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In re A.R.M.

Court of Appeals of Texas, Fifth District, Dallas

March 30, 2018


          On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-13-09646

          Before Justices Fillmore, Whitehill, and Boatright



         We deny appellant's motion for rehearing and, on our own motion, withdraw our opinion dated February 1, 2018, and vacate the judgment nunc pro tunc entered February 9, 2018. This is now the Court's opinion.

         During their divorce case, Father sought to terminate Mother's parent-child relationship with their daughter. The termination issue was tried to a jury, which found against Mother. The final divorce decree terminated her parent-child relationship with Daughter. Mother raises five issues. Four issues challenge the sufficiency of the evidence, and the fifth issue concerns evidentiary rulings during trial.

         An important question here is whether evidence suggesting that Mother coached Daughter to make false sex abuse outcries against Father, otherwise attempted to undermine Father's relationship with Daughter, planted surveillance devices on Daughter for her supervised visits with Father, and violated both court orders and supervised visitation rules is legally sufficient to prove by clear and convincing evidence that Mother's behavior endangers Daughter's emotional health and that terminating Mother's parental relationship with Daughter would be in Daughter's best interest. Based on the evidence in this record, we conclude that the answer to that question in this case is yes. We therefore affirm the trial court judgment.

         I. Procedural History

         In May 2013, Father sued Mother for divorce. He alleged that Daughter had been born in 2010, and that the couple married in 2011. He asked to be appointed Daughter's sole managing conservator.

         Mother answered and countersued for divorce. She asked to be appointed Daughter's sole managing conservator and that Father be denied access to the child.

         A few months later, Mother amended her pleadings and sought to terminate Father's parent-child relationship with Daughter. Father later filed a counter-petition to terminate Mother's parent-child relationship with Daughter.

         Although Mother nonsuited her request to terminate Father's parent-child relationship a few days before trial, Father did not reciprocate. After a three-day trial, the jury found by clear and convincing evidence that (i) Mother endangered Daughter's physical or emotional well-being or knowingly placed her with persons who so endangered Daughter and (ii) terminating Mother's parent-child relationship with Daughter was in the child's best interest.

         Mother moved for judgment notwithstanding the verdict. The trial court denied the motion and signed a final divorce decree that terminated Mother's parent-child relationship with Daughter based on the jury's verdict.

          II. Issues Presented and Error Preservation

         Mother asserts these issues:

         Issues one and two attack the legal sufficiency of the evidence supporting the jury's endangerment and best interest findings. Mother's motion for judgment notwithstanding the verdict preserved these issues in the trial court. We overrule these issues.

         Issues three and four attack the factual sufficiency of the evidence supporting the jury's two findings. Factual sufficiency issues must be preserved by new trial motion. Tex.R.Civ.P. 324(b)(2). Mother did not file a new trial motion, so we overrule issues three and four for non-preservation.[1]

         Issue five complains that the trial court committed evidentiary error. We conclude that the trial court did not abuse its discretion and any error was harmless.

         III. Issues One and Two: Legal Sufficiency of the Evidence

         A. Standard of Review

         Because terminating parental rights implicates fundamental interests, the clear and convincing standard of proof is used in termination cases. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). "Clear and convincing evidence" is the measure or degree of proof that will produce in the factfinder's mind a firm belief or conviction as to the truth of the matter to be proved. Tex. Fam. Code § 101.007.

         Our standard of review reflects the elevated burden at trial. In re N.T., 474 S.W.3d 465, 475 (Tex. App.-Dallas 2015, no pet.). Specifically, we consider all the evidence to determine whether the factfinder could reasonably form a firm belief or conviction that the termination grounds were proven. Id. Although we consider all the evidence and not just the evidence favoring verdict, we (i) view the evidence in the light most favorable to the finding, (ii) defer to the factfinder's determinations as to witness credibility, and (iii) disregard all contrary evidence that a reasonable factfinder could have disbelieved or deemed incredible. Id.

         B. Applicable Law

         The trial court may terminate the parent-child relationship if the factfinder finds by clear and convincing evidence that (i) the parent committed one or more acts or omissions enumerated in family code § 161.001(b)(1) and (ii) termination is in the child's best interest. Fam. § 161.001(b).[2] In this case, the jury found that Mother engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child, which is grounds for termination under § 161.001(b)(1)(E). "Endanger" means to jeopardize the child's emotional or physical health or to expose it to loss or injury. In re N.T., 474 S.W.3d at 476. It is not necessary that the conduct be directed at the child or that the child actually suffer an injury. Id. However, termination under subsection (E) must be based on a voluntary, deliberate, and conscious course of conduct by the parent; a single act or omission is not enough. In re J.W., 152 S.W.3d 200, 205 (Tex. App.-Dallas 2004, pet. denied).

         As for the best interest element, the supreme court identified a nonexclusive list of factors that may be relevant, depending on the facts: (i) the child's desires, (ii) the child's current and future emotional and physical needs, (iii) current and future emotional and physical dangers to the child, (iv) the parental abilities of those seeking custody, (v) the programs available to help those individuals promote the child's best interest, (vi) those individuals' plans for the child, (vii) the home's or proposed placement's stability, (viii) the parent's acts or omissions indicating that the existing parent-child relationship is not a proper one, and (ix) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). An absence of evidence of some Holley factors does not preclude a finding that termination is in the child's best interest, particularly if undisputed evidence shows that the parental relationship endangered the child's safety. In re N.T., 474 S.W.3d at 477. The jury was instructed that it could consider the Holley factors in making its findings.

         The same evidence can be relevant to both § 161.001(b)(1) termination grounds and the child's best interest. In re D.W., 445 S.W.3d 913, 925 (Tex. App.-Dallas 2014, pet. denied).

         C. The Evidence

         1. The Early Part of the Relationship

         According to Father, his relationship with Mother was good in the early going. They started dating in January 2010, and they started having sex a few weeks later. Mother became pregnant with Daughter in April 2010, and Mother and Father got engaged that May. Father also moved into Mother's rental home in May. Daughter was born in December 2010, and Father and Mother married the following month. Their relationship was loving and caring in 2011, although Mother was possessive and obsessive about Daughter and would not let her spend the night with Father's parents. Father's relationship with T.H., Mother's son from a prior marriage, was strained from early in the relationship.

         According to Father, things deteriorated quickly after August 2012, when the family moved into a new house in another town. Buying the house overextended the family financially, and Father's quality of life grew worse as his work pressures increased and Mother and her mother challenged his manliness because he was not an adequate provider. His relationship with T.H. also worsened, and Mother (who had previously supported Father when dealing with T.H.) began siding with T.H. when he and Father argued. Father later learned that Mother secretly recorded some of his arguments with T.H. By October 2012, Father began staying with his parents sometimes and Mother and Father were seeing a family therapist.

         According to Mother, however, she did not have sex with Father until late April 2010, when he forcibly raped her in her home. She further testified that she had consensual sex with Father only once, and that was based on a counselor's advice; every other time they had sex was rape. She never loved Father after he raped her the first time. Nevertheless, she allowed him to move in with her and T.H., and she later married Father. When asked why she chose to marry Father after Daughter was born, Mother answered:

Based on my religion and my background, I had to have-being able to raise my children, I had to have a clear conscience. I had to have peace, I had to forgive and I had to move on. And at this point, it was just at me. It was just-the abuse was just at me. And when I say "abuse, " I'm talking rape.

         (There were several handwritten love notes from Mother to Father in 2011 that belied her rape testimony. The jury could have reasonably believed her handwritten notes instead of her trial testimony and drawn adverse inferences toward Mother's credibility based on those discrepancies.)

         According to Mother, her relationship with Father was "very trying" after Daughter was born. Father walked out on the family quite a bit and did not want to support Daughter or her needs. And he was becoming more abusive to T.H., Mother, and ultimately Daughter. Mother also testified that as early as August or September 2012 she suspected that Father was sexually abusing Daughter.

         2. The Altercation, the First State Investigation, and the Criminal Case

         Father testified that on January 3, 2013, he and Mother argued about her buying clothes with money her family gave her even though they would receive a tax refund in a few weeks. T.H., who was then twelve years old, interjected himself into the argument, and Father sent him to his room. T.H. came back out, and Father sent him back again and followed him to make sure he stayed there. Father put his finger in T.H.'s face, and T.H. kicked at Father's chest. Father batted T.H.'s legs away while T.H. was continually "bicycle kicking" at him. The whole incident lasted about ten seconds. Father testified that his response to T.H. was inappropriate but it was not an assault. After the incident, Father went to his parents' residence and never moved back into the house.

         T.H., however, testified that Father's conduct was much more violent than Father described it. According to T.H., he was "choked and, basically, almost killed." Similarly, Mother testified that Father had one hand over T.H.'s nose and mouth and the other hand on his throat. But it was the jury's prerogative to assess the witnesses' credibility, and they could have believed Father instead of T.H. and Mother.[3]

         There was also evidence that CPS (i) investigated Father regarding his altercation with T.H. and (ii) contacted him on May 3, 2013, about a different case against him involving Daughter. Father testified that this was the first time he heard about a case involving Daughter. However, a March 2013 report concerning the January 3, 2013 incident recited that the TDFPS's investigation had ruled out an allegation that Father had physically abused Daughter but concluded that there was reason to believe he had neglectfully supervised her.

         Father and Mother exchanged text messages about the May 3 contact. During that exchange, Father asked whether Mother knew anything about the case against him regarding Daughter, and her responses were evasive despite his stated concern over this new information: "I can't take this. They're going to take my children from me."

         Father was later arrested in May 2013 for assaulting T.H. Father testified that he talked to Mother on the telephone while he was in jail. She talked to him about getting back together and said that divorce was not the answer. But then Father hired an attorney, who told him that Mother was "coming after" him and was pushing the district attorney to prosecute him. Father filed for divorce soon after learning this.

         Father was released on bond, and one bond condition was to stay away from T.H.'s family, which included Daughter. This remained the state of affairs until he was tried and acquitted in October 2014. After he was acquitted, he began to prosecute the divorce case.

         3. The Sex-Abuse Investigations and the Custody Arrangements

         The TDFPS received several reports that Father had sexually abused Daughter, but none of the resulting investigations led to any findings against him. At trial, Father testified that all the accusations that he did anything sexual to Daughter were lies.

         Many TDFPS records were admitted into evidence, but some of the details about the various abuse reports, investigations, and conclusions are sketchy.

         A 2014 TDFPS record contains a brief reference to a 2013 case that was apparently distinct from the January 2013 altercation investigation. An investigator wrote, "During the second case (4/16/13), the allegation of sexual abuse was made and after speaking with [Daughter's] pediatrician, the case was ruled out. [Mother] had never addressed this issue with the doctor and that [sic] he had been the children's physician for many years. I talked with [Father] regarding the allegation of sex abuse with [Daughter] He denied this and called it a viscious [sic] lie."

         On June 24, 2014, there was a report that Father had sexually abused Daughter. The TDFPS closed its investigation two months later with a finding of "Unable to Determine." This investigation apparently concerned a claim by T.H. that he had seen Father "orally assault[] [Daughter's] privates on the changing table" in their house. The alleged assault presumably would have occurred between August 2012, when the family moved into the house, and January 3, 2013, when Father left the house after the altercation and did not return. At the time of the alleged assault, Daughter would have been two years old or a little less. At trial, Father denied that this alleged assault ever happened and opined that T.H. made up the allegation on his own or with Mother's help.

         The next reports seem to have come from Dr. Kristi Frye, a counselor, who testified at trial to the following facts. The court ordered Daughter to start therapy with Dr. Frye in October 2015 to help her reunification with Father. Daughter ...

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