in the Interest of B.C. and Z.C., Children ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00256-CV
___________________________
IN THE INTEREST OF B.C. AND Z.C., CHILDREN
On Appeal from the 97th District Court
Montague County, Texas
Trial Court No. 2021-0086M-CV
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
In two issues with various subissues, Appellant Father appeals the trial court’s
judgment terminating his parental rights to his children, B.C. and Z.C.1 Father
contends that the trial court erred by depriving him of (1) his right to appointed
counsel and (2) his privilege against self-incrimination. We will affirm.
I. BACKGROUND
A. PROCEDURAL BACKGROUND
Based on concerns that Mother, Father, Paternal Grandmother, and Paternal
Grandmother’s boyfriend were using illegal drugs in the home with the children, and
because of concerns that boyfriend might have engaged in sexual misconduct with
B.C., the Texas Department of Family and Protective Services (Department) filed its
March 24, 2021 petition seeking termination of Father’s parental rights to B.C. and
Z.C.2 The only alleged conduct ground was that Father had “knowingly placed or
knowingly allowed the child[ren] to remain in conditions or surroundings which
endanger[ed]” their physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D). That same day, the trial court entered its ex parte emergency
1
We refer to the children using their initials and to other family members by
their relationship to the child. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
2
The Department also sought and obtained termination of Mother’s parental
rights to the children upon the grounds that she had filed an unrevoked or irrevocable
affidavit of relinquishment. See Tex. Fam. Code Ann. § 161.001(b)(1)(K). Mother is
not a party to this appeal.
2
order naming the Department as temporary managing conservator of the children.
The order also informed the parents that they may be entitled to appointed counsel:
YOU HAVE THE RIGHT UNDER §262.102(d), TEXAS FAMILY
CODE, TO BE REPRESENTED BY AN ATTORNEY. IF YOU
ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY,
YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT
OF AN ATTORNEY BY CONTACTING THE COURT AT 97TH
JUDICIAL DISTRICT COURT OF MONTAGUE COUNTY, 900
7TH STREET, ROOM 401, WICHITA FALLS, TEXAS 76301, (940)
716-8624. IF YOU APPEAR IN OPPOSITION TO THE SUIT,
CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF
AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN
AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR
EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE
COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE
FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL
APPOINT AN ATTORNEY TO REPRESENT YOU.[3]
On April 16, 2021, an adversary hearing was held at which Father appeared via
Zoom without an attorney. See id. § 262.201. After this hearing, the trial court
entered temporary orders that contained a notice—identical to the one referenced
above—to the parents of their right to appointed counsel.
On May 20, 2021, a status hearing was held at which Father did not appear. See
id. § 263.201. On September 16, 2021, an initial permanency hearing was held at
which Father did not appear. See id. § 263.304. And on January 5, 2022, a subsequent
permanency hearing was held at which Father appeared from jail via Zoom and
3
This order also appointed an attorney for Mother but not for Father.
3
without an attorney.4 See id. § 263.305. The trial court ordered that Father be
provided that same day with an indigency affidavit form to determine whether he was
eligible to receive appointed counsel. On January 6, 2022, based on the information
Father had provided in this affidavit, the trial court appointed attorney Tiffany Fowler
to represent him. Citing the need for more time to prepare for trial, Fowler moved
for an extension of the case dismissal deadline, which the trial court granted.
On May 26, 2022—less than a week before the start of trial—Fowler filed a
written motion to withdraw as counsel for Father on the grounds that Father “no
longer wishe[d] to be represented by Tiffany Fowler and wishe[d] to represent himself
or be appointed new counsel.” At the commencement of the trial on June 1, 2022,
Fowler orally moved for a continuance and presented her motion to withdraw as
counsel, citing Father’s displeasure with their “inability to effectively communicate.”
Fowler explained to the trial court that she had attempted to meet with Father before
trial at the jail where he was incarcerated but that Father had refused to speak with her
and instead asked her to file the motion to withdraw. The trial court denied both
motions.
Before testimony started on the second day of trial on June 24, 2022, Fowler
re-urged her motion to withdraw as counsel for Father, stating that it was her
4
The orders entered after the May 20, September 16, and January 5 hearings did
not contain a notice to the parents of their right to appointed counsel. There is no
transcript of these hearings in the appellate record.
4
understanding that Father wished to represent himself. In response to questions from
the trial court, Father said that he had never told Fowler that he wanted to represent
himself, only that he “would rather represent himself than have [Fowler] represent
[him].” This was because he had asked Fowler to “file a motion” for him to have
virtual visitation with the children from jail that Fowler had declined to file. He told
the trial court that he had met with Fowler three times regarding the case and that he
was aware that Fowler had arranged for witnesses to appear at trial on Father’s behalf.
When asked if he had another attorney lined up to represent him, Father answered,
“No. That’s their job to appoint one to me.”
Fowler acknowledged that she did not file a formal motion for virtual
visitation, citing a trial court policy regarding children visiting incarcerated parents.
However, she did make the request directly to the Department which was denied.
The trial court again denied the motion to withdraw.
After a bench trial, the trial court found by clear and convincing evidence that
Father had violated ground (D) and that termination was in the best interest of the
children. See id. § 161.001(b)(1)(D), (2).
B. TRIAL EVIDENCE
1. James Gibbs’s Testimony
Gibbs, an investigator for the Department, testified that the Department
became involved with B.C. and Z.C. in March 2021 after receiving a neglectful
supervision intake related to alleged illegal drug use in the home. Gibbs went to
5
Paternal Grandmother’s residence, where she lived with her boyfriend, Mother,
Father, and the children. Father was in the front yard with B.C. and Mother when
Gibbs arrived. Father told Gibbs that Paternal Grandmother’s boyfriend may have
engaged “in some type of inappropriate behavior with the children.” Gibbs informed
Father that there had been allegations of drug use in the home and asked Father to
submit to a drug test. Father told Gibbs that he would fail a drug test because he had
been “living the bachelor lifestyle.” Based on concerns about drug use in the home
and the allegations of the boyfriend’s sexual misconduct with the children, the
Department removed the children from the home.
2. Father’s Testimony
a. Removal
Father, testifying from jail, denied that he told Gibbs that he would test
positive if he was drug tested. He admitted that he knew that Paternal Grandmother
and her boyfriend were using methamphetamines while Father, Mother, and the
children lived in Paternal Grandmother’s home. Though he invoked the privilege
against self-incrimination when asked about his drug use at the time of removal,
Father also acknowledged that he had “a history of substance abuse problems” and
“an addicted [sic] personality.”
Father stated that he was concerned that Paternal Grandmother’s boyfriend
had sexually abused B.C. because of suspicious behavior Father had observed one
night while B.C. was asleep and because of “the way [boyfriend] carried himself
6
around [B.C.].” Father also conceded that Z.C., who was born in October 2020, had
never been taken to the doctor between his birth and the children’s removal in
March 2021.
For most of the case—about nine months—Father had been incarcerated in
multiple counties for charges including assault of a police officer, attempt to take a
weapon, felony evading arrest with a vehicle, burglary of a habitation, three
misdemeanor resisting arrests, and failure to identify.5 Due mainly to these
incarcerations, Father had visited with his children only four times since their
removal.6 While incarcerated, Father underwent a mental health assessment and was
diagnosed as being bipolar, but he characterized this diagnosis as merely “one
person’s opinion,” which he “did not follow.” Father did not know where he would
live after release from incarceration but testified that he desired to go to rehab and
had applied for acceptance into a one-year treatment program.
b. Appointment of Counsel
Father testified that he first requested a court-appointed attorney at the
April 16, 2021 adversary hearing. However, he was not appointed an attorney until
5
Father’s criminal history also included felony convictions for burglary of a
building, unauthorized use of a vehicle, and possession of methamphetamine. These
convictions all occurred between 2011 and 2015, before the births of his children.
6
Father also explained that he had decided to stop attending the visitations after
observing the distress placed upon B.C. when she was forced to leave him at the end
of the visits.
7
January 6, 2022. He estimated that, during the pendency of the case, he had made at
least a dozen requests for a court-appointed attorney, either by asking his caseworker
or the trial court directly.7 At one point, Father’s caseworker had explained to Father
that the trial court had initially determined that Father was ineligible for an appointed
attorney based on Father’s self-reported income.
c. Fifth Amendment
Father invoked his privilege against self-incrimination to a number of
questions, including:
1. Had he ever pushed, shoved, or hit Mother or thrown anything at her?
2. Was he actively using methamphetamines at the time of the removal of the
children in March 2021?
3. Was Mother actively using methamphetamines in March 2021?
4. Did B.C. test positive for methamphetamines?8
The State objected to Father’s assertion of the privilege in response to question
three, arguing that Mother’s drug use did not incriminate Father. Father’s attorney
argued that his answer to that question could be deemed incriminating if Father was
charged with “injury to a child or something like that if the children were [] in his
7
According to Father, he also submitted “multiple paperworks [sic]” requesting
a court-appointed attorney for which he never received a response.
8
The clerk’s record contains a drug test result that appears to show that B.C.
had tested positive for methamphetamines after being tested on March 30, 2021.
Direct evidence of these test results, however, was not admitted as evidence at trial.
8
care.”9 The trial court ordered Father to answer the question and Father testified that
Mother had been using methamphetamines in March 2021. Father was not ordered
to answer questions one, two, and four.
3. Tony Gilliland’s Testimony
Gilliland was Father’s caseworker and testified that Father was “angry
throughout most of th[e] case.” Communicating with Father was difficult because
Father would often respond angrily and because the Department often did not know
his whereabouts. Also, at visitations Father would sometimes arrive late, leave early,
and scream and cuss at the Department’s staff.
Gilliland agreed that Father had asked him several times for a court-appointed
attorney and that he had explained to Father that the trial court had determined that
he was ineligible for an attorney based on the wages Father had reported at the
adversary hearing. But Gilliland also explained to Father that he could “reapply” for
appointed counsel—which Father did after the trial court ordered that he be provided
with an indigency form in January 2022.
9
The record does not show that Father had ever faced a criminal charge of
injury to a child, but it does show that he had been arrested for abandoning and
endangering a child with criminal negligence on June 24, 2021, apparently for the
same alleged actions underlying this case. The Department reported that this charge
had been dismissed, but there is no indication whether the dismissal was with or
without prejudice.
9
4. Nora Nevarez’s Testimony
Nevarez, who worked as a permanency supervisor for the Department, testified
that she met with Father on May 12, 2021, and asked him if he would like to apply for
a court-appointed attorney. Father declined the application, explaining to Nevarez
that he and Mother were a couple and that he was satisfied with how the case was
being handled by her appointed counsel. According to Nevarez, the trial court asked
unrepresented parents at every court appearance whether they were okay proceeding
without a court-appointed attorney. Nevarez also witnessed Father’s anger and had to
“often” calm him down when he would become disruptive at the Department offices.
5. Brian Evans’s Testimony
Evans testified as a witness for Father. He said that he was Father’s former
employer at a wheel-repair business and described Father as a “very hard worker” and
a “good parent.” Evans explained that he started having concerns about Father’s
drug use when Father moved into Paternal Grandmother’s house:
“That’s when [Father] started using. It’s a cycle for [Father]. Whenever
[Father] moves back to his mom’s and his mom gets involved in
[Father’s] life—I mean, I’ve explain[ed] it to [Father] several times. It’s a
cycle for [Father].”
The last time that Evans had seen Father with the children was “two or three
days before” the children were removed in March 2021. Evans could tell that Father
was using drugs and told Father that “he needed to get himself clean and get away
from his mom.”
10
6. Frankie Pair’s Testimony
Pair also testified as a witness for Father. He stated that Father had worked for
him and described Father as a “hard worker.” Also, Pair had been friends with
Paternal Grandmother, and the two used to do drugs together when Father was a
baby. According to Pair, he had not seen Father in “some time” because Pair, as a
recovering addict, did not allow himself to be around “anybody that’s using.”
II. DISCUSSION
A. RIGHT TO COUNSEL
In his first issue, Father argues that the trial court violated his due process
rights in three ways: (1) by failing to appoint an attorney for him for the majority of
the litigation, (2) by failing to inform him of his right to legal representation, and
(3) by failing to consider appointing him a different attorney once a conflict arose
between Father and Fowler.
1. The Trial Court’s Appointment Was Timely
Father argues that the trial court violated his due process rights by failing to
appoint him with counsel “for the first 9.5 months of the litigation.” However, the
record shows—and Father concedes in his appellate brief—that Father did not file an
affidavit of indigency until after the January 5, 2022 hearing. This is fatal to Father’s
complaint.
There is no doubt that an indigent parent is entitled to appointed counsel when
the government initiates a suit to terminate his parental rights. See Tex. Fam. Code
11
Ann. § 107.013(a); In re B.C., 592 S.W.3d 133, 134 (Tex. 2019). When a parent claims
indigence, the trial court must appoint him with counsel if the trial court determines
that he is in fact indigent. B.C., 592 S.W.3d at 134. However, the trial court may not
make this determination until the parent has filed an affidavit of indigence in
accordance with the Texas Rules of Civil Procedure. Id. (citing Tex. Fam. Code. Ann.
§ 107.013(d); Tex. R. Civ. P. 145(b)); see Tex. Fam. Code Ann. § 263.0061(b).
Here, there is no dispute that Father appeared at the April 16, 2021 adversary
hearing, that he requested appointed counsel without filing an affidavit of indigency,
and that the trial court denied his request based on Father’s reported income.
Likewise, it is undisputed that Father did not appear before the trial court again until
the January 5, 2022 permanency hearing on the eve of the initial trial setting. At this
hearing, Father again requested appointed counsel and was promptly provided with a
copy of the indigency affidavit, which he completed and returned. The trial court
appointed him with counsel the next day and soon after granted Father a trial
continuance and extended the dismissal date so that his attorney could prepare for
trial.
Thus, the record is clear that the trial court was not presented with a valid
indigency affidavit until January 5, 2022. It had no authority to appoint Father an
attorney until that time. See B.C., 592 S.W.3d at 134. Accordingly, we hold that the
trial court did not err by not appointing Father counsel until January 6, 2022.
12
2. The Trial Court Adequately Informed Father of His Right to Legal Counsel
Next, Father contends that the trial court failed to provide him with adequate
statutory notice of his right to appointed counsel as required by Section 263.0061(a)
of the Texas Family Code. Because it is so brief, we will reproduce the entirety of
Father’s appellate argument on this point:
No statutory warnings appear to have been given to the unrepresented
Father. See Tex. Fam. Code Ann. § 263.0061(a); [record cite] (Status
Hearing Order), [record cite] (Initial Permanency Order), [record cite]
(Subsequent Permanency Hearing Order).[10]
Thus, Father appears to argue that the trial court violated Section 263.0061(a)’s
notice requirements simply because the written orders entered after the status, initial
permanency, and subsequent permanency hearings did not contain a notice informing
the parents of their right to appointed counsel. We disagree.
Section 263.0061 requires trial courts to, “[a]t the status hearing . . . and at each
permanency hearing,” inform unrepresented parents of “(1) the right to be
represented by an attorney; and (2) if a parent is indigent and appears in opposition to
the suit, the right to a court-appointed attorney.” Tex. Fam. Code Ann. § 263.0061(a).
It is true that none of the three referenced orders contain a notice of the parents’ right
to appointed counsel. It is also true, however, that Section 263.0061 says nothing
10
Though Father flirts with waiving this complaint through inadequate briefing,
see Craaybeek v. Craaybeek, No. 02-20-00080-CV, 2021 WL 1803652, at *5 (Tex. App.—
Fort Worth May 6, 2021, pet. denied) (mem. op.), we will consider it in light of our
directive to liberally construe the briefing rules. Tex. R. App. P. 38.9.
13
about what notices must be contained in the trial court’s written hearing orders, and
Father points to no such authority. Instead, Section 263.0061 requires a trial court to
provide said notice to the parents “at” the hearings in question.
On this point, Father does not complain that the trial court failed to give him
notice at the adversary and subsequent permanency hearings—the only two hearings
at which he appeared. And it is difficult to envision how the trial court could have
admonished Father of his rights at the hearings at which he failed to appear.
Further, even if Father had raised such a complaint, nothing in the record
before us—which does not contain any transcripts of the pretrial hearings—shows
that the trial court failed to give him notice at the hearings. Instead, the record
indicates that Father likely did receive adequate notice because Father sought to
invoke his right to appointed counsel at each of the two hearings at which he was
present. Also, Nevarez testified that the trial court had inquired into the status of the
parents’ legal representation at “every court hearing.”
For these reasons, we hold that Father has not shown that the trial court failed
to inform him of his right to appointed counsel.
3. No Abuse of Discretion in Denying Motion to Withdraw
Father argues that the trial court violated his due process rights by denying
Fowler’s requests to withdraw. These denials, Father says, deprived him of his right
to effective assistance of counsel at trial, particularly because he was not given the
14
opportunity to explain to the trial court the reasons why he and Fowler were not
effectively communicating. Again, we disagree with Father.
We review trial court rulings on the withdrawal or substitution of appointed
counsel for an abuse of discretion. In re C.F., 565 S.W.3d 832, 843 (Tex. App.—
Houston [14th Dist.] 2018, pet. denied); see Burgess v. State, 816 S.W.2d 424, 428 (Tex.
Crim. App. 1991).11 A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner, without reference to any guiding rules or principles. Walker v.
Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). A trial court is not required to search for
counsel agreeable to the indigent party, and “personality conflicts and disagreements
concerning trial strategy are typically not valid grounds for withdrawal.” King v. State,
29 S.W.3d 556, 566 (Tex. Crim. App. 2000). Further, the right to counsel may not be
used to obstruct the judicial process or to interfere with the efficient, prompt
administration of justice. Id.; see Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d).
11
Though civil in nature, Texas courts often seek guidance from criminal cases
when analyzing issues related to appointed counsel in parental-rights-termination
cases. See, e.g., In re D.T., 625 S.W.3d 62, 73–75 (Tex. 2021); In re M.S., 115 S.W.3d
534, 549–50 (Tex. 2003); In re Howell, No. 14-19-00611-CR, 2019 WL 3795999, at *2
(Tex. App.—Houston [14th Dist.] Aug. 13, 2019, orig. proceeding) (mem. op., not
designated for publication) (per curiam); In re G.H., No. 02-14-00261-CV, 2015 WL
3827703, at *17–18 (Tex. App.—Fort Worth June 18, 2015, no pet.) (mem. op. on
reh’g); Walker v. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 624–25 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied).
15
The trial court’s denials of Fowler’s motions to withdraw were not arbitrary or
unreasonable. The first evidence in the record of any disagreement between Father
and Fowler came by way of Fowler’s written motion to withdraw filed less than a
week before the commencement of trial. At that point, the trial court had already
granted Father a continuance and new dismissal date for the case. It would not have
been unreasonable, under these circumstances, for the trial court to have concluded
that Father’s eleventh-hour request for new counsel was a delay tactic. See Elder v.
Tex. Dep’t of Fam. & Protective Servs., No. 03-10-00876-CV, 2011 WL 4424299, at *3
(Tex. App.—Austin Sept. 20, 2011, no pet.) (mem. op).
Beyond this, the record shows that Father was generally difficult to
communicate with. Fowler informed the trial court that she had tried to meet with
Father at the jail on the eve of trial but was unsuccessful because Father refused to
speak with her. Gilliland testified that he, too, had had difficulties communicating
with Father and that such attempts were often met with anger. And Nevarez
confirmed that Father often became upset and needed to be calmed down during his
supervised visitations with the children. Thus, it would have been reasonable for the
trial court to conclude that the appointment of a new attorney to rectify Father’s
communication issues with Fowler would have been futile given Father’s persistent
inability to communicate effectively with others in his case.
Finally, when the motion to withdraw was re-urged before the second day of
testimony began, Father told the trial court that he wanted new representation
16
because Fowler had declined to file a motion to allow Father to have virtual visitation
with his children from jail. But Father points to no actual deficiency in Fowler’s
representation at trial and agreed that he had met with her three times prior to trial,
that Fowler had scheduled for witnesses to testify on Father’s behalf, and that he had
no substitute counsel available despite his desire not to represent himself. The record
also shows that, upon her appointment, Fowler was present at all scheduled hearings,
filed various motions, attended mediation, cross-examined witnesses, and logged
reasonable objections during the first day of trial. For these reasons, the trial court
could have reasonably concluded that Father’s issues with Fowler were a mere conflict
of personalities rather than any deficiency in representation that would have
prejudiced Father at trial. See Cavaness v. State, No. 04-17-00517-CR, 2018 WL
3747809, at *5 (Tex. App.—San Antonio Aug. 8, 2018, pet. ref’d) (mem. op., not
designated for publication).
Accordingly, we conclude that the trial court did not abuse its discretion when
it denied Fowler’s motions to withdraw. We overrule Father’s first issue.
B. PRIVILEGE AGAINST SELF-INCRIMINATION
In his second issue, Father argues that the trial court violated his Fifth
Amendment rights by ordering him to answer, over his invocation of the privilege,
whether Mother had been using drugs at the time of the children’s removal.12
In his appellate brief, Father also summarily argues that the trial court
12
inadequately explained to him his right against self-incrimination. We overrule this
17
Specifically, he contends that this answer could incriminate him if he were to be
prosecuted for the offense of abandoning or endangering a child. We overrule this
issue because, even though the trial court erred by requiring Father to answer this
question, such error was not reversible. See Tex. R. App. P. 44.1(a).
1. The Trial Court Erred
A witness may invoke his privilege against self-incrimination in civil cases
whenever an answer might tend to subject him to criminal responsibility. In re Speer,
965 S.W.2d 41, 45 (Tex. App.—Fort Worth 1998, orig. proceeding); see In re A.H.,
No. 02-17-00222-CV, 2017 WL 5180785, at *4 (Tex. App.—Fort Worth Nov. 9,
2017, pet. denied) (per curiam) (mem. op.) (stating that a “termination trial is a civil
proceeding for purposes of the privilege against self-incrimination”). When a witness
invokes the privilege, the trial court must determine whether the invocation appears
to be made in good faith and is justifiable under all of the circumstances. Speer,
965 S.W.2d at 45. “The inquiry by the court is necessarily limited because the witness
need only show that a response is likely to be hazardous to him.” Id. Before requiring
a witness to answer, the trial court must be “‘perfectly clear, from a careful
consideration of all the circumstances in the case, that the witness is mistaken, and
argument for two reasons. First, Father waived this argument through inadequate
briefing because he provides no authority or argument on the issue. Tex. R. App. P.
38.1(i). Second, the trial court did adequately inform Father on the record that he had
the right to not testify concerning anything that would incriminate him and that, if
Father did so, the trial court had the right to make negative inferences from those
invocations.
18
that the answer(s) cannot possibly have such tendency’ to incriminate.” Ex parte
Butler, 522 S.W.2d 196, 198 (Tex. 1975) (quoting Hoffman v. United States, 341 U.S. 479,
488, 71 S. Ct. 814, 819 (1951)). However, the factfinder in a civil trial may draw
negative inferences based upon a witness’s assertion of the privilege. Speer,
965 S.W.2d at 46 (citing Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558
(1976)).
Under the circumstances of this case, it was reasonable for Father to fear that
answering the question about Mother’s drug use was likely to be hazardous to him
and could tend to be incriminating. Father was arrested for abandoning and
endangering a child based on the same nexus of facts underlying his termination
case—that Father had allowed the children to remain in the care of people who were
using methamphetamines. Section 22.041 of the Texas Penal Code provides that
(b) A person commits an offense [of abandoning or endangering a child]
if, having custody, care, or control of a child younger than 15 years, he
intentionally abandons the child in any place under circumstances that
expose the child to an unreasonable risk of harm.
(c) A person commits an offense [of abandoning or endangering a child]
if he intentionally, knowingly, recklessly, or with criminal negligence, by
act or omission, engages in conduct that places a child younger than 15
years in imminent danger of death, bodily injury, or physical or mental
impairment.
(c-1) For purposes of Subsection (c), it is presumed that a person
engaged in conduct that places a child in imminent danger of death,
bodily injury, or physical or mental impairment if:
....
19
(2) the person’s conduct related to the proximity or accessibility of
the controlled substance methamphetamine to the child and an analysis
of a specimen of the child’s blood, urine, or other bodily substance
indicates the presence of methamphetamine in the child’s body . . . .
Tex. Penal Code Ann. § 22.041.
If Father knew that Mother was using methamphetamines and he still allowed
the children to remain in her care, a strong argument could be made that Father
violated Subsection (b). See id. 22.041(b). Furthermore, the Department had filed
documentation with the trial court showing that B.C. had tested positive for
methamphetamines. Because of this, Father could have also reasonably feared
prosecution under Subsection (c-1)(2). See id. § 22.041(c-1)(2).
The Department argues that “it was reasonable for the trial court to have
concluded that [Father]’s answer would not likely incriminate him” because Father’s
endangerment charge was dismissed and because Father did not present specific
evidence to the trial court regarding that charge. These arguments are unavailing.
First, there is no indication that the charge was dismissed with prejudice and,
therefore, the State could have refiled it anytime within the applicable statute of
limitations—this time bolstered by Father’s statements made under oath. See Tex.
Code Crim. Proc. Ann. art. 12.01(4)(D) (providing a five-year statute of limitations for
abandoning or endangering a child). Second, documents in the clerk’s record strongly
suggest that the trial court knew that Father had been arrested for abandoning or
endangering a child and that B.C. had tested positive for methamphetamines. See In re
20
J.E.H., 384 S.W.3d 864, 869 (Tex. App.—San Antonio 2012, no pet.) (explaining that
“a trial court is presumed to judicially know what has previously taken place in the
case tried before it”) (internal quotations omitted).
For these reasons, we conclude that the trial court erred by making Father
answer whether Mother was using drugs in March 2021 because Father was justified
in believing that his answer could tend to incriminate him.
2. The Error Is Not Reversible
Our inquiry does not end, though, with the conclusion that the trial court erred;
we must also determine whether the error was reversible. See Tex. R. App. P. 44.1(a).
In civil cases, an error is reversible only if it “(1) probably caused the rendition of an
improper judgment” or “(2) probably prevented the appellant from properly
presenting the case to the court of appeals.” Id. This rule applies to all errors that
occur in civil cases. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011).
Because the error did not prevent Father from presenting the case on appeal, we will
focus our inquiry on whether it probably caused the rendition of an improper
judgment. We conclude that it did not.13
13
We note that Father has likely waived this issue by failing to address how this
error led to an improper judgment. See Mullendore v. Muehlstein, 441 S.W.3d 426, 430
(Tex. App.—El Paso 2014, pet. denied) (explaining that the civil appellant bears the
burden of showing harm and waives the issue by failing to do so); In re K.C.R.T.,
No. 02-10-00425-CV, 2011 WL 3426258, at *7 (Tex. App.—Fort Worth Aug. 4, 2011,
no pet.) (mem. op.) (same). But given the weighty nature of the issue as one that
touches upon both parental and constitutional rights, we will perform a harm analysis.
21
The trial court found by clear and convincing evidence that Father had
“knowingly placed or knowingly allowed the child[ren] to remain in conditions or
surroundings which endanger[ed]” their physical or emotional well-being14 and that
termination was in their best interest.15 See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(2). There was ample evidence—separate from Father answering affirmatively that
Mother had been using methamphetamines at the time of removal—to support these
findings:
• Father told Gibbs on the day of removal that Father would fail a drug test that
day;
• Father admitted to knowing that Paternal Grandmother and her boyfriend were
using methamphetamines while the children lived in the home;
• Father admitted that Z.C. did not see a doctor for the first five months of
Z.C.’s life;
• Father acknowledged having a history of substance abuse problems;
• Father had been concerned that Paternal Grandmother’s boyfriend had sexually
abused B.C., but B.C. was still present at the home with boyfriend also present
on the day that Gibbs arrived to investigate;
14
The following actions by a parent or other person in the home can support a
finding of endangerment under ground (D): inappropriate, abusive, or unlawful
conduct, In re P.N.T., 580 S.W.3d 331, 355 (Tex. App.—Houston [14th Dist.] 2019,
pet. denied); drug use, In re B.M.S., 581 S.W.3d 911, 917 (Tex. App.—El Paso 2019,
no pet.); and a parent’s prolonged absence due to incarceration, Walker, 312 S.W.3d at
617.
15
Courts must consider the well-known Holley factors when making a best-
interest determination. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
22
• Father had been incarcerated for nine of the fifteen months leading up to trial
and was still incarcerated at the time of trial;
• Father visited with the children only four times between removal and trial;
• Father declined to follow the recommendations of a mental health professional
who had diagnosed him with bipolar disorder;
• Evans testified that he could tell that Father was using drugs two or three days
prior to the children’s removal and that living in the house with Paternal
Grandmother exacerbated Father’s problems with substance abuse;
• Pair testified that he had used drugs with Paternal Grandmother and that he
had not seen Father in “some time” because Pair did not allow himself to be
around people who were actively using drugs; and
• Father did not know where he would live upon being released from custody
and indicated a desire to enter a long-term rehabilitation facility.
Additionally, the trial court was free to draw negative inferences from Father’s
assertions of his Fifth Amendment privilege in response to questions about whether
Father had ever physically assaulted Mother, whether Father had been using
methamphetamines at the time of removal, and whether B.C. had tested positive for
methamphetamines. See Speer, 965 S.W.2d at 46.
Thus, even if the trial court had not required Father to answer the question
about Mother’s drug use, there would have been ample evidence to support the trial
court’s Section (D) and best interest findings. For these reasons, we cannot say that
the trial court’s error probably caused the rendition of an improper judgment
terminating Father’s parental rights to the children. See In re C.E.M., 64 S.W.3d 425,
429–30 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (holding in a termination case
23
that any potential error by the trial court in admitting certain evidence did not result in
an improper judgment because other evidence supported the judgment). We overrule
Father’s second issue.
III. CONCLUSION
Having overruled Father’s two issues, we affirm the judgment of the trial court.
/s/ Brian Walker
Brian Walker
Justice
Delivered: November 23, 2022
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