence show the following patient history:

Patient states, "My daddy, [G.C.], twisted it. My leg (patient indicates right leg by pointing) because I didn't like it. I didn't want him to twist my leg. He hits me with his belt because I'm not being-have [sic]. My mom said it's a secret, not to tell anyone. My dad hurt my face and twisted my leg."
Patient also states, "My daddy, [G.C.], put his finger here in my private (patient indicates female sexual organ by pointing) under my clothes, inside and here (patient indicates anus by pointing) with his finger, inside."

         According to Rojas, B.S. denied any abuse by G.C. B.S. claimed that G.C. "would never hurt" S.M.T. and that S.M.T. was lying. When asked about S.M.T.'s bruising, B.S. said that S.M.T. "had a disease" that "make[s] her bruise easily"; however, the Department did not find that any such diagnosis had ever been made. The Department then instituted a safety plan requiring B.S. to not allow G.C. to have contact with either child. The safety plan was signed by both parents and provided that B.S.'s friend, Justina Early, would monitor B.S. and report any contact between G.C. and the children to the Department.

         Rojas testified that the Department soon received reports that B.S. was having contact with G.C. In particular, a neighbor of B.S. reported that he heard adult voices yelling from B.S.'s house and saw G.C.'s vehicle parked there. Believing that the safety plan had been violated, Rojas visited B.S. at her workplace and observed that G.C. was there with B.S. At a later meeting at B.S.'s house, B.S. and Early "became defensive" when they were told that G.C. could not have visitation with S.M.T. According to Rojas, B.S. and Early "were saying that [G.C.] could be around [S.M.T.] if they wanted him around" and B.S. refused several requests by Rojas to place the children with another person, such as S.M.T.'s biological father D.T. B.S. told Rojas that G.C. had been more of a father to S.M.T. than D.T. and that she would rather see S.M.T. placed in foster care than with D.T. However, Rojas observed D.T. visit S.M.T. in June of 2015 and, according to Rojas, the visit "went great" and "they seemed to be pretty bonded." Rojas stated that she never had any concerns about D.T.'s relationship with S.M.T. Rojas later explained that B.S. did not want D.T. to have custody of S.M.T. because D.T.'s "grandfather used to beat her" and because D.T. used drugs.

         Because no alternative placement could be agreed upon, the Department took custody of the children in June 2015.[3] According to Rojas, Early resisted surrendering custody and initially refused to open the doors to the car that she and the children were in. Eventually, Early complied but she "was very verbally aggressive" and "ended up getting arrested due to the way she was acting." S.M.T. was placed with D.T., and L.C. was placed with G.C.'s mother.

         At a full adversary hearing on July 1, 2015, Rojas testified that she believed B.S. endangered the children because she "did not believe her daughter's outcries." On cross-examination, Rojas clarified that B.S.'s neighbors never actually saw G.C. at B.S.'s house following institution of the safety plan. She concluded that the safety plan had been violated because the neighbor heard adult voices yelling at B.S.'s house and saw G.C.'s vehicle parked there.

         A service plan requiring, among other things, that appellants undergo counseling and assessments, was adopted as an order of the court. Alejandra Pinon, who replaced Rojas as the Department caseworker, testified that neither appellant complied with the service plan. Pinon explained that, although G.C. and B.S. completed the services required of them, they did not cooperate with the Department because they were not honest as to their relationship with each other. Pinon stated that B.S. had not demonstrated a willingness to protect her children because she continued her relationship with G.C. According to Pinon, both appellants were told repeatedly that, if they continued their relationship with each other, "that would be a problem towards reunification" with the children. Nevertheless, in October of 2015, Pinon's assistant discovered that B.S. had maintained internet social media accounts using both her name and G.C.'s name.

         Debra Sublett, S.M.T.'s counselor, testified as follows about a therapy session she had with S.M.T. in September of 2015:

We play with toys, with sandboxes those kind of things. And I just let them play.
I never ask any leading questions. I did not ask her about family. I did not ask her about mom. I did not ask her about [G.C.]. And in the medium of play, she began to talk. And I put what I have in my notes in quotes so it is from her and not my words.
She began to say, "[G.C.] touched me." And this is in the middle of play. And so I asked her, "So, what kind of touch?" And she pointed to her genital area and her anal area. She said-and I asked her, "Was this touch inside or outside?" She said, "It was inside." She said, "I was on the bed and he touched me. And it happened lots of times."

         At another session in November 2015, D.T. reported to Sublett that S.M.T. had asked him to "take a picture of her while she was in the shower." Sublett asked S.M.T. about this, and S.M.T. reported that "[G.C.] took pictures of me in the shower while mom was at work" and "[h]e looked at my privates."

         The next therapy session took place in December 2015. B.S. brought S.M.T. to the session, and Sublett testified:

As [S.M.T.] came in, she was quieter than she had been. Really reluctant to engage. She did sit down and looked away from me and began to play and use the sand and the toys.
And very quickly she said, regarding [G.C.], "No, he didn't. He didn't touch. It was another girl when I was in kindergarten. She touched my private. She took me to the restroom and pulled my pants down."

         Subsequently, D.T. tested positive for cocaine, and S.M.T. was removed from his custody and placed with a foster family.

         Clinton Davis, a detective with the Three Rivers Police Department, testified that he was assigned in May 2015 to investigate S.M.T.'s allegations of physical and sexual abuse. Davis stated that, after he learned that S.M.T. accused G.C. of taking pictures of her in the shower, he obtained a warrant to search G.C.'s residence, which he and other officers executed on February 10, 2016. A bodycam video recording of the execution of the warrant was entered into evidence. In the video, police can be seen searching the residence and seizing various electronic devices. They eventually discovered B.S., who had been hiding under a blanket near a bed. B.S. can be heard saying, "I'm not supposed to be here."

         G.C. testified that L.C. sustained a spiral fracture in his arm when he was eight months old. According to G.C., he was watching the children while B.S. was at work, and he had placed L.C. in a "bouncer" on a table. S.M.T. was "running around playing" and bumped into the table, causing L.C. to fall. G.C. stated that he "was in the kitchen washing dishes" at the time but went immediately to the living room and "grabbed [L.C] . . . the first way I could think, by the arm."

         G.C. testified that he loved S.M.T. and treated her as if she were his own daughter. He conceded that he disciplined her about five times by spanking her with a belt "on her bottom" with her pants up. He denied ever slapping S.M.T. on the face or twisting her leg.

         G.C. stated that D.T. started to have visitation with S.M.T. in April of 2015. G.C. testified that B.S. was happy for D.T. to have visitation. He was "confused" when B.S. told him, in May of 2015, that S.M.T. had made an outcry of abuse against him. G.C. acknowledged that he signed the safety plan and moved out of B.S.'s house. He denied having any contact with the children after signing the safety plan. He also stated that he and B.S. discontinued their relationship, and that he was seen at B.S.'s workplace because he also worked there. According to G.C., he and B.S. resumed their relationship sometime between December 2015 and February 2016. The following colloquy then occurred:

Q. [Department's counsel] And are you aware-were you aware then that if you-guys continued a relationship, that was going to be an obstacle for the children being with you and her?
A. [G.C.] Yes.
Q. And y'all still decided to get back together?
A. Yes.
Q. Okay. Why did y'all decide to get back together when you knew what it was going to cost you?
[G.C.]: I am sorry. I am going to have to stop. I don't feel comfortable anymore. . . . (Jury left the courtroom.)
THE COURT: [G.C.], are you invoking your 5th Amendment privilege?
[G.C.]: Yes.
THE COURT: You are seeking to have all of your interview ...

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