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In re J.K.

Court of Appeals of Texas, Ninth District, Beaumont

October 3, 2019

IN THE INTEREST OF J.K. AND S.K.

          Submitted on June 18, 2019

          On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 18-03-03595-CV

          Before Kreger, Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON JUSTICE.

         This appeal arises from the trial court's ruling in a parental-rights termination case terminating "Father's" rights to raise his twin daughters, "Cassie" and "Katie."[1]While Father raises three issues in his appeal, his primary complaint is that there is not enough evidence in the record to support the trial court's decision terminating his parental rights. We affirm.

         Background

         Father raises three issues in his appeal from the trial court's final order.[2] First, Father argues that the record from his trial does not contain enough evidence to support the trial court's finding on the Department's pretrial motion seeking a finding that aggravated circumstances existed in his case, which allowed the trial court to relieve the Department of certain obligations it would have otherwise had to him and to accelerate the trial.[3] Second, Father contends he was denied his rights under the Family Code to effective assistance of counsel.[4] Third, Father contends the evidence fails to support the findings the trial court relied on to terminate his parental rights.

         In March 2018, the Department filed its original petition to terminate the parental rights of the unknown parents of the twins. For the first time, in its second amended petition filed in August 2018, the Department identified Father and one other man as alleged fathers of the twins. In September 2018, the trial court appointed an attorney to represent the twins' alleged fathers. In January 2019, DNA test results established the twins were Father's. The attorney the trial court appointed to represent the two alleged fathers became Father's court-appointed attorney, and that attorney represented Father in the trial.[5]

         Shortly after the Department obtained the results of Father's DNA test, the Department filed a motion requesting to accelerate the trial. The Department's motion asserts that aggravated circumstances exist authorizing the trial court to dispense with several requirements otherwise required in cases filed by the Department to terminate a parent's rights.[6] In the motion, the Department asked the trial court to waive the Department's obligations to (1) provide Father with a family service plan, (2) to make reasonable efforts to unite the twins with their Father, and (3) to accelerate the trial. The Department based its motion on Father's obligation to register with a sex offender registry based on a conviction Father incurred for committing an aggravated sexual assault against a child.[7]

         About two weeks before trial, the trial court held a hearing on the Department's motion seeking an aggravated-circumstances finding.[8] No transcript for that hearing is included in the appellate record Father arranged to have filed to support his appeal. But the docket sheet in the Clerk's Record shows the parties and their attorneys appeared for the hearing on the Department's motion. According to the docket sheet, the parties presented evidence, argued about the motion's merits, and the trial court granted the motion. And the attorneys announced they were ready for the trial, which the trial court scheduled for late February 2017. The written transcripts from the trial, which are in the Reporter's Record, show that Father's trial counsel participated in all phases of the proceedings of the trial.

         Cassie and Katie were eleven-months old at the time of the trial. In opening statement, the Department argued that Father's parental rights should be terminated because, in 2004, the State convicted him on a charge alleging that Father, in 2002, committed an aggravated sexual assault against a child.[9] For convenience, we will refer to the Family Code subsection the Department relied on at trial to terminate Father's parental rights as "Section L."[10]

         Eight witnesses testified in the trial. The evidence admitted in the trial includes a certified copy of Father's 2004 conviction for the aggravated sexual assault against a child, a crime that occurred in 2002. The victim of the 2002 crime was thirteen-years old when the offense occurred. A copy of Father's indictment for the crime is in the evidence admitted at trial. The indictment alleges that Father penetrated the child's sexual organ with his sexual organ.

         During the trial, the attorney the trial court appointed to represent the twins asked Father whether he caused a serious injury to the victim of the 2002 aggravated sexual assault. Father responded: "Yeah. I mean, I think at the time I was - - I mean, if I was doing drugs, she was doing drugs." Questions posed to Father in the trial reflect that he agreed that, given that the victim of the sexual assault was thirteen-year old child, he characterized the offense he committed in 2002 as a serious crime.

         Relying on Section L, together with a separate best-interest finding, the trial court terminated Father's parent-child relationship with the twins.[11] Following the trial, the trial court signed a final order terminating Father's parental rights to the twins.

         Aggravated-Circumstances Findings

         The Family Code authorizes trial courts to relieve the Department of certain obligations it otherwise has to provide parents under the Family Code upon a finding of aggravated circumstances. The obligations the Department is relieved from include providing the parents of a child with a family service plan and making reasonable efforts to unite the parents with their child.[12] Following a pretrial evidentiary hearing, the trial court found aggravated circumstances existed in Father's case, which relieved the Department of the above obligations as to Father's case and allowed the trial court to accelerate the trial.

         In issue one, Father argues the Department failed to present enough evidence to establish that the Department was entitled to have a favorable finding on the aggravated-circumstances issue it raised in Father's case. According to Father, had the trial court not relieved the Department of its obligations, he would have benefitted from the Department's creating a family service plan designed to unite him with the twins.

         But Father failed to provide this Court with a written transcript of the evidentiary hearing the trial court conducted on the Department's motion, which resulted in the aggravated-circumstances finding Father challenges in his first issue. From the docket sheet, we can tell the trial court heard evidence when deciding the Department's motion. And in his testimony at trial, Father mentioned testifying in the hearing.

         The Rules of Appellate Procedure place a duty on appellants such as Father to provide the appellate court with a complete appellate record so the reviewing court may evaluate the validity of the complaints the appellants seek to raise in their appeals.[13] Generally, the appellate record consists of the Clerk's Record and, if necessary to the appeal, the Reporter's Record.[14] The appellant is responsible for asking the official reporter for the proceedings he wants the reporter to transcribe as part of the appellate record, and that duty applies to all proceedings relevant to the issues the appellant raises in his appeal.[15] The appellant's request to the official reporter must be in writing and must identify the exhibits and portions of the proceedings the Reporter's Record is to include.[16] The Rules of Appellate Procedure require that the appellant file a copy of the written request with the District Clerk, [17]but no such request is in the appellate record before us here.

         Because the appellate record does not include a document showing whether Father sent a written request to the official reporter, we asked our Clerk to contact the trial court's clerk to determine if the record in that court includes the written request. Our Clerk learned that no such document was ever filed. Thus, we must presume the missing portions of the Reporter's Record supports the trial court's aggravated-circumstances finding.[18]

         Termination Findings

         A. Standard of Review

         For convenience, we address Father's third issue before addressing the arguments he raises in issue two. In issue three, Father argues the evidence is legally and factually insufficient to support the trial court's findings that resulted in the termination of his parental rights. According to Father, Section L of the Family Code required the Department to prove two things, (1) that Father had once been convicted for sexually assaulting a child and (2) that the assault resulted in a serious injury or death to the child.[19] While Father concedes there is sufficient evidence in the record to show that he had a prior conviction for sexually assaulting a child, he suggests the Department failed to establish the assault caused any serious injury to the child.

         To terminate Father's rights to the twins, the Department had the burden to present legally and factually sufficient evidence to prove (1) that Father's rights should be terminated under Section L and (2) to prove that terminating his rights to the twins is in their best interest.[20] When conducting a legal sufficiency review, we examine the evidence in the light most favorable to the trial court's finding to determine whether "a reasonable trier of fact could have formed a firm belief or conviction that its finding was true."[21] We assume that the factfinder resolved disputed facts in a manner that favors its finding if a reasonable factfinder could have done so, and we disregard all evidence a reasonable factfinder could have disbelieved or found incredible. If no reasonable factfinder could form a firm belief or conviction that the matter the party with the burden of proof was required to prove is true, the evidence is legally insufficient.[22]

         In a factual sufficiency review, we must determine whether the evidence allowed the factfinder, acting reasonably, to form a firm belief or conviction about the truth of the allegations made by the party that had the burden of proof in the trial. We evaluate whether, from the evidence, the factfinder could have reasonably found the evidence clear and convincing on the matter to be proven. And we consider whether the disputed evidence is such that a reasonable factfinder could not have ignored it in deciding to terminate the parent's rights. If, given the entire record, the evidence contrary to the ruling the factfinder made is so significant that no reasonable factfinder could have resolved the dispute by terminating the parent's rights, the evidence is factually insufficient.[23]

         The decision to terminate a parent's rights must be supported by clear and convincing evidence, which is "the measure or 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."[24]

         B. Analysis-the Section L Finding

         When accompanied by a best-interest finding, Section L authorizes trial courts to terminate a parent's relationship with a child when the parent is shown to have a conviction for aggravated sexual assault against a child and the parent's conduct caused the child's death or serious injury.[25] Under the Penal Code, an aggravated sexual assault occurs if the defendant intentionally or knowingly penetrates the sexual organ of a child younger than fourteen by any means.[26]

         Section L requires the State to prove a serious injury resulted from the parent's conduct.[27] But the Family Code does not define the term serious injury. Absent a definition for the term provided by the Legislature, we give the phrase its ordinary meaning.[28] To do so, we look to definitions used in dictionaries since they contain relevant information about the rules of grammar and the common meanings used for words.[29]

         Webster's Third New International Dictionary defines the term serious as causing "considerable distress, anxiety, or inconvenience: attended with danger[.]"[30]The New Oxford American Dictionary defines serious as "significant or worrying because of possible danger or risk; not slight or negligible[.]"[31] Webster's defines injury as "an unjust or undeserved infliction of suffering or harm[, ]"[32] while Oxford's American Dictionary defines injure to include "harm[ing] or impairing (something)[.]"[33] Thus, evidence allowing the factfinder to infer that a child suffered a serious emotional or psychological injury as opposed to having suffered a bodily injury is all that is needed to prove a serious injury resulted from an aggravated assault under Section L.

         Here, the evidence in the record shows that Father sexually assaulted a thirteen-year-old child by means of penetrating her sexual organ with his. Father was 22 years old when the 2002 offense occurred. Father testified the crime he committed in 2002 was serious and impacted the victim's life in a "significant" way. While Father suggests the only evidence relevant to the question of whether a serious injury occurred is the judgment convicting him of aggravated sexual assault, we disagree given Father's testimony in this record and the information in Father's indictment, both of which constitute evidence the trial court could reasonably consider in deciding whether Father's conduct resulted in a serious injury to the child.

         We conclude legally and factually sufficient evidence supports the trial court's finding that a serious injury ...


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