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In re D.B.

Court of Appeals of Texas, Second District, Fort Worth

May 22, 2018

IN THE INTEREST OF D.B. AND G.B., CHILDREN

          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY TRIAL COURT NO. CV16-00788

          MEMORANDUM OPINION [1]

          PER CURIAM

         Appellants D.B. (Mother) and S.B. (Father) appeal from the trial court's order terminating the parent-child relationship between them and D.B. (Dylan) and G.B. (Gabby).[2] The trial court found by clear and convincing evidence that Mother and Father had committed the acts specified in family code subsections 161.001(b)(1)(D) and (E) and that termination of their parental rights was in Dylan and Gabby's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (b)(2) (West Supp. 2017). In two issues, Mother contends that the trial court reversibly erred by admitting an affidavit into evidence at trial and that the evidence is legally and factually insufficient to support the trial court's statutory-grounds and best-interest findings. In his sole point, [3] Father argues that the evidence is legally and factually insufficient to support the trial court's best-interest finding. Because we conclude that legally and factually sufficient evidence supports the trial court's findings and that Mother was not harmed by the admission of the affidavit even assuming the trial court abused its discretion by admitting it, we affirm the trial court's order of termination.[4]

         I. BACKGROUND

         This particular case traces back to Oklahoma on November 16, 2016, when Mother took her children, seven-year-old Dylan and five-year-old Gabby, with her to a domestic violence shelter in Oklahoma. Dylan ran away from the shelter and back to his residence across town because he did not want to stay in a shelter. Oklahoma's Department of Human Services (DHS) opened an investigation, and Mother told an investigating social worker that she had gone to the domestic violence shelter because Father had been aggressive with her that morning before leaving town for Tennessee and changing his phone number so Mother could not reach him. However, when the social worker followed up with Mother at her home later that evening, she found Father sitting on the couch, and Mother stated that she had no recollection of speaking with DHS earlier in the day.

         A little more than a month later, on December 19, 2016, the social worker learned that Mother and Father had been in a physical altercation in front of their home. Upon investigation, the social worker learned that Mother had raised a hammer at Father and that Father had taken Dylan and Gabby outside to the car. Mother pulled Gabby out of the car, and Father then began to assault Mother while she was holding Gabby. Father was arrested and charged with domestic assault and battery in the presence of a minor. The social worker interviewed Father at the jail. During his interview with the social worker, Father was hostile and aggressive and, in reference to Mother, he began screaming that he "should have taken care of the problem" and that he "should have f*****g murdered her." Mother told the social worker that she would be contacting domestic violence shelters, and when the social worker followed up with Mother the following day, Mother told her she was near Ada or Ardmore, Oklahoma; Mother was actually at a shelter in Gainesville, Texas.

         On December 21, 2016, the Texas Department of Family and Protective Services (Department) received a referral for neglectful supervision of Dylan and Gabby by Mother and for physical abuse of Dylan and Gabby by Father. The next day, Child Protective Services (CPS) Investigator Teniqua Teamer contacted the person who had made the referral and learned that Mother had extensive prior CPS history in both Oklahoma and Florida. The reporter relayed that Mother had previously made many false reports, that she was known to falsify situations to get her way, and that she often acted as if she had a hard time remembering things she had previously said. The reporter told Teamer that there were concerns for Dylan and Gabby due to multiple CPS referrals, exposure to domestic violence, and Mother's mental health issues. Teamer further learned that Mother had a pattern of going to various domestic violence shelters and then leaving them to return back to Father.

         The reporter informed Teamer that the Florida Department of Children and Families had previously removed two of Mother's children from a prior marriage from her custody, that Mother had no contact with those children, and that Mother was even known not to claim them. The reporter conveyed concerns regarding Mother's ability to care for Dylan and Gabby because Mother had never undergone a psychological evaluation for which she had previously been referred. And Teamer learned of Father's earlier outburst that he should have murdered Mother.

         On December 22, 2016, Teamer, along with another CPS Investigator, Jennifer Tansini, went to the Gainesville women's shelter where Mother was staying. Teamer interviewed Gabby, who stated that Mother and Father often argued with one another and that the police had been to their home on several occasions. Gabby said that Mother had a lot of blood on her knee and other marks on her body. According to Gabby, Father had hurt Mother, something that had happened on other occasions, and Gabby further relayed that there had been several occasions where she and Dylan had tried to stop Mother and Father from fighting.

         Teamer also interviewed Mother, who acknowledged that she had a history of domestic violence. But she also stated that she would always return to Father because she was his wife and that was what she was supposed to do. Mother told Teamer that the police had come to her home on three occasions because of domestic violence. Teamer asked Mother about the details of the December 19 domestic-violence incident. Mother stated that while she was homeschooling Dylan, she stood up, and Father forcefully pushed her to the ground, causing her to hurt her head and back. She yelled for Dylan and Gabby to get help, but Father made the children get in the car and locked them inside. Mother said that Father was angry, came back toward her, and blocked her path, but she was able to move away from him and get her children out of the car. After she did so, however, Father came after her, knocked her to the ground while she was holding Gabby, and attacked her.

         Teamer also spoke with Sarah Roberson, a DHS employee. Roberson stated that in 2012, DHS had set up a safety plan for Dylan and Gabby, placing them with a family where they went to church. But according to Roberson, Mother kept stalking the family with whom Dylan and Gabby had been placed and calling their phones. Roberson further said that Mother always appeared to be dishonest and was known to falsely report to the sheriff's office and the child abuse hotline. According to Roberson, Mother often would say things and then claim that she had not said them, and she often appeared as if she did not remember things she had been told.

         Following the investigation on December 22, Tansini and Teamer notified Mother that the Department intended to take emergency possession of Dylan and Gabby. See Tex. Fam. Code Ann. §§ 262.104, .109 (West Supp. 2017). Mother was allowed to visit with Dylan and Gabby, and Teamer observed this visit. Mother was instructed not to discuss the case with the children.Nevertheless, she told Dylan that CPS was taking him away, causing him to start crying and screaming. She told Dylan several times that it was not her fault that CPS was taking him away. Mother repeatedly spoke of the case to Dylan and told him that CPS was awful, and she was repeatedly told not to talk about the case or the visit would be ended. Still Mother continued, stating that CPS did not like Christians and that the children did not have a father and now would not have a mother. After this remark, Teamer ended the visit.

         Based on her investigation, Teamer believed that Mother and Father had endangered Dylan's and Gabby's lives and concluded there was an immediate danger to their physical health or safety. Consequently, the Department took emergency possession of Dylan and Gabby. See Tex. Fam. Code Ann.§ 262.104. The Department then filed a petition to terminate Mother's and Father's parental rights as to Dylan and Gabby. On December 27, 2016, the trial court signed an order naming the Department as temporary sole managing conservator of Dylan and Gabby, and the case eventually proceeded to final trial on December 20, 2017.

         Following a bench trial, the trial court found by clear and convincing evidence that Mother and Father had committed the acts specified in family code subsections 161.001(b)(1)(D) and (E) and that termination of their parental rights was in Dylan's and Gabby's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (b)(2). Based on those findings, the trial court terminated Mother's and Father's parental rights to Dylan and Gabby. Mother and Father appeal from the trial court's termination order.

         II. SUFFICIENCY OF THE EVIDENCE

         In her second issue, Mother contends the trial court's statutory-grounds and best-interest findings are not supported by legally or factually sufficient evidence. In his sole point, Father contends the evidence is legally and factually insufficient to support the trial court's best-interest finding. Since the applicable law and analysis relevant to Mother's second issue and Father's sole point are similar, we discuss Mother's second issue and Father's sole point together.

         A. Applicable Law and Standard of Review

         A trial court may terminate a parent-child relationship if it finds by clear and convincing evidence that the parent's conduct satisfies one of the statutory grounds for termination set forth in the family code and that termination is in the best interest of the child.[5] See Tex. Fam. Code Ann. § 161.001(b)(1), (2). Evidence is clear and convincing if it "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 2014)

         In reviewing the evidence for legal sufficiency, we determine whether all of the evidence, when viewed in the light most favorable to the challenged finding, is such that a factfinder could reasonably form a firm belief or conviction that the challenged finding is true. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In conducting this inquiry, we resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so; we disregard all evidence that a reasonable factfinder could have disregarded; and we defer to the factfinder's determinations of witness credibility unless those determinations are unreasonable. See id.

         In reviewing the evidence for factual sufficiency, we conduct an exacting review of the entire record to 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 A.B., 437 S.W.3d 498, 502-03 (Tex. 2014). In conducting this inquiry, we afford due deference to the factfinder's findings. Id. at 503. The evidence is factually insufficient 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. Id.

         B. Statutory Termination Grounds Findings

         Upon hearing the evidence presented at trial, the trial court found that Mother's and Father's conduct satisfied two of the statutory grounds for termination: it found that Mother and Father had knowingly placed or knowingly allowed Dylan and Gabby to remain in conditions or surroundings which endangered their physical or emotional wellbeing, see Tex. Fam. Code Ann. § 161.001(b)(1)(D), and it found that Mother and Father had engaged in conduct or knowingly placed Dylan and Gabby with persons who engaged in conduct which endangered their physical or emotional well-being, see id. § 161.001(b)(1)(E). Subsections (D) and (E) are commonly referred to as the endangerment grounds for termination. See In re S.M.R., 434 S.W.3d 576, 579 (Tex. 2014).

         Along with a best interest finding, a finding of only one ground alleged under section 161.001(b)(1) is sufficient to support a judgment of termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In resolving the first part of Mother's second issue-her contention that the evidence is legally and factually insufficient to support the trial court's statutory-grounds findings-we will focus our analysis on the trial court's subsection (E) finding.

         "Endangerment" means to expose to loss or injury, to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re M.E.-M.N., 342 S.W.3d 254, 261 (Tex. App.-Fort Worth 2011, pet. denied). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical or emotional well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. M.E.-M.N., 342 S.W.3d at 262; see Tex. Fam. Code Ann. § 161.001(b)(1)(E). Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. M.E.-M.N., 342 S.W.3d at 262; see Tex. Fam. Code Ann. § 161.001(b)(1)(E). It is not necessary, however, that the parent's conduct be directed at the children or that the children actually suffer injury. Boyd, 727 S.W.2d at 533; M.E.-M.N., 342 S.W.3d at 262. The specific danger to the children's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; M.E.-M.N., 342 S.W.3d at 262. To determine whether termination is necessary, courts may look to parental conduct occurring both before and after the child's birth. M.E.-M.N., 342 S.W.3d at 262.

         "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." N.A.B. v. Tex. Dep't of Family & Protective Servs., No. 03-14-00377-CV, 2014 WL 6845179, at *2 (Tex. App.-Austin Nov. 26, 2014, no pet.) (mem. op.) (cleaned up). Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment, as can a parent's exposing her child to the risk of domestic violence from others. Id.

         1. Mother's Contention

         In the first part of her second issue, Mother focuses her argument specifically on the evidence of domestic violence between her and Father. She contends the record shows that she and Father only had "two isolated events of domestic violence" over the course of six or seven years: the December 19, 2016 altercation that led to the Department's emergency removal of the children and another instance of domestic violence that occurred sometime in 2010 or 2011. She argues that this evidence is legally and factually insufficient to support the trial court's endangerment findings because those two incidents did not demonstrate that she engaged in a deliberate and conscious course of endangering conduct.

         2. Factually and Legally Sufficient Evidence Supports the Trial Court's Subsection (E) Finding

         We do not agree with Mother's suggestion, implicit in her argument, that the only evidence of endangering conduct in the record is "two isolated events of domestic violence" over the course of six or seven years.[6] Instead, the entire record discloses that Mother has engaged in a pattern of endangering conduct encompassing no fewer than three states over a period of nearly two decades that involves not only the two children at issue in this proceeding but also two children from a previous marriage.

         a. Mother's Previous Marriage and Conduct Involving Her Children from that Marriage

         At trial, Mother testified that prior to her marriage to Father, she was married two other times. One of those marriages was to R.S., whom she testified she married in 1995. While living in Florida, Mother and R.S. had two children, Nancy and Natalie.[7] Mother testified that she and R.S. divorced in 1998. According to Mother's testimony, she was awarded custody of Nancy and Natalie, but R.S. eventually obtained custody of them.

         The trial court admitted a complaint affidavit showing that in December 1999, the State of Florida charged Mother with knowingly giving false information to a law enforcement officer concerning the alleged commission of a capital felony and with knowingly and willfully making a false report of child abuse. See Fla. Stat. Ann. §§ 39.205(9)[8], 837.05(2). According to the complaint affidavit, in June 1999, Mother reported to the Polk County Sheriff's Department that R.S. had sexually abused two-year-old Nancy. An investigation ensued, and the PolkCounty Sheriff's department had Nancy undergo a sexual assault examination at the hospital, which resulted in negative findings. Further investigation revealed that Mother had called Florida's child abuse registry on eighteen occasions over a four-month period to report that R.S. was sexually abusing Nancy, with each report being nearly identical. An investigator interviewed Nancy, who told the investigator that Mother had told her to tell the investigator that R.S. had touched her.

         In October 1999, Mother made two additional reports to the Polk County Sheriff's Department that R.S. was sexually abusing Nancy, and Mother even took Nancy to the hospital to undergo yet another sexual assault examination, an examination that yielded no physical findings of sexual abuse. According to the complaint, from June 1999 to November 1999, investigators interviewed Nancy approximately five times, and she had been examined by three doctors for sexual abuse. Neither the interviews nor the examinations revealed that Nancy had been sexually abused.

         In November 1999, Mother reported to the Polk County Sheriff's Department that R.S. had sexually abused her during their marriage, an allegation investigators determined was unfounded. Based upon all of this conduct, Mother was charged with making a false report to law enforcement and with making a false report to the child abuse registry.

         The trial court admitted another complaint affidavit showing that in November 2000, the State of Florida charged Mother with interfering with child custody. See Fla. Stat. Ann. § 787.03. The affidavit stated that R.S. had been awarded custody of Nancy and Natalie in April 2000, a fact known to Mother. Yet on October 30, 2000, Mother attempted to have a deputy remove Nancy and Natalie from R.S. by presenting custody papers dated March 27, 2000. The deputy informed Mother that her papers were not current and that R.S. had custody of Nancy and Natalie. The next day, Mother presented the same March 27, 2000 papers to a different deputy in another attempt to have the deputy remove Nancy and Natalie from R.S.'s custody. Mother was subsequently charged with interfering with child custody.

         The trial court admitted another complaint affidavit showing that in July 2001, the State of Florida had charged Mother with causing a Florida circuit court judge to make a false report of child abuse. See Fla. Stat. Ann. § 39.205(9). The affidavit stated that Mother had filed an emergency motion with the court requesting that Nancy be seen by a doctor because she appeared to be dehydrated, pale, and very feverish. The motion was referred to the judge, who, upon reading it, reported the allegation of neglect to Florida's child abuse registry. The investigation of that allegation revealed that Nancy had suffered no abuse or neglect. Consequently, the State of Florida charged Mother with causing the circuit court judge to make a false report of neglect.

          b. Mother's Marriage to Father and Conduct in Florida Involving Dylan and Gabby

         Mother married Father in January 2009. They lived in Florida, where Dylan was born in September 2009, and Gabby was born in March 2011. The trial court admitted records from the Florida Department of Children and Families showing that Mother's previous pattern of making false reports had continued during her marriage to Father and that the Department of Children and Families had become involved when Dylan was only five days old. These records are voluminous, but we highlight some of the probative evidence they contain.

         September 2009

• The Department of Children and Families opened an investigation five days after Dylan was born. Mother had made a claim of domestic violence against Father. The report notes that Mother had made similar false claims of domestic violence against Father in the past.
• Mother had a pattern of false reporting and physical violence, as well as a pattern of contacting law enforcement during verbal disagreements and alleging that she was a victim of domestic violence.
• Father indicated that Mother regularly accused him of being physically abusive and that he had been arrested due to false allegations Mother had made in the past.
• Father indicated that Mother threw things and slammed doors when they had verbal disagreements, that she had recently thrown a plate during a verbal disagreement with him, and that Dylan was present when that incident occurred.
• The Department of Children and Families had eleven prior intakes involving Mother dating back to her interactions with Nancy and Natalie.

         November 2010

• The Department of Children and Families opened an investigation upon a report that Mother and Father had gotten into a disagreement. Mother was pregnant and felt unsafe in the home.
• Mother told an investigator that Father was acting irrational and unpredictable. She stated she had called a domestic violence shelter and intended to go to the domestic violence shelter as soon as the investigator left.
• The investigation yielded no evidence of current violence, and the report noted Mother had a history of calling law enforcement and making false reports of domestic violence.

         May 2011

• The Department of Children and Families opened an investigation upon a report that Father told Mother to make Gabby stop crying and then hit Gabby, leaving a red mark near her back.
• Mother had locked Father out of the house, Dylan could see Father outside, and Dylan was screaming that he wanted Father.
• Mother and Father had unrealistic expectations in thinking that their behavior and the condition of their house would not have an impact on Dylan and Gabby.
• Father stated that Mother cursed and threw things in the home and that she made false allegations against him.

         August 2011

• The Department of Children and Families opened an investigation upon a report that Father had been arrested for domestic violence against Mother.
• Mother and Father were driving in a car with Gabby. Father was driving and he was drinking. Mother grabbed the steering wheel and forced the car off the road, resulting in an accident. Father hit Mother in the face.
• Mother left Dylan with a woman whom she had only just met the day before and did not pick Dylan up until the following day. The woman was not able to contact Mother. This was not the first time she had done something like this.
• Mother, Dylan, and Gabby had been evicted from their residence. Mother was living with a friend who was trying to help them get into a domestic violence shelter.
• Mother's statements to investigators suggested that domestic disputes between Mother and Father in the presence of the children were an ongoing behavior between them.

         September ...


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