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In re D.C.

Court of Appeals of Texas, Sixth District, Texarkana

June 13, 2019


          Date Submitted: June 5, 2019

          On Appeal from the 336th District Court Fannin County, Texas Trial Court No. FA-17-43182

          Before Morriss, C.J., Burgess and Stevens, JJ.


          Josh R. Morriss, III Chief Justice

         Judy appeals the termination of her parental rights to her children, Dora and Ethan, [1]rendered on the petition of the Texas Department of Family and Protective Services (Department). The termination of Judy's parental rights was based on findings by the trial court: (A) that she knowingly placed or allowed Dora and Ethan to remain in conditions or surroundings which endangered their physical or emotional well-being; (B) that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being; (C) that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of Dora and Ethan, who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of their removal from her under Chapter 262 for abuse or neglect; and (D) that termination of her parental rights was in the children's best interest.[2] See Tex. Fam. Code Ann. §161.001(b)(1)(D), (E), (O), (2) (Supp.).

         On appeal, Judy argues that the evidence is legally and factually insufficient to support the four findings listed above, that the trial court erred in admitting allegedly undisclosed evidence, and that the jury was erroneously overextended by being required "to continue to hear evidence for well over 12 hours and when it was clearly apparent that the jury was beyond their ability to retain information."

         We conclude that (1) the trial court's termination findings were based on sufficient evidence, (2) the trial court did not abuse its discretion in admitting the challenged evidence, and (3) Judy failed to preserve for our review her complaint of jury overexertion. Accordingly, we affirm the trial court's judgment.

         (1) The Trial Court's Termination Findings Were Based on Sufficient Evidence

         "The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental right to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof-clear and convincing evidence-is required at trial." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500. "[I]nvoluntary termination statutes are strictly construed in favor of the parent." In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.-Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20).

         To terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001 (Supp.); In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012). "Clear and convincing evidence" is that "degree of proof that 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; see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.

         In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet.). We assume the fact-finder resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.

         In our review of factual sufficiency, we give due consideration to evidence the fact-finder could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006)(per curiam). We consider only that evidence and determine "whether [it] is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." Id. at 108 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). "If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. "[I]n making this determination, [we] must undertake 'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26).

         Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.-Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).

         "To affirm a termination judgment on appeal, a court need uphold only one termination ground-in addition to upholding a challenged best interest finding-even if the trial court based the termination on more than one ground." In re N.G., No. 18-0508, 2019 WL 2147263, at *1 (Tex. May 17, 2019) (per curiam); see In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.-Texarkana 2013, pet. denied) (citing A.V., 113 S.W.3d at 362; In re K.W., 335 S.W.3d 767, 769 (Tex. App.- Texarkana 2011, no pet.); In re N.R., 101 S.W.3d 771, 775 (Tex. App.-Texarkana 2003, no pet.)). However, due process demands that we also review the evidence supporting findings under Grounds D and E when they are challenged on appeal because termination of parental rights under these Grounds "may have implications for . . . parental rights to other children." N.G., 2019 WL 2147263, at *2, 3. Therefore, we begin with Grounds D and E.

         a. The Evidence at Trial

         Judy lived with her fiancée, Craig, and her children, sixteen-year-old Jack, fifteen-year-old Dora, and six-year-old Ethan.[3] Shatera Gunn, an investigator with Child Protective Services (CPS), testified that this case began when Dora made an outcry of sexual abuse against Jack, who was already on community supervision for assaulting Judy. Dora told Gunn that she was asleep on the couch and "woke up with her pants and panties pulled down to her ankle and her bra unbuckled" next to Jack, who was sitting on the couch awake. Dora said that Jack was the only person in the room and, while she was uncertain, she "felt like [Jack] had rubbed her thigh." Dora testified that Jack offered to do her chores if she kept the incident secret.

         According to Gunn, Judy and Dora's aunt did not believe the outcry and claimed the child had a history of lying and made the allegation up because she was upset at being punished for making bad grades in school and wanted to get someone else in trouble. Gunn testified that, although there was not enough evidence to criminally charge Jack with sexual assault, Dora never wavered from her version of the alleged assault.

         Judy admitted that she sometimes left the children home alone and that Jack, Dora, and Ethan were home alone when Dora alleged Jack had unclothed her. Judy testified that she believed Dora was lying about the accusation because, although she had cried after the incident, she was "laughing and giggling and trying to get the attention of everyone around her" at the hospital. According to Judy, Dora claimed Jack had "raped" her, but said the next day "that it didn't happen, that she was mad at [Judy]." Judy testified that one of Dora's counselors had also reported that Dora recanted her allegation and that Dora tended to lie. During cross-examination, Judy admitted the possibility that Jack had engaged in inappropriate activities with the children when they were left alone and admitted that Beatrice, Dora, and Ethan were all afraid of Jack.

         Kassi Lightfoot, the program director of the Fannin County Children's Advocacy Center (CAC), testified regarding a CAC forensic interview she had conducted with Dora and Ethan. Lightfoot said Judy refused her request to stay after Dora's interview, yelled at her, and fled the CAC with Dora. Lightfoot was concerned about Dora's safety because Judy was returning Dora home after Lightfoot explained it was unsafe for her to remain in the house with Jack given the allegation.

         Gunn testified that a prior CPS case was already pending against Judy when the decision was made to remove Dora from the home while investigating her outcry. After the removal, Gunn said that Dora was physically attacked by Jack while they were at school. When asked about the attack, Judy said it was Dora's fault because "[s]he was picking on him at school, telling people that he had raped her."[4] Dora had a black eye, said it was due to a medical condition, and denied that it was a result of Jack's assault at school. According to Gunn, Jack's teacher reportedly witnessed the incident and saw Jack hit Dora in the face.

         Gunn testified that Judy had a prior CPS history, which began in 2004 when Jack's former caretaker called CPS to report that Jack was living with him, not Judy, and that he could no longer care for the child.[5] In 2007, CPS received a report of neglectful supervision and physical abuse of Jack, who said he wished to leave Judy's home. CPS records from that time showed that Jack was an aggressive child and spoke of hurting animals. In 2008, marihuana use in the home was reported. In 2009, Dora had a black eye, said her parents were not nice and did not take care of her, complained of being hungry, and reported that she had to do her homework in the dark. That same year, Jack went to school with a large bruise on his back. Despite the reports, Gunn concluded that the allegations could not be established as true or had been ruled out.

         In 2010, Jack was placed in a mental health center and claimed to be fearful of Judy. According to Judy, Jack had stabbed her many times before he was placed on medication as a result of mental health treatment. The family moved to North Carolina in 2010, where they were also investigated by local CPS four times over the course of several years. They returned to Texas in 2015 and were offered family-based services the following year in the hope of keeping the family unit intact. Gunn testified that, by this time, Jack was on medication for schizophrenia, and the family home was occupied by Judy, Jack, Dora, Ethan, Judy's seventeen-year-old daughter Beatrice, a man named Randall Lee Jones, and a family friend, Benjamin James Cowling.[6]

         Judy testified that Beatrice and Dora made the following allegations against Jack: that he had punched a hole in the bathroom wall and "was peeking in the bathroom at them." Judy claimed the allegations were motivated by jealousy of her relationship with Jack and by their desire to remove him from the home. In August 2016, police officers responded to the home on a report of a physical altercation between Judy and Jack, who were biting and slapping each other. Jack claimed he was trying to protect Ethan during the event, but Judy testified that Jack punched her in the eye after she blocked his exit from the home. Gunn testified that Jack was violent, exhibited homicidal behavior, and admitted he heard voices telling him to kill random people.

         Gunn's investigation revealed that Judy had a criminal history that included causing bodily injury, assault of a public servant, resisting arrest, failure to identify, unauthorized use of a motor vehicle, two burglaries, and two thefts. Craig also had a criminal history of burglary, theft, unauthorized use of a vehicle, and possession of a controlled substance. The investigation also showed Judy was assaulted by Ethan's father while she was pregnant with Ethan. Judy admitted that, after Ethan was born, she and Ethan's father both engaged in family violence assault in front of the children and that she left him after he threatened to kill her in front of Ethan. According to Judy, emotional abuse occurred daily, and physical abuse occurred "[p]robably once a month."

         Judy established at trial that her prior CPS history resulted from her own requests for assistance from CPS in dealing with Jack's mental health. Nevertheless, based on her review of the family's history, Gunn concluded that Judy was not protective of Dora and Ethan, but attempted to reunite the family following Dora's removal. The attempt failed when Judy refused to sign a family safety plan that would have allowed Dora and Ethan's return to her home if she agreed (a) not to be with Dora unsupervised and (b) not to leave Ethan alone with Jack unsupervised. As a result, Ethan was also removed from Judy's home after law enforcement calmed Judy down several times in front of the child.

         Cody Trauer, a CPS investigator, interviewed Ethan after Dora's removal. According to Trauer, Ethan said he was left at home alone and that the utilities in his home, including the toilet, occasionally did not work. Dora also told Trauer that the utilities in her home and the toilet sometimes did not work. Trauer's interview revealed that Ethan had witnessed Judy and his father verbally and physically fighting. The child described a physical altercation between Jack and "Nana" involving a knife and told Trauer he was touched and kicked on his privates by someone in the home. In speaking of his past, Ethan testified that his North Carolina home made him sad because he remembered one incident when Judy and his father were fighting and pushing each other. He said Jack held him when he cried so he would not be afraid. Ethan also remembered that Jack had hit Judy. Gunn also testified that Ethan "mentioned some concerning things about sexual abuse in the home between he and [Jack]."

         To investigate the possible sexual abuse, Ethan was examined by Lightfoot. Lightfoot, who noted marks and scratches on Ethan's arm during her interview, also testified that Ethan said he was grabbed and kicked in his "pee-pee" by Jack, but that some of his statements, including that his privates were blown up by a bomb, were "fantastical." Due to the lack of appropriate alternative placement, Dora and Ethan were placed into foster care.

         Ethan was removed from his first foster home as a result of allegations that the foster parents were guilty of abuse. Ethan's second foster mother, identified in the record by only her first name, Brianna, testified that Ethan was placed in her home on July 24, 2017, and was doing well until he was visited by Dora. Brianna said that Dora was very "motherly" and protective of Ethan and requested that Brianna demonstrate that she had sufficient food for the child. Dora explained that she had suffered food shortage while in Judy's home and would go days without eating so that Ethan could eat.

         According to Brianna, after Dora's visit, Ethan began struggling at school, slinging racial comments and "being mean to the other kids." Although Ethan had several successful visits with Judy before Dora's visit, Brianna testified Ethan began expressing fear of continued visits with Judy and would complain of stomach aches, "make himself throw up," or try other tactics to prevent them. According to Stephanie Garcia, a Department conservatorship worker, Ethan said Judy made him nervous, and he was scared she would hit or yell at him. Brianna testified that she called CPS after Ethan reported that he had watched pornography with Jack and that Judy had "special slumber parties in her room [with Jack that] no one else was invited to."

         CPS requested additional interviews of the child. Michael Jafarezadeh, a clinical psychologist, testified that he evaluated Ethan and determined that he was emotionally distressed, defiant, socially awkward, and potentially aggressive. Jafarezadeh testified Ethan had nightmares of Jack and feared him. He diagnosed Ethan with post-traumatic stress disorder (PTSD) caused by witnessing an act of physical or sexual violence, not by being uprooted from his family. Hannah Rupley-Ulbrich, a licensed professional counselor, testified that she was currently counseling Ethan, who reported he sometimes felt unloved, was scared of Jack, and had "dream[s] where things were happening to his private parts" that made him feel "yucky . . . and scared." Based on his reports, Rupley-Ulbrich determined it was "very possible" that Jack had sexually assaulted Ethan.

         Ethan was admitted to a psychiatric hospital for inpatient treatment after he said he was hearing voices telling him to harm people. Brianna testified that Ethan was violent against her children and was not allowed to return to her home after she tore three ligaments when he kicked her, caused her to fall, and stepped on her ankle. As a result, Ethan was placed in another foster home.

         Katie Murphy, Ethan's current foster mother, testified that she had just obtained special training to operate a therapeutic foster home when Ethan was placed with her. Murphy testified that Ethan calls her "Mom," refers to her husband as ...

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