in the Interest of V.A., V.A., and V.A., Minor Children

NUMBER 13-06-237-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ IN THE INTEREST OF V.A., V.A., AND V.A., MINOR CHILDREN ___________________________________________________________________ On appeal from the 207th District Court of Hays County, Texas. __________________________________________________________________ MEMORANDUM OPINION Before Justices Rodriguez, Garza and Benavides Memorandum Opinion by Justice Rodriguez Appellee, the Texas Department of Protective and Regulatory Services (the Department), brought suit against appellant, the biological mother of V.A.1, V.A.2, and V.A.3, (1) daughters born in 1998, 2000, and 2002, (2) respectively, for termination of her parent-child relationship under section 161.001(1)(D), (1)(E) and (1)(O) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O) (Vernon Supp. 2006). In a jury trial following her de novo appeal to the trial court, (3) the jury found one or more statutory grounds for termination and that termination of the parent-child relationship was in the children's best interest. The trial court subsequently entered an order terminating appellant's parental rights. See id. § 161.206 (Vernon Supp. 2006). By three issues, appellant challenges (1) the factual sufficiency of the evidence to support the jury's verdict of termination and (2) the trial court's admission of testimony that appellant claims is backdoor hearsay. We affirm. I. Factual Sufficiency of the Evidence to Support Termination By two issues, appellant contends that the evidence is factually insufficient to support the jury's verdict that the parent-child relationship between appellant and her three children should be terminated. Parental rights can be terminated only by a showing of clear and convincing evidence that the parent committed one or more of the acts specifically named in the family code as grounds for termination and that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2006). Clear and convincing evidence 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 proved." Id. § 101.007 (Vernon 2002). A. Standard of Review The Texas Supreme Court recently set out the factual sufficiency standard of review as follows: In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a jury's factfindings, In re C.H., 89 S.W.3d 17, 27 (Tex. 2002), and should not supplant the jury's judgment with its own, Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The court should inquire "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the . . . allegations." In re C.H., 89 S.W.3d at 25. "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, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In re H.R.M., 50 Tex. Sup. J. 192, 2006 Tex. LEXIS 1194, at *4 (Tex. Dec. 1, 2006) (per curiam).B. Statutory Termination Grounds By her first issue, appellant contends that the evidence is factually insufficient to support the jury's verdict for termination on the statutory termination grounds. The Department alleged, and the jury found, that appellant had committed one of the following acts that supported termination on section 161.001 statutory grounds: 1. [Appellant] has knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; 2. [Appellant] has engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; [or] 3. [Appellant] failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O) (Vernon Supp. 2006). "Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). If the evidence is sufficient to support the jury's verdict in only one of multiple pleaded statutory grounds, then the termination will be upheld. See Hann v. Tex. Dep't of Protective and Regulatory Servs., 969 S.W.2d 77, 81 (Tex. App.-El Paso 1998, writ denied) (holding that a single provision listed in the laundry list is sufficient to satisfy the first element of involuntary termination). We must, therefore, uphold the ruling in this case so long as there is factually sufficient evidence to support termination on any one of the three theories alleged. 1. Failure to Comply with Order In her first issue, appellant appears to argue that the evidence is factually insufficient to support the jury's finding that she failed to comply with the provisions of the court order establishing the actions necessary for appellant to obtain the return of her children. See Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2006). It is undisputed that the Department had temporary managing conservatorship of the children on March 23, 2002. The case was initiated because of injury to V.A.3 when she was one month old. (4) The evidence establishes that the children were removed from appellant, in part, because of the continuing danger to the physical health or safety of all three children. (5) The service plan enacted by the Department identified several issues which needed to be addressed, including relationship problems, anger management, unequal parenting responsibilities, unstable housing and employment, and drug and alcohol usage. The absence of any identified perpetrator of V.A.3's injuries was also a concern. The service plan required active participation by appellant and her satisfactory demonstration of the ability to change her behavior in response to the Department's concerns. Appellant signed the plan acknowledging that the plan requirements were necessary for her to meet the goal of family reunification and to avoid termination. Cheryl Smith, a Department employee who supervised those responsible for the removal of children from their homes, testified at trial. She characterized appellant's participation as inadequate. First, appellant did not participate in education programs. She was referred to a parenting program, but did not substantiate her claims of completion by providing the Department with a certificate of completion. There was no evidence that appellant completed a second parenting course on protective parenting. Smith also testified that she had no information that appellant had enrolled in the domestic abuse class. Second, appellant did not consistently attend counseling sessions. Smith testified that appellant did not appear for her first two counseling sessions with Byron Barnes, Ph.D., a psychologist. From August 2002 through April 2003, appellant attended approximately fifty-nine percent of her sessions with Dr. Barnes; she attended seventeen therapy sessions, but missed twelve sessions. Family counseling sessions lasted only from August 2002 through December 2002 or January 2003 and were discontinued because of appellant's absences. Finally, appellant had unstable employment, unstable housing, and did not maintain regular contact with the Department. At times, the Department found it difficult to locate appellant. When asked why the goal was changed from reunification to termination/adoption, Smith responded as follows: The Department had been involved with this family since March of '02. And in reviewing the progress that the parents had made, the concern was that we have one year to make some permanency - for permanency to be achieved for the children when they come into our care. We were already eight months into this case and the amount of compliance we were getting was inconsistent, and we still didn't know who had been the person who committed the abuse on [V.A.3], no one had taken responsibility for that. So we still had a lot of risk factors in this home and could not safely return these children to either one of the parents at that point. A decision was made at that time that we needed to move toward a different option for these children, and that decision was that we were going to terminate parental rights and have the children be available for adoption. According to testimony provided by Dr. Barnes who administered appellant's psychological and diagnostic testing on April 25, 2002, the test results indicated that appellant had a good intellectual capacity. Her scores on several personality inventories raised concerns about agitation, irritability, difficulty in controlling herself and in learning from experience, and a significant potential for acting out, for example, physical fighting. Appellant also reflected depression and anxiety. Dr. Barnes made a provisional diagnosis of borderline personality disorder which involves emotional instability. Dr. Barnes also identified the fact that appellant was the primary care giver, always having access to the children, as a significant risk factor for the children. He testified that, due to her missed appointments, he did not "believe risk was reduced." While Dr. Barnes stated that he did not know if appellant was experiencing adjustment disorder, depression, or if there was neglectful supervision at the time of trial, personality disorder diagnosis tends to be "pretty stable" and will not change without therapy. Linda Grajek, an investigator with Child Protective Services, testified that appellant "put up effort, but not 100 percent." Grajek testified that she worked with the future adoptive parents, the closest relatives who met all Department standards, from November 2003 until October of 2005. Based on her review of reports during that time and her participation in staffing meetings, she was of the opinion that return of the children to appellant was not appropriate. According to Grajek, nothing had changed at that time. Appellant continued to have unstable employment and housing, did not complete "things," including counseling sessions. There was concern about the stability of her relationships, and the Department was still unable to identify a perpetrator of V.A.3's injuries. (6) Appellant completed a psychological evaluation by Matthew Ferrera, Ph.D., had two drug tests, both of which were negative, and completed anger management. (7) Appellant also testified that she participated in a parenting class, anger management, family counseling, and meetings with Dr. Barnes once a week. She explained that the family counseling ended because the children's father "took off." According to appellant, the family counselor said that he could not see her anymore because it was family counseling and she was the only one going. Appellant also testified that all drug tests had come back negative and that she met with a drug counselor who told her she did not need any drug classes or drug tests. Appellant testified that she had been living in Austin at her aunt's house, but had recently moved into a four-bedroom house in Travis County where she rented one room. Appellant had also had a fourth child who, at the time of trial, was living with appellant's mother. Appellant testified that she had been going to school with American Youth Works, had been employed with a "temp" service in December, but was unemployed at the time of trial, and had not been using drugs. After considering the entire record and giving due deference to the jury's findings, we conclude that the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations; that appellant failed to comply with a court order that established actions necessary for her to obtain the return of the children. See Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2006); In re H.R.M., 2006 Tex. LEXIS 1194, at *4. Thus, the evidence is factually sufficient to support the trial court's findings that appellant committed acts enumerated in section 161.001(1)(O) of the family code. Having concluded the evidence is sufficient to support the jury's verdict for termination on this statutory ground, we need not address the remaining pleaded statutory grounds. See In re A.V., 113 S.W.3d at 362; Hann, 969 S.W.2d at 81. 2. Public Policy In her first issue, appellant also contends that the evidence is factually insufficient to establish that she failed to comply with the Department service plan because the circumstances of this case demonstrate that, regardless of her participation in the plan, the Department had an ulterior motive to terminate her parental rights rather than to reunify the family. Appellant argues that this is against public policy. She asserts that the proper focus in determining this issue should be on whether the Department enacted and administered its plan consistent with the public policy in favor of family reunification where possible and not on whether she failed to comply with the court's requirements under section 160.001(1)(O). For the general proposition that public policy recognizes the promotion of family reunification, appellant refers us to In re M.G.D., 108 S.W.3d 508, 522 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (Frost, J., concurring), and for the general proposition that the Department's policy is to seek family reunification where feasible, appellant cites Rodarte v. Cox, 828 S.W.2d 65, 78 (Tex. App.-Tyler 1991, writ denied). While these cases support appellant's general contentions, In re M.G.D. also provides that all termination suits are to be completed within a year. In re M.G.D., 108 S.W.3d at 515 (citing Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2006) (providing for dismissal of termination suits one year after the Department is appointed as temporary managing conservator and also providing for a six-month extension if the court finds it is in the best interest of the child)). Appellant complains that the Department allegedly failed to request a continuance to allow her to complete the plan requirements. The record, however, fails to establish that during an additional improvement period appellant would have been any more diligent in pursuing counseling, classes, and employment that she needed or that additional time would have materially altered appellant's motivation. The Legislature has made it "clear that courts cannot leave children in foster homes indefinitely while existing parents try to improve themselves and their conditions." Id. Moreover, appellant's record citations do not support her public policy argument-that the Department had an ulterior motive to terminate her parental rights rather than to reunify the family. The record citations do, however, provide support for appellant's compliance and her non-compliance with the plan. Therefore, without more, appellant's public policy argument is neither persuasive nor adequately briefed. See Tex. R. App. P. 38.1(h) (providing that contentions must be supported by clear and concise arguments with appropriate citations to authorities and to the record). Appellant's first issue is overruled. C. Best Interest of the Children By her second issue, appellant contends that the evidence is factually insufficient to support the jury's verdict that termination is in the best interest of the children because four years had passed between the children's removal from appellant's custody in 2002 and the trial in 2006, and the Department did not present evidence that the criteria which prompted removal of the children still existed. Appellant argues that, in the absence of evidence showing appellant's unsuitability in 2006, the evidence did not clearly and convincingly support the jury's verdict on the issue of the children's best interest. We disagree. "[A] fact finder may infer that past conduct endangering the well being of a child may recur in the future if the child is returned to the parent." Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.-Austin 2004, pet. denied) (citing In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.-Waco 1997, pet. denied), disapproved on other grounds by In re J.F.C., 96 S.W.3d at 267 and In re C.H., 89 S.W.3d at 26; see De Llano v. Moran, 160 Tex. 490, 333 S.W.2d 359, 361 (1960)); May v. May, 829 S.W.2d 373, 377 (Tex. App.-Corpus Christi 1992, writ denied). In this case, the Department presented evidence establishing appellant's history of unstable housing, unstable employment, unstable relationships, mental health issues, and drug and alcohol usage. There is also evidence that appellant had risk factors for abusive behavior. From this evidence and from the evidence set out in the statutory grounds for termination analysis above, see In re C.H., 89 S.W.3d at 28 (providing that evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest), the jury could have determined that the identified risk factors established endangerment to the children's well-being in the past and could have inferred that the risk factors would continue to be present thus endangering the children's well-being in the future if the children are returned to appellant. See Williams, 150 S.W.3d at 451; D.L.N., 958 S.W.2d at 934. From this evidence and that set out earlier, the jury could have also inferred that appellant's past inability to appropriately care for her children as established by her mental health issues and her unstable housing, employment, and relationships, is indicative of the quality of care appellant is capable of providing any of the children in the future. See D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 356 (Tex. App.-Austin 1993, no writ). Furthermore, considering appellant's drug and alcohol use and her overdose on pain medications, the jury could have concluded that, in the future, similar unsuitable conduct might occur. See id. Because there is evidence that appellant's past actions were unsuitable, the jury could have inferred that similar unsuitable conduct could recur in the future if the children are returned to appellant. See Williams, 150 S.W.3d at 451. Therefore, appellant's contention that the evidence is factually insufficient because the Department did not present evidence that the criteria which prompted removal of the children still existed at the time of trial is not persuasive. Moreover, "[t]he Texas Supreme Court has compiled factors to consider when determining the best interest of a child." In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (citations omitted). Nine non-exhaustive factors set forth by the supreme court in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976), include the following: desires of the child; emotional and physical needs of the child now and in the future; emotional and physical danger to the child now and in the future; parenting abilities of the parties seeking custody; programs available to assist these persons; plans for the children by parties seeking custody; stability of the home or proposed placement; acts of omissions committed by the parent which may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions committed by the parent. Id. The absence of evidence about some of these facts does not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27; see In re D.M., 58 S.W.3d 801, 814 (Tex. App.-Fort Worth 2001, no pet.) (explaining that the determination of best interest does not require proof of any unique set of factors, nor does it limit proof to any specific factor). In light of the entire record and giving due deference to the jury, we conclude that the evidence in this case is factually sufficient to support certain Holley factors, including the children's emotional and physical needs now and in the future, the emotional and physical danger to the children now and in the future, and the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper. See Holley, 544 S.W.2d at 372; In re H.R.M., 2006 Tex. LEXIS 1194, at *4. Thus, we conclude that the Department presented enough evidence from which the jury could reasonably have formed a firm conviction or belief that each child's best interest warranted termination. See In re D.S.A., 113 S.W.3d 567, 574 (Tex. App.-Amarillo 2003, no pet.). We overrule appellant's second issue. II. Hearsay By her third issue, appellant complains that the trial court erred in admitting backdoor hearsay testimony, implying she was using drugs at the time of the investigation. She claims that the error was harmful because it was reasonably calculated to influence the jury's decision with respect to its determination of the children's best interest and to influence this Court's appellate review. See Tex. R. App. P. 44.1(a). Appellant argues that the testimony related to a key material issue, that being whether the parent is unsuitable. We disagree. Liz Torres, a Department investigator, testified that she had received a referral regarding one of appellant's children. At trial, the Department attempted to introduce evidence of a drug test which appellant had taken at Torres's request. The trial court sustained appellant's objection to the admission of the test results on hearsay and Daubert grounds. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). The Department then sought to ask Torres, if, based on her investigation, she had concerns about whether or not appellant was using drugs. The trial court overruled appellant's objection that the question was a "backdoor" method of eliciting information which had previously been excluded, and Torres answered the question in the affirmative, stating that she had concerns about whether or not appellant was using drugs. At trial, however, in opening statements the Department announced that the evidence would show that appellant was a troubled teenager who had problems with marijuana, cocaine, and huffing inhalants. Without objection, the following testimony was admitted: 1. Caseworker Harris testified that appellant admitted to "huffing"; 2. Dr. Ferrara testified that appellant admitted that her boyfriend "Got me into cocaine," and that she began using drugs at age thirteen, including cocaine, and once overdosed on pain medication; 3. Dr. Ferrara also testified that interim periods between drug use increases hostility, e.g., detox, and that affects child rearing; 4. Caseworker Smith testified that there was a concern about appellant's drug and alcohol use as affecting her ability to provide for her children; and 5. Dr. Barnes testified that appellant admitted to "cocaine usage prior to the pregnancy, and that there had been quite a lot of it, quite a bit of it prior to the pregnancy . . . [and] [s]he reported that she took an overdose of father's pills. . . ." Under rule 44.1, we must reverse a ruling where the error was reasonably calculated to cause the rendition of an improper judgment or probably prevented appellant from properly presenting the case to this Court. Tex. R. App. P. 44.1(a); Palmer v. EspryHuston & Assocs., 84 S.W.3d 345, 351 (Tex. App.-Corpus Christi 2002, pet. denied). Torres's testimony is consistent with the above-referenced opening statements and testimony regarding drug use. We cannot conclude, as appellant suggests, that without Torres's testimony, the Department would not have established that appellant was not suitable. Neither can we conclude that its admission probably caused rendition of an improper judgment or probably prevented appellant from properly presenting the case to this Court. See Tex. R. App. P. 44.1(a). Therefore, even if the question invited inadmissible hearsay and thus the trial court erred in admitting Torres's testimony, we conclude there was no reversible error. We overrule appellant's third issue. III. Conclusion The judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Memorandum Opinion delivered and filed this 1st day of February, 2007. 1. Because the initials are the same for all three children, for purposes of this opinion, we will refer to them from oldest to youngest as V.A.1, V.A.2, and V.A.3. 2. The year of V.A.3's birth is stated as 2002 throughout the record but as 2003 in the judgment. This discrepancy, however, does not affect the disposition of this appeal. 3. The Texas Family Code provides for an appeal to the referring court from an associate judge's ruling. See Tex. Fam. Code Ann. § 201.015 (Vernon 2002). 4. Sabrina Harris, an investigator for the Department, investigated a report of possible physical abuse to V.A.3. She observed significant bruising to V.A.3's upper arm, neck, cheek, behind her ear and on the side of her head. V.A.3 also had a broken clavicle which Harris learned had likely occurred within the preceding fourteen days. Harris testified that she suspected child abuse because the injuries could not have been self-inflicted given the child's age. An examining physician testified that in addition to the multiple bruises on her body, bruises from injuries that had occurred at different times, V.A.3 had a pattern on her cheek consistent with a bite mark. It was his impression that the bruising, as well as the break, resulted from non-accidental trauma. Smith also testified that, except for the bite mark which appellant believed to have been inflicted by the child's sister, both appellant and the child's biological father denied knowing how V.A.3 received her injuries. According to Harris, appellant told her that she had not fully bathed or changed V.A.3's clothing because of the intensely cold weather in the month following her birth, and because the baby had a cold. Appellant testified that she had not seen any bruising and only learned of V.A.3's injuries after she had taken her to the hospital because of a high fever. 5. Although there was no report of injury to appellant's other daughters, ages 3 and 2 at the time of the initial contact, Harris was concerned over their welfare, basing her concerns on the risk of injury in light of V.A.3's injuries. 6. Grajek, foster care/adoption worker Anna Yost, and the intervenor with whom the children had been placed, also testified about the appropriateness of the children's future placement. Grajek and Yost opined that the intervenors were an appropriate placement option. Grajek also testified that termination of appellant's parental rights was in the children's best interest. 7. Dr. Ferrera testified that, from his testing, he determined appellant evinced several risk factors for possible abusive behavior, including her history of unstable relationships, unstable employment, substance abuse problems, and her mental health. One referenced relationship involved a boyfriend who beat her and involved her in drug abuse, driving her to attempt suicide. Dr. Ferrera explained that the presence of risk factors dealt with a "probability" and would not prove that an individual would harm a child. He opined, however, that appellant's relationships reflected that she would not be a good provider as a parent, and that there was a "high probability" that violence inflicted against her could be passed on against her children. Additionally, according to Dr. Ferrera, appellant's work history reflected that she had briefly worked in fast food and that the longest job she had held was as a topless dancer. According to Dr. Ferrera, appellant's lack of stable employment would create a likelihood of violence against her children, and, further, the odds of parental abuse are increased among topless entertainers. Appellant's substance abuse problems started with the use of marijuana at the age of thirteen. According to Dr. Ferrera, this reflected that appellant handled stress in a maladaptive manner. He explained that drug usage increases the probability of violence, both from the period of detoxification from drugs and from the fact that drug usage generically increases the possibility of acting out violently. He admitted his evaluation of appellant's substance abuse related to the period prior to the birth of her first child, and he did not consider any substance abuse or lack thereof from the birth of her first child to the date of the report. Psychological testing reflected that appellant had a long history of depression and personality patterns involving hostility and aggression. Finally, appellant lacked proper parenting skills. Positively, appellant was in good physical health and lacked any conditions which would cause her to become agitated and act out aggressively. Dr. Ferrera's evaluation was three years old at the time of trial. He admitted that the basis of his evaluation, with the exception of appellant's personality disorder, could change over time.