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In re P.N.T.

Court of Appeals of Texas, Fourteenth District

June 11, 2019


          On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2017-04069J

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.


          Jerry Zimmerer Justice

         This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. Tex. Fam. Code Ann. § 109.002(a-1). The child is Paige.[1] The appellants are her mother (K.M.), father (C.T.), and paternal grandparents (intervenors C.T. and F.T.). The trial court terminated Mother's and Father's parental rights and appointed the Texas Department of Family and Protective Services (the Department) to be Paige's managing conservator.

          Grandparents raise three issues: (1) the trial court lost jurisdiction and should have dismissed the case; (2) the trial court erred in denying them a jury trial; and (3) the trial court erred in appointing the Department, rather than them, as Paige's conservator. Mother and Father both challenge the evidentiary sufficiency to support termination; neither challenges the trial court's decision on conservatorship.

         We begin with the procedural issues raised by Grandparents. First, they did not preserve error regarding dismissal of the case. Any error in failing to dismiss this case would have resulted in only a voidable judgment, not a void judgment, so their failure to preserve error is dispositive of that issue. Second, the trial court did not abuse its discretion in denying Grandparents a jury trial because they did not timely demand a jury trial.

         Next, we turn to the substantive issues. Sufficient evidence supports the trial court's findings that (1) Mother and Father endangered Paige, and (2) termination of their parental rights is in Paige's best interest. Grandparents have not shown the trial court abused its discretion in appointing the Department as Paige's managing conservator.

         Therefore, we affirm the trial court's decree.


         In their first issue, Grandparents contend the trial court should have dismissed the suit under section 263.401 of the Family Code, the statute that sets the deadline to begin trial in a termination case.

         The version of section 263.401 that governs this case[2] states in relevant part:

(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.

Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, sec. 263.401, 2015 Tex. Sess. Law Serv. 3268, 3283 (amended 2017; current version at Tex. Fam. Code Ann. § 263.401(a)). In plain English: with certain exceptions, the deadline to begin trial of a termination case is the Monday following the first anniversary of the day the trial court appointed the Department as the child's temporary managing conservator. A party who seeks to enforce the one-year deadline must file a motion to dismiss before a trial on the merits commences. Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 3, sec. 263.402(b), 2007 Tex. Sess. Law Serv. 1837, 1838 (amended 2017; current version at Tex. Fam. Code Ann. § 263.402).[3]

         The trial court appointed the Department as Paige's temporary managing conservator on August 22, 2017.[4] Trial began on July 26, 2018, less than one year later. Accordingly, dismissal was not required because the trial began timely under section 263.401(a).

         On appeal, Grandparents contend trial did not really begin until October 22, 2018. They assert the proceeding on July 26, 2018 was a sham trial, conducted solely to circumvent the 12-month deadline. They filed a motion to dismiss on October 16, 2018. If trial did not begin until October 22, 2018, they say, then their motion to dismiss was timely under section 263.401(b)(2), and the judgment is void.

         We first consider whether the trial court's alleged error in not dismissing the case rendered the judgment void or merely voidable. "[A] judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court." Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). The dismissal dates in the version of section 263.401 applicable to this case are not jurisdictional. In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 641-42 (Tex. 2009) (orig. proceeding). A judgment is not void merely because it was made after the dismissal dates in that version of section 263.401.

         If a judgment is merely voidable, challenges to that judgment are subject to the rules for preservation of error. See Roccaforte v. Jefferson Cty., 341 S.W.3d 919, 923 (Tex. 2011). To preserve a complaint for appellate review, the record must show (1) the complaint was made to the trial court by a timely and sufficiently specific request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule and the complaining party objected to the refusal. Tex.R.App.P. 33.1(a). We assume for the sake of argument that Grandparents' motion was timely. The record does not reflect that the trial court ruled on the motion, nor does it reflect that Grandparents sought a ruling but the trial court refused to rule. Grandparents did not mention the motion to dismiss when trial resumed on October 22. Based on these facts, we conclude Grandparents have not preserved error regarding dismissal. We overrule their first issue.

         Jury Trial

         Grandparents next contend the trial court erred in denying their request for a jury trial. We review the trial court's denial of a jury demand for an abuse of discretion. In re A.L.M.-F., No. 17-0603, __S.W.3d__, 2019 WL 1966623, at *8 (Tex. May 3, 2019). A trial court abuses its discretion when its decision is arbitrary, unreasonable, and without reference to guiding principles. Id. We examine the entire record in our review. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

         The right to a jury trial is guaranteed by the Texas Constitution. Tex. Const. art. I, § 15 ("The right of trial by jury shall remain inviolate."). The existence of a substantive right is distinct from the procedures constitutionally required to protect that right. A.L.M.-F., 2019 WL 1966623, at *8. Demand for a jury trial in a civil case is governed by Texas Rule of Civil Procedure 216. The rule requires both a written request and, unless otherwise provided by law, payment of a fee. See Tex. R. Civ. P. 216. The written request must be filed a reasonable time before the date set for trial on the non-jury docket, but not less than 30 days in advance. Tex.R.Civ.P. 216(a).

         Grandparents filed a written jury demand and paid the jury fee on July 24, 2018. Trial was set to begin two days later, on July 26. Grandparents did not comply with rule 216(a) because they did not make their request at least 30 days in advance of the trial setting. Accordingly, the trial court did not abuse its discretion in denying their request for a jury trial.

         Similar to their claim for dismissal, in which they argued the July 26 trial was a sham, Grandparents contend the trial setting for July 26 was also a sham. For that reason, they say, their jury request was timely under rule 216 because it was made more than 30 days in advance of the real trial setting of October 22. Accepting their contention as true only for the sake of argument, we nevertheless conclude Grandparents did not preserve error. To preserve a complaint about the denial of a jury trial, the complaining party must object when the trial court proceeds with a bench trial. In re K.M.H., 181 S.W.3d 1, 16 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (supp. op. on reh'g). Grandparents did not object to the trial court's conducting a bench trial. Therefore, they did not preserve any error in the denial of a jury trial. We overrule their second issue.

         Termination and Conservatorship

         We now turn Mother's and Father's challenges to termination and Grandparents' challenge to conservatorship.

         I. Evidence

         The following witnesses testified at trial: Department investigative caseworker Shaun Santiago; two deputy sheriffs from Montgomery County, Troy Moseley and Cody Lowry; Paige's therapist, Diane Vines; the psychologist who evaluated Paige, Andrew Brams, Ph.D.; Father's therapist, Kelly Landry; Mother; Father; Grandmother; Grandfather; Department conservatorship caseworker Victoria Palmer; Paige's guardian ad litem, Susan Arredondo; Father's common-law wife, Dana; child welfare and placement expert Lisa McCartney; and Paige's foster mother.

         The exhibits admitted into evidence without objection include: Santiago's pretrial removal affidavit; photos of Paige; Paige's medical records; criminal records concerning Mother's boyfriend, Luke, who was accused of causing the injuries to Paige that began this case; Paige's educational records; documentation regarding Mother's and Father's attendance and completion of parenting classes; records from one of Father's therapists; police records regarding Father; drug and alcohol test results for Grandparents; Grandmother's medical records; the Department's report of Grandparents' home study; photos of Grandparents' home; and a status report by the Department. On the Department's request and without objection from the other parties, the trial court took judicial notice of all the orders in this case. Admitted over Mother's and Father's objection were family service plans the Department created for them; a report of Brams' psychological evaluation of Paige; photos of Father; and printouts of text messages between Father and Dana.

         A. Events leading to removal and this lawsuit

         The Department received a referral on a Sunday in July 2017 alleging physical abuse and medical neglect of Paige, then six years old. Paige presented at the hospital with severe bruises on her face, arms, and knees, allegedly due to falling while standing in the bathtub.

         1. Paige's injuries

         Santiago and J. Rouse, an investigator for the Harris County Sheriff's Office, each observed Paige at the hospital. Santiago's description is taken from his affidavit and his testimony. Rouse's description is taken from the criminal complaint against Luke regarding Paige's injuries.

         Santiago saw Paige was "covered with bruises." Specifically, she had large bruises on her forehead and the side of her face, both arms, and both legs. Her face and one of her knees appeared swollen. She had black eyes. And she had "clumps of hair" missing, leaving bald patches on her head. Santiago testified, "[T]here is no way, in my experience, that a child could receive that many bruises from one or two falls in the bathtub."

         Rouse observed Paige to have "swollen red marks to her forehead, bruising under each eyes [sic], and bruising to her elbows." Rouse reviewed Paige's medical records. They indicated she had "6 contusions to her face to include 'swelling to the forehead.'" According to the records, Paige told a child life specialist that "[she] was hurt on purpose, the wall did it." The records state Paige's injuries were not consistent with self-injury.

         2. Mother's account a. Mother's statements at the hospital

         Santiago and Rouse both interviewed Mother at the hospital. The facts in this section are taken from Santiago's affidavit and testimony and the criminal complaint against Luke.

         Statements to Santiago. Santiago testified that as soon as he entered Paige's hospital room, "[Mother] immediately said, It wasn't me. She fell in the shower. I was at work." According to Santiago's affidavit, Mother offered him the following version of events leading up to Paige's hospitalization.

         Paige had been with Grandparents and was set to be returned to Mother at her apartment on Saturday. Mother had to go to work, so she instructed Grandparents to drop Paige off with Luke. She told Santiago that Luke had begun watching Paige on his own just the previous week. When Mother called home, Paige was watching television and seemed happy. Luke called Mother around 7:00 p.m. to report Paige had urinated on herself. Mother told Santiago that Paige was fully potty-trained and had never urinated on herself.

         "A short while later," Luke called Mother's work again and left word with a co-worker of an emergency at home. Mother was too busy with customers to take the call or call him back. She left work around 10:00 p.m., and she did not talk to Luke until she got home.

         Once home, Luke told Mother what had happened. Luke said he directed Paige to shower to wash off the urine. He said Paige got undressed behind the shower curtain, then handed him her clothes. He gave Paige a sponge with soap. At that point, Luke told Mother, Paige became upset and screamed for Mother, and during her distress she fell, hitting her head twice on the way down. Luke said he "bear hugged" Paige to calm her down, then put her to bed. Santiago asked if Mother was comfortable with Luke bear hugging her naked daughter, and Mother emphatically said no.

         Upon hearing what happened, Mother went to Paige's bedroom. Mother told Santiago she did not see bruises on Paige's head. Still, Mother wanted to take Paige to the hospital, she told Santiago, but she did not because Paige was "difficult to wake up." She said it did not occur to her to call 911. Mother said she stayed up all night and checked on Paige frequently. She also told Santiago that Paige had been diagnosed as "mentally disturbed." Mother said Paige hits herself against the wall, causing bruises, and pulls out her hair.

         Mother took Paige to a regional hospital at noon the following day, Sunday. At some point that afternoon, Paige was transferred to a hospital in the Houston Medical Center.

         Statements to Rouse. According to Rouse, Mother said she had "left for work that afternoon leaving [Paige] in the care of [Luke] . . ., who is her fiancé." When she returned home that night, Mother told Rouse, she saw Paige had the injuries Rouse observed. Luke reportedly told Mother he was helping Paige take a shower when she "became angry and began hitting her head on the wall," so he "had to bear hug [her] to prevent her from hitting her head further." Mother said Luke told her Paige "pulled away and landed on her elbows and knees." Mother took Paige to the hospital after Paige complained of a headache the following day.

         b. Mother's trial testimony

         At trial, Mother changed her account. She said Father was supposed to have custody of Paige for all of July, though Grandparents frequently took care of her for him. Even though Grandparents should have returned Paige to Father after their visit, Father allegedly had told Mother the previous evening that he had his "own life," and Paige was "[Mother's] problem." Mother testified she did not know Grandparents would bring Paige to her apartment, and she found out only when she called home and Luke said Paige was watching television. Grandmother corroborated that testimony when she confirmed she and Grandfather brought Paige to Mother's apartment at Father's direction.

         Mother testified Luke texted her, not called her, about Paige's urination. She said she responded by instructing Luke to tell Paige to "change herself" and Mother would "take care" of her in the morning, by which she meant she would bathe her. She explained she does not let Paige in the bathtub by herself.

         At some point thereafter, Mother testified, Luke called the store where she worked and said he needed to speak with Mother. She testified he did not say there was an emergency. Mother was not alarmed, she explained, because Luke "always called [her] job." Just as she had told Santiago at the hospital, she testified she was too busy to talk to Luke at the time. But contrary to her statement to Santiago that she did not communicate with Luke until she got home, at trial she testified she texted Luke later, asking him if Paige was okay. He allegedly responded Paige was fine and he had given her a warm rag and told her to wash herself.

         Paige was already asleep when Mother got home close to midnight. As Mother walked in the door, Luke told her Paige had slipped but did not say she had slipped in the bathtub. Rather, he "just said she fell and-he said it was outside she hurted [sic] her knees and that was it." Mother testified Paige falls down a lot, is "klutzy," and has balance problems. As a result, she said, Paige normally has bruises on her knees. Counsel for the Department asked Mother if Paige's forehead was bruised. Mother responded:

A. Honestly, I didn't even check, like, they didn't tell me she was injured-he didn't tell me she was injured. He just told me she slipped and that was it.
. . .
Q. But having somebody tell you your 6-year-old child, who never has accidents, has [urinated on] herself, didn't raise enough concern for you to go and check on her; is that correct?
A. I guess not.

         It is not clear whether Mother looked in on Paige but did not inspect for bruises or did not see Paige at all. Regardless, Mother testified she did not try to wake Paige. On cross-examination, Mother was asked about the discrepancy between her testimony and Santiago's testimony that Mother told him she tried but was unable to wake Paige. She insisted Santiago was lying. If she had tried but could not wake Paige up, Mother testified, she would have taken her to the hospital.

         The next morning, Paige, in a position in which Mother did not have a full view of Paige's head, told Mother her head hurt. Mother testified:

I said, Well, let me get you some Tylenol. She moved her hand and I said-I'm not going to lie-I said a cuss word. I said, What the- happened? And she says, Oh, I fell. Remember? I said, No. I said, I was just told you hurt your knee that was it.

         Mother gave Paige Tylenol, then Luke drove them to the hospital.

         Mother testified she does not believe falling in a bathtub, even falling twice, could have caused Paige's injuries. If she could go back in time, she said, she would have woken Paige.

         3. Paige's account

         Santiago interviewed Paige while Mother was in the room. He described Paige as "still very scared." According to Santiago's affidavit, Paige first told him she fell in the bathtub. She said she was in the bathtub because she needed to take a shower because she had urinated on herself. Paige said Luke was making her stand in the corner because he was angry with her. She needed to use the bathroom and ended up urinating on herself. As she stood in the bathtub, Luke handed her a sponge, and she fell. Paige told Santiago she did not know how she fell and could not remember. At trial, Santiago called attention to how Paige changed her story: "She said that she had fallen in the shower. And then she changed to say that she had peed herself. That [Luke] had yelled at her. . . . And that he had placed her in the shower and her mom wasn't there so she fell in the shower."

         4. Luke's account

         Luke told Santiago he and Mother began dating in September 2016 and moved in together in March 2017. Contrary to Mother's assertion that Luke had been watching Paige for only a week, Luke told Santiago he had been watching Paige on his own for two or three months. He said she had no bruises or marks when Grandparents dropped her off. Luke contended the only methods of punishment he practices on Paige are making her stand in the corner or taking away her phone.

         Luke offered the following account. He asked Paige to pick up her toys, but Paige talked back to him, then had a temper tantrum in which she banged her head against the wall. He took her eyeglasses so they would not break and put her in another part of the apartment. She kept banging her head against the wall, and then she urinated on herself. He believed she was having a seizure. But he could not explain his belief, admitting Paige had never had a seizure before. He also echoed Mother's statement that Paige had not urinated on herself previously. Luke told Santiago that Paige fell on the floor, so he picked her up, carried her to the bathroom, and put her in the shower. He said Paige disrobed behind the shower curtain and gave him her clothes. He then turned on the water and gave her a sponge with soap. The affidavit does not reflect what, if anything, Luke said happened after he handed Paige the sponge.

         Luke told Santiago he sent Paige to bed and checked on her every 30 minutes or so because he knew she was injured. Still, he admitted, it never occurred to him to take her to the hospital. Luke said he did not consume alcohol before the incident in question but drank four or five beers around 9:30 p.m.

         5. Mother's departure from the hospital

         Santiago confronted Mother about the discrepancies between her and Luke's versions of events. Mother became extremely agitated, saying the Department was "trying to pin this" on her. She also said Luke was moving out, and she insisted she "needed to be there." Mother left the hospital before Paige was discharged. Paige could not be placed with Father due to his criminal history. She was placed in a parental child safety placement (PCSP) with Grandparents. Santiago testified he had no problem with that placement at that time.

         6. Paige's interview at the Child Assessment Center

         Paige was interviewed five days later at the Child Assessment Center. Santiago and Rouse both watched the interview. During that interview, she disclosed that Luke banged her head against the wall, which made her urinate on herself. She said he threw her into the bathtub, then yelled at her to get out, then dragged her out of the bathtub and pushed her to the floor. She told the interviewer her body felt sad when he pushed her to the floor. Rouse believed Paige to be "reliable and credible."

         Santiago called Mother that day and told her the Department would be seeking custody of Paige. Mother became very irate and denied abusing Paige. Santiago assured her the Department did not believe she physically abused Paige but did believe she failed to timely seek medical attention for her daughter. Mother denied Luke abused Paige, saying Luke is a good man and Paige is easily influenced to say whatever people want her to say. When Santiago reiterated that the evidence implicated Luke, Mother said, "Go f*** yourself and I will get a lawyer and see you in court."

         At trial, Mother denied her denial. She said she did not tell Santiago that Luke could not have hurt Paige. She said she believes Luke caused Paige's injuries. She also testified, "The night . . . Mr. Santiago told me I could not have my daughter[, ] I called [Luke] and told him to get his stuff out and get his kid out and get out of my apartment."

         7. Removal and this lawsuit

         A month to the day after Paige was hospitalized, the Department removed Paige and filed this lawsuit for protection of a child, conservatorship, and termination. The record does not reflect what precipitated the filing at that time.

         The trial court conducted a full adversary hearing two weeks later, after which it named the Department as Paige's temporary managing conservator. Paige remained with Grandparents. About six weeks later, the trial court signed an order approving the family service plans the Department created for Mother and Father and requiring the parents to comply with their respective plans.

         B. Paige

         1. Before and shortly after removal

         Paige was significantly developmentally delayed before she came into care. Child placement specialist Lisa McCartney testified Paige could not read and did not know numbers.

         Paige had lice at Grandparents' home. They worked hard to eradicate the lice, but the outbreak was ongoing when she arrived at her foster home. The foster mother described Paige as frail and underweight at that time. Paige also arrived with "4-inch blades" in her suitcase. The record does not reflect where she got the knives. Emotionally, the foster mother testified, Paige was very nervous.

         According to Paige's foster mother, "Everybody noticed her delays right away, between the doctor and the school." It took Paige "a while to kind of process information and then reply to somebody." Speech therapy, occupational therapy, and special education services were ...

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