in the Interest of I.C., N.C., A.C., and D.C., Children ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00300-CV
IN THE INTEREST OF I.C., N.C.,
A.C., AND D.C., CHILDREN
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FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
TRIAL COURT NO. CIV14-0275
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MEMORANDUM OPINION1
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After a trial, a jury found by clear and convincing evidence that the parent-
child relationships between Appellant C.R. (Mother) and children I.C., N.C., A.C.,
and D.C. and between Appellant D.C. (Father) and each of the four children
should be terminated. The trial court found by clear and convincing evidence
that Mother and Father had knowingly placed or knowingly allowed the four
1
See Tex. R. App. P. 47.4.
children to remain in conditions or surroundings which endangered their physical
or emotional well-being; had engaged in conduct or knowingly placed their
children with persons who engaged in conduct which endangered the children’s
physical or emotional well-being; and had failed to comply with the provisions of
a court order that specifically established the actions necessary for the return of
the children, who had been in the permanent or temporary managing
conservatorship of the Texas Department of Family and Protective Services
(TDFPS) for not less than nine months as a result of the children’s removal from
Mother and Father under chapter 262 for the abuse or neglect of the children.2
The jury implicitly found and the trial court explicitly found by clear and
convincing evidence that termination of the parent-child relationships between
the children and Mother and Father was in the children’s best interest.3 The trial
court terminated the parent-child relationships between the children and Mother
and Father, and Mother and Father timely appealed.
In five issues, Mother contends that the evidence is legally and factually
insufficient to support termination; that the trial court abused its discretion by
improperly commenting on Father’s credibility and the weight of the alleged
hearsay offered through the play therapist; that the trial court erred by denying
2
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp.
2015).
3
See id. § 161.001(b)(2).
2
Mother’s motion to strike and motion for mistrial regarding said alleged hearsay;
and that her trial counsel was ineffective by failing to properly object to the trial
court’s improper comments, certain inadmissible hearsay, and improper
argument. Father adopts those five issues by reference4 and also raises eight
other issues challenging the legal and factual sufficiency of the evidence
supporting the termination of his parental rights, the trial court’s admission of
alleged hearsay, the jury charge, and the number of jurors on the jury and
contending that the trial court violated his rights to a fair trial and due process by
sua sponte compelling a demonstration by Father and commenting on the
evidence, his credibility, Father’s counsel’s performance and ethics, and the
weight of the evidence offered against Father. Because we hold that the
evidence is sufficient to support termination, that the trial court did not reversibly
err, and that Mother did not prove that her trial counsel committed ineffective
assistance of counsel at trial, we affirm the trial court’s judgment terminating both
parents’ parental rights.
I. Sufficiency of the Evidence to Support Termination
In her first two issues, Mother challenges the endangerment findings
against her, the no-compliance finding against her, and the best interest finding
against her. In his first three issues, Father challenges the endangerment, no-
compliance, and best interest findings against him.
4
See Tex. R. App. P. 9.7.
3
A. Standard of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit.5 Consequently, “[w]hen the State seeks to sever permanently the
relationship between a parent and a child, it must first observe fundamentally fair
procedures.”6 We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent.7
Termination decisions must be supported by clear and convincing
evidence.8 “[C]onjecture is not enough.”9 Due process demands this heightened
standard because “[a] parental rights termination proceeding encumbers a value
‘far more precious than any property right.’”10 Evidence is clear and convincing if
5
Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985).
6
In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer,
455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)).
7
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–
55; Holick, 685 S.W.2d at 20–21.
8
See Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 802; see
also Tex. Fam. Code Ann. § 161.206(a) (West 2014).
9
E.N.C., 384 S.W.3d at 810.
10
E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102
S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C.,
384 S.W.3d at 802.
4
it “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.”11
For a trial court to terminate a parent-child relationship, TDFPS must
establish by clear and convincing evidence that the parent’s actions satisfy one
ground listed in family code section 161.001(b)(1) and that termination is in the
best interest of the child.12 Both elements must be established; termination may
not be based solely on the best interest of the child as determined by the trier of
fact.13
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven.14 In this case, then, we determine whether the evidence
is such that the jury could reasonably form a firm belief or conviction that TDFPS
proved the subsection (D), (E), or (O) termination ground and that termination of
11
Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at
802.
12
Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005).
13
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987);
In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
14
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
5
the parent-child relationships between both parents and the four children is in the
children’s best interest.15
We review all the evidence in the light most favorable to the finding and
judgment.16 We resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so.17 We disregard all evidence that a reasonable
factfinder could have disbelieved.18 We consider undisputed evidence even if it
is contrary to the finding.19 That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not.20 “A lack of evidence does not
constitute clear and convincing evidence.”21
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province.22 And
15
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2).
16
J.P.B., 180 S.W.3d at 573.
17
Id.
18
Id.
19
Id.
20
See id.
21
E.N.C., 384 S.W.3d at 808.
22
J.P.B., 180 S.W.3d at 573–74.
6
even when credibility issues appear in the appellate record, we defer to the
factfinder’s determinations as long as they are not unreasonable.23
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship.24 In reviewing the evidence for factual sufficiency,
we give due deference to the factfinder’s findings and do not supplant the verdict
with our own.25 We determine whether, on the entire record, a factfinder could
reasonably form a firm conviction or belief that the parent violated subsection (D),
(E), or (O) of section 161.001(b)(1) and that termination was in the children’s best
interest.26 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 in the truth
of its finding, then the evidence is factually insufficient.27
23
Id. at 573.
24
In re A.B., 437 S.W.3d 498, 500 (Tex. 2014).
25
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
26
See Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28
(Tex. 2002).
27
H.R.M., 209 S.W.3d at 108.
7
B. Endangerment Findings: Law and Application to Facts
TDFPS’s Exhibit 7, the family service plan, was admitted into evidence at
trial without objection or limitation while TDFPS was questioning Father. The
exhibit includes the following language,
On March 26, 2014 [TDFPS] received a priority 1 intake
alleging physical abuse of [the four children] by [Mother] and [Father]
and physical abuse of [A.C.] by [Uncle D]. It was alleged that [A.C.]
was seen with a fist bruise on the left side of his head and that the
injury was not consistent with [F]ather’s explanation. [A.C.]
complained of pain at the site of the injury but was not taken to the
doctor. It was also alleged that [A.C.] sustained a quarter sized red
cut on the top of his head. While [F]ather stated that the injury
occurred after a jewelry box fell on [A.C.’s] head, [A.C.] and [N.C.]
stated that [F]ather hit [A.C.] in the head with a hammer, causing the
injury. [D.C.] II has 3 green dots tattooed on his right wrist. It was
alleged that [N.C.] had a fist sized bruise on her back. [Mother] and
[Father] claimed that the injury was sustained when the children
were fighting; however, [N.C.] stated that she was struck in the back
by [Father]. [A.C.] has a scar on his back that looks like he was
branded with the top piece of a lighter. [A.C.] stated that this was
done by Uncle D. It is unknown if the children have old injuries;
however, [D.C.] II, [A.C.], and [N.C.] have several scars, especially
[A.C]. . . .
....
The level of concern for child vulnerability is extreme because
of the following reasons: The children are under the age of five and
are[,] therefore, unable to protect themselves. The children also
appear to fear retribution from [Father].
The level of concern for caregiver capability is extreme
because of the following reasons: [Father] and [Mother] appear to
lack knowledge of child development and significantly lack the
parenting skills needed to meet the children’s behavioral and
developmental needs. The discipline practices of [Father are]
violent, out of control, and disproportionately harsh compared to the
misbehavior, as he hit [A.C.] in the head with a hammer after he
8
defecated in the closet. [Father] was also recently arrested for
assault causing bodily injury to a family member.
The level of concern for quality of care is extreme because of
the following reasons: [Mother] lacks empathy towards the children
by believing [Father’s] story over what the children tell her. The
children have been left with an inappropriate caregiver, [Father],
after [he] assaulted [Mother]. [A.C.] did not receive medical
treatment either time he received a head injury. . . .
The level of concern for maltreatment pattern is extreme
because of the following reasons: [A.C.] has received harm that is
inflicted (non-accidental) and was serious. Hitting the children in the
head and putting them in the dryer is bizarre maltreatment.
[Father]’s and [Mother]’s explanation[s] of [A.C.]’s injuries are
inconsistent with the . . . injuries. Originally, the only concern was
that [A.C.] had been hit in the head with a hammer; however, it was
later discovered that the children were being put in the dryer and the
dryer was being turned on while they were in there.
The level of concern for the home and social environment is
considerable because of the following reasons: . . . [Father]’s violent
behaviors expose the children to danger. [Mother] has been a victim
of family violence. [Father] currently faces criminal charges for
assault causing bodily injury to a family member.
The level of concern for response to intervention is
considerable for the following reasons: [Father] and [Mother] take
the allegations less serious than D.F.P.S. Both [Father] and
[Mother] also offered implausible explanations, in an attempt to
deliberately mislead C.P.S.
The level of concern for protective capacities is extreme for
the following reasons: [Mother] appears unwilling to protect the
children from [Father]. There is a lack of support network that could
help ensure the safety of the children and provide adequate
supervision of the children. [Mother] rejects necessary protective
interventions, as she allowed [Father] to supervise the children
despite a protective order that stated she was not to do this.
Father’s cousin L.G. testified that one summer day in 2012, 2013, or 2014,
she saw a welt on Mother’s arm. Mother told L.G. that Father had hit her with a
9
metal chain, causing the welt. Later that day, L.G. witnessed an altercation
between Mother and Father. They argued, and then Father hit Mother’s head
multiple times with a steel-toed boot. L.G.’s disabled brother and mentally ill
younger brother saw the assault; L.G. testified that Mother and Father’s children
were also in the room during the assault but that she believed they were asleep.
L.G. testified that the next day, Mother’s face was so swollen and her right eye
was so bloody that she looked like the character E.T. L.G. testified that Mother
had also told her of a time when Father had slapped Mother in Azle.
L.G. testified that she believed the children were disciplined “[a] little much,
but not as bad as what happened . . . with [A.C].”
K.C., Father’s sister, testified that in August 2012, after Mother was struck
in the head with a boot by Father, Mother called to tell K.C. K.C. drove from her
home in Weatherford to Mother’s home in Granbury and insisted that Mother go
to the hospital. But Mother “said that she wanted to go to Weatherford so that it
could be as if she [had been] with [K.C.]” K.C. complied with Mother’s wishes
and drove her to the Weatherford hospital. K.C. heard Mother tell hospital
personnel that she had fallen while helping K.C. move things in her Weatherford
home. Mother was diagnosed with a concussion and received six staples to
close her head wound. When K.C. drove Mother back to her Granbury home,
K.C. saw that I.C. appeared scared and withdrawn, which was not his usual
demeanor, and she took him home with her.
10
S.K., Father’s cousin, testified that she went to the family’s home a couple
of days later and saw Mother and the four children in the living room. Mother’s
face was badly bruised, and one of her eyes was very red and contained clotting
blood. Mother told S.K. that she and Father had argued, she had thrown a shoe
at him, and then he had beaten her with a steel-toed boot. Mother told S.K. that
the children and L.G. had witnessed the assault. S.K. saw that a long cut on
Mother’s head had been mended with staples. S.K. also testified that Mother
had told her that Father had hit her with a metal dog chain during the same
incident.
S.K. testified that Mother had admitted that she had asked another relative
to take her to the Weatherford hospital, where she made up a story to avoid
incriminating Father, who was already on probation. S.K. asked why Mother did
not leave Father, and Mother told her that she could not leave the children
without a father. S.K. also testified that “pretty much everybody in the family
offered [Mother] somewhere to stay if she left [Father].”
S.K. testified about another incident in which she heard Mother and Father
fighting behind a locked door. When the door opened, Mother was crying and
stated that Father had just choked her. S.K. saw red marks around Mother’s
neck.
S.K. testified that Mother had told her that Father had a tattoo gun and
gave then one-year-old I.C. the tattoo of three green dots on his finger. S.K.
additionally testified that Father and Mother told her that Father had made the
11
tattoo gun. Father testified that he thought a roommate had given the child a
tattoo when Father went outside to smoke a cigarette.
S.K. also testified that I.C. told S.K.’s mother that Father had hit A.C. on
the head with a hammer. S.K.’s mother told S.K., and she reported the incident
to CPS. CPS removed the children from the home the following day, March 26,
2014, and the parents voluntarily placed them with S.K. and her husband. A.C.’s
story to S.K. regarding the cause of the mark on his head was consistent with
S.K.’s mother’s story. None of the children ever told S.K. anything different about
the cause of the injury. Father told S.K. that a wooden box fell on A.C.’s head
when he was trying to climb up a dresser to retrieve “a DVD or something like
that.” Mother testified that A.C. told her a similar story the night of the incident,
but she admitted that she never questioned him alone.
On February 21, 2014, Mother had told the police in writing that Father had
hit her with a toy and his hand. He was then arrested for assault with bodily
injury to a family member. Mother testified that she lied to the police about the
assault because she was mad at Father, whose brother had told her that Father
was cheating on her while she was at work. A magistrate entered an emergency
protective order against Father. Mother did not honor the protective order,
inviting Father back to the home after a couple of weeks. Both Mother and
Father testified that the reason Father moved back home was that she needed
help with the children.
12
Mother and Father both denied that Father had ever been abusive with
her, and Mother denied that she had ever told anyone that he had hit her except
the police in the incident described above. Mother also testified that she knew
that the children had accused Father of hitting them but that she did not believe
they were telling the truth. Father likewise denied allegations that he had abused
the children.
The children’s play therapist, Cheryl Bullock, testified that she began
treating the children about three months after they were removed from their
parents. Bullock testified that on July 7, 2014, which she believed was their
second therapy session, N.C. and A.C. each separately reported “[b]eing put in a
dryer and [it] being turned on.” A.C. “said [that he] was put in [a] dryer and
banged around.” A week later, “[h]e said [A]unt said we [are] going back to
[D]ad. . . . He put me in dryer. Aunt said . . . [D]ad can’t hit me.” On August 4,
2014, when A.C. was three years old, he saw the toy hammer and nails in a
therapy session “and kind of stared at it and then he told [Bullock] about the
hammer.” Specifically, “He said my daddy hit me with a hammer. My head [was]
bleeding and I was scared. Police took [D]addy and [the] hammer. I don’t want
to go back.” On August 25, 2014, N.C. told Bullock that “Dad hit [A.C.] with [the]
hammer. His head was bleeding.” That same day, I.C. told Bullock, “[D]addy put
me in the dryer. He shut the door and turned it on. I was bad so [D]addy put me
in there.” On October 13, 2014, N.C. told Bullock that she “was put in [the] dryer
with [her] brothers” and that it “hurt [her] knees and brothers’ knees.” N.C. also
13
told Bullock that she had told Mother what Father had done and that Mother “told
[D]addy not to do that. He got mad and hurt her.” On October 27 or 28, 2014,
I.C. told Bullock that “his dad[] hit [A.C.], his brother, on the back several times.”
On December 29, 2014, A.C. told Bullock that “Dad hit [M]ommy and she cried. I
was scared.”
On June 8, 2015, A.C. told Bullock, “I’m mad at [D]addy. I don’t love
[M]ommy.” Bullock testified that on June 22, 2015,
[N.C.] was not wanting to play with her toys. She was scared of all
of them, I think, except of her Elsa doll. And she had watched a
movie of Chucky, and it’s a doll that comes to life. I think he’s—
might be, I don’t know what you call it, but anyway a serial killer
embodied him and he kills people.
Bullock testified that the other children basically said “that they watched it
for disciplinary reasons.” N.C. told Bullock, “[W]e watched it at [D]addy’s and he
ma[d]e us watch it. I don’t like it. I [am] scared my dolls will get me. I only play
with [my] Elsa doll.”
Bullock testified that the children had never told her that Mother hurt them
in any way, that in therapy sessions immediately following an overnight visit with
parents, she never saw any visible injury, and that the children stated many times
that they loved Mother.
The jury also heard evidence of Father’s many run-ins with the law,
including periods of confinement.
As this court has often discussed,
14
Endangerment means to expose to loss or injury, to jeopardize. The
trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has knowingly
placed or knowingly allowed the child to remain in conditions or
surroundings that endanger the physical or emotional well-being of
the child. Under subsection (D), it is necessary to examine evidence
related to the environment of the child to determine if the
environment was the source of endangerment to the child’s physical
or emotional well-being. Conduct of a parent in the home can create
an environment that endangers the physical and emotional well-
being of a child.
. . . . Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s physical or
emotional well-being was the direct result of the parent’s conduct,
including acts, omissions, and failures to act . . . .
To support a finding of endangerment, the parent’s conduct
does not necessarily have to be directed at the child, and the child is
not required to suffer injury. The specific danger to the child’s
wellbeing may be inferred from parental misconduct alone . . . . As a
general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being.
....
We have also stated that abusive or violent conduct by a
parent may produce an environment that endangers the child’s
physical or emotional well-being.28
Further, “even though imprisonment alone does not prove that a parent engaged
in a continuing course of conduct that endangered the physical or emotional well-
28
In re M.N., No. 02-14-00404-CV, 2015 WL 3458315, at *1 (Tex. App.—
Fort Worth May 28, 2015, no pet.) (mem. op.) (internal quotations marks omitted)
(quoting In re S.G., No. 02–14–00245–CV, 2015 WL 392772, at *5 (Tex. App.—
Fort Worth Jan. 29, 2015, no. pet.) (mem. op.), and ln re L.E.M., No. 02–11–
00505–CV, 2012 WL 4936607, at *2 (Tex. App.—Fort Worth Oct. 18, 2012, no
pet.) (mem. op.)).
15
being of his child, it is nevertheless a factor that we may properly consider on the
issue of endangerment.”29
While they also heard Father’s and Mother’s denials of any domestic
violence, the jury heard evidence that Father had abused Mother and the
children on multiple occasions and that Mother alternately reported and
minimized his treatment of her to others but did nothing to protect her children
from his known propensity for violence. The jury also heard about the multiple
occasions that Father was absent from the home because of his incarceration.
The jury is the sole judge of the credibility of the evidence.30 We therefore hold
that the evidence is legally and factually sufficient to support the endangerment
findings under subsections (D) and (E) against both Mother and Father.
C. Best Interest Findings
1. The Law
There is a strong presumption that keeping a child with a parent is in
the child’s best interest.31 We review the entire record to determine the
child’s best interest.32 The same evidence may be probative of both the
29
In re G.H., No. 02-14-00310-CV, 2015 WL 1262627, at *2 (Tex. App.—
Fort Worth Mar. 19, 2015, no pet.) (mem. op.) (citation and internal quotation
marks omitted).
30
See J.P.B., 180 S.W.3d at 573.
31
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
32
In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
16
subsection (1) ground and best interest.33 Nonexclusive factors that the
trier of fact in a termination case may also use in determining the best
interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.34
These factors are not exhaustive; some listed factors may be inapplicable
to some cases.35 Furthermore, undisputed evidence of just one factor may be
33
Id. at 249; C.H., 89 S.W.3d at 28.
34
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations
omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest
finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384
S.W.3d at 807.
35
C.H., 89 S.W.3d at 27.
17
sufficient in a particular case to support a finding that termination is in the best
interest of the child.36 On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding.37 That is, “[a] lack of
evidence does not constitute clear and convincing evidence.”38
2. Application to the Facts
At trial, the children were ages six, five, four, and three years. It was clear
from Mother’s testimony that she was bonded to each of her children. Bullock
testified that the children loved their parents and that the children stated many
times that they loved Mother.
The children lived with Father’s cousin S.K. and her husband for several
months after the removal. S.K. testified that the children told her that they loved
their parents and wanted to go home. N.C. accused S.K.’s husband of
inappropriate discipline. N.C. told Bullock that she lied about S.K.’s husband
hitting her so she could go home.
The CPS conservatorship worker, Amanda Rodriguez, who had been the
family’s only conservatorship worker, testified that she believed that the parents
and children loved each other. She further testified that during visits, the children
36
Id.
37
Id.
38
E.N.C., 384 S.W.3d at 808.
18
showed their affection physically and the parents showed their love by bringing
the children toys and food and positively interacting with them.
Rodriguez also testified that based on her communications with the
children and her observations of them, they were ready for a permanent
resolution in the case. She admitted that termination would have a “significant
impact on these children” because they loved their parents and “want[ed] their
parents to be their parents[.]” Rodriguez testified that the children could
overcome that hurdle with “a supportive, loving family,” continued therapy, and “a
really good support system.”
Bullock testified that she saw significant progress in the children over the
fourteen months of therapy before trial. She believed that I.C. and N.C. made
the most progress. She stated that I.C., who had been very reserved, opened up
enough to laugh after accidentally flicking paint on her. D.C. became more
verbal.
Rodriguez agreed that sixteen months after the children originally came
into care, I.C. was less fearful, more open, and more talkative. She also said that
he did not like the tattoo and that TDFPS intended to have it removed if the
parents’ rights were terminated. Rodriguez testified that A.C. and N.C. were
“always . . . pretty verbal” and “willing to speak their mind” so had not “changed
as much.” She stated that D.C. “ha[d] definitely become more verbal and more
active.” Rodriguez stated that the children thrived in school, were very eager to
learn, and therefore needed someone who would encourage them in school and
19
support them. She also stated that the children needed love, nurturing, respect,
and safety in addition to having their basic needs met and that those needs
would be at risk of not being met if the children were returned to the parents.
Rodriguez testified that some of the children had eczema but no other special
needs.
Rodriguez testified to having concerns because neither parent ever
acknowledged domestic abuse, other than Mother’s repudiated statement to the
police, nor did they acknowledge child abuse. Rodriguez testified that while
Father told her that he completed anger management, he did not provide proof of
completion before trial. Father did provide evidence of completion at trial.
Rodriguez also testified that the parents finished counseling but did not address
the key issues. She testified, “[I]f the parents indicate that there are no issues to
be addressed, then it’s very difficult, often impossible, for the provider to help
them make progress on something they are told doesn’t exist.” Rodriguez
testified that she had indicated when she made the counseling referral that she
wanted Father and Mother to work on domestic violence issues, appropriate
parenting, and “any kind of interpersonal relationships that [could] be affecting
their ability to safely parent their children.” Rodriguez testified that TDFPS never
felt like the children would be safe being returned to the parents full-time. She
also testified that she believed the children would be in danger if they were
returned to their parents. She identified Father’s hitting A.C. in the head with a
20
hammer and putting the children in the dryer as “the biggest concern[s] in this
case.”
Rodriguez testified that during CPS-supervised visits, neither parent was
attentive enough to a potty-training child or a child in diapers. She also testified
that the children, who were normally “very lively and active,” and “[e]ven
rambunctious at times,” “would sit very still” in visits with Father. “They were very
quiet.” It seemed to Rodriguez that “they were afraid.” On the other hand,
Rodriguez testified that in Mother’s visits with the children, the children were
more themselves, but Mother “appeared to be very overwhelmed” when they
were excited or misbehaved and would end up giving up on her attempts to
discipline and just ignore the behavior. Rodriguez saw no increase in Mother’s
ability to apply skills she should have learned in her parenting class.
Bullock testified that the children regressed some as access between the
parents and children increased, with the most regression occurring when the
overnight or weekend visits occurred, culminating in Bullock making a report to
CPS at the end of October 2014 based on I.C. telling her that Father hit A.C. on
the back several times during their weekend visit with the parents.
Rodriguez testified that TDFPS’s ongoing concern about Father was “that
he [was] unable to take responsibility for his role in the removal” and “that it d[id]
not appear that he ha[d] gained protective capacities . . . to safely parent his
children.”
21
Rodriguez testified that even though the children were in two separate
foster homes at trial, TDFPS’s plan was relative adoption in one home. She
stated that two families were interested in being considered for placement upon
termination of the parents’ rights: Father’s cousin S.K. and her husband, who
had taken the children into their home for more than a year after CPS initially got
involved, and the B. family, Father’s aunt’s family. Rodriguez admitted that she
had heard S.K. testify that she did not wish to adopt the children and that
originally, the B. family had indicated that it could not take all the children.
Rodriguez maintained that TDFPS had no wish to have permanent
conservatorship of the children forever and would continue to focus on finding the
children a single home.
The jury could have properly concluded from the evidence that if the
children were returned to their parents, Father would continue to abuse the
children, unchecked by Mother, whom the jury could have also properly
concluded was a victim of domestic violence who chose to remain with Father,
despite their brief separation beginning shortly before trial. Given the children’s
young ages and lack of significant needs or special issues, the jury could also
have properly concluded that they were readily adoptable. Applying the
appropriate standards of review, we hold that the evidence is legally and factually
sufficient to support the best interest findings.
22
D. Conclusion on Sufficiency Issues
We overrule Mother’s first two issues as to the endangerment and best
interest findings and Father’s first and second issues as to those findings.
Because the case was submitted to the jury in broad form, we need only find the
evidence sufficient to support a single statutory ground for termination that was
submitted to the jury and to support the best interest findings to uphold the
termination judgment.39 We therefore do not reach the remainder of Mother’s
first two issues or Father’s third issue challenging the trial court’s findings that the
parents failed to comply with a court order.40
As to Father’s adoption of Mother’s first two issues, even if he could
properly attack the termination findings against Mother, which we do not hold,41
he failed to challenge the sufficiency of the evidence supporting the jury findings
against Mother in his amended motion for new trial and therefore did not
preserve error.42 We therefore also overrule Mother’s first two issues as adopted
by Father.
39
See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re D.N., 405 S.W.3d
863, 872 (Tex. App.—Amarillo 2013, no pet.).
40
See Tex. R. App. 47.1.
41
See In re T.N., 142 S.W.3d 522, 524–25 (Tex. App.—Fort Worth 2004,
no pet.).
42
See Tex. R. App. P. 33.1(a); Citigroup Glob. Mkts. Realty Corp. v.
Stewart Title Guar. Co., 417 S.W.3d 592, 594 n.1 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).
23
II. Evidentiary Issues
Mother complains in her fourth issue and Father complains in his first,
second, and fifth issues about the admission of play therapist Bullock’s testimony
and notes about the children’s statements of abuse by Father, and Father also
complains in his fourth issue about the admission of Mother’s statements to
family members about his abuse of her.
A. Bullock’s Testimony Repeating Children’s Comments
1. Section 104.006 hearing
Within his first two issues, Father complains that the trial court erred by not
conducting a family code section 104.006 hearing regarding the children’s
comments repeated by Bullock in her testimony.43 But Father did not object to or
seek to limit the admissibility of TDFPS’s Exhibit 7, which contained the same or
similar information as that derived from the children’s statements—Father hit
A.C. on the side of his head, causing a bruise and pain; Father hit A.C. in the
head with a hammer, causing a quarter-size cut; Father hit N.C. in the back,
causing a fist-sized bruise; Father put children in the dryer and turned it on.
“[U]nobjected-to hearsay is, as a matter of law, probative evidence.”44 Further,
when evidence that is identical or similar to the objected-to evidence is admitted
43
See Tex. Fam. Code Ann. § 104.006 (West 2014).
44
Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex.
1999); see Tex. R. Evid. 802 (“Inadmissible hearsay admitted without objection
may not be denied probative value merely because it is hearsay.”); City of Keller
v. Wilson, 168 S.W.3d 802, 812 n.29 (Tex. 2005).
24
elsewhere without objection, there is no harm.45 We therefore overrule the
remainder of Father’s first and second issues.
2. Rule 803(4)
In his fifth issue, Father contends that the children’s out-of-court
statements reported by Bullock do not qualify as a hearsay exception under rule
of evidence 803(4).46 Again, the same or similar information was admitted
without objection or limitation in TDFPS’s Exhibit 7. Thus, even if the trial court
abused its discretion by admitting Bullock’s testimony and notes containing the
children’s statements, a holding we do not reach, Father can show no harm.47
We overrule his fifth issue.
3. Mother’s Motion to Strike and Motion for Mistrial
In her fourth issue, Mother contends that the trial court abused its
discretion by denying her motion to strike and motion for mistrial based on
Bullock’s testimony about the statements that the children made to her. Mother
did not object on the first day of Bullock’s testimony. On the second day, when
45
In re W.J.H., 111 S.W.3d 707, 714 (Tex. App.—Fort Worth 2003, pet.
denied); see Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873
(Tex. 2008).
46
See Tex. R. Evid. 803(4).
47
See Reliance Steel & Aluminum Co., 267 S.W.3d at 873; W.J.H., 111
S.W.3d at 714; see also Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d
231, 235 (Tex. 2007); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907
(Tex. 2004).
25
Bullock’s notes were introduced, Mother objected to the lack of proper foundation
to TDFPS’s Exhibits 20 and 21 but withdrew her objection to at least Exhibit 21
and possibly to both exhibits after TDFPS provided more predicate evidence; the
record is unclear. Regardless, Mother made no other objections regarding the
testimony about the children’s statements.
On the day following the completion of Bullock’s testimony, Father filed a
motion for reconsideration challenging the admissibility of her testimony
regarding the children’s statements. During the arguments on that motion,
Mother’s attorney stated,
Your Honor, it is my recollection that a 104.006 hearing was
requested and—or offered, one or the other, and denied by the
court. And therefore I understood that there was an implicit finding
of reliability in the children’s statements. And based on my research
of the case law I determined that based on that implicit ruling, in my
mind, anyway, and the case law on 702, 703, I did not make an
objection; however, I was also not in possession of the Taylor case.
I was given a copy of the Taylor case at the close of the
testimony, I have now had a chance to review that case, and I
believe that it is probable that an appellate court could overturn and
send us back to a new trial on the admission of that evidence. So I’d
ask the court to, at the very least, grant a[n] instruction to the jury
that they not consider the hearsay statement evidence. But I would
prefer a mistrial.
In the interest of justice, we will treat this as Mother’s motion to strike and
motion for mistrial. The trial court did not explicitly rule on Mother’s oral requests.
Ultimately, the trial court denied Father’s motion, which we will treat as an implicit
denial of Mother’s oral motion.
26
Mother did not object at all when the testimony was admitted, and she
cannot rely on Father’s objection.48 Urged only after all Bullock’s testimony about
the children’s statements had been admitted with no objection by Mother,
Mother’s motion to strike or for mistrial regarding the testimony was untimely and
did not preserve error.49 Additionally, as to her entire issue, because TDFPS’s
Exhibit 7 was admitted without objection or limitation and contains the same
damaging information about the abuse of the children as Bullock’s testimony and
notes, any error would be harmless.50 We overrule this issue and, because of
the admission of TDFPS’s Exhibit 7 with no objection or limitation, Father’s
adoption thereof.
B. Mother’s Out-of-Court Admission
In his fourth issue, Father contends that the trial court abused its discretion
by admitting Mother’s statements made to third parties against him over his
objection and by denying his request that the jury be admonished that they could
not consider such evidence against him. But Father does not direct us to any
48
See, e.g., In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at *7 (Tex.
App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.); Howard v. Phillips, 728
S.W.2d 448, 451 (Tex. App.—Fort Worth 1987, no writ).
49
See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1); In re A.B.G., No. 09-
11-00545-CV, 2013 WL 257311, at *5 (Tex. App.—Beaumont Jan. 24, 2013, no
pet.) (mem. op.); Farm Servs. Inc. v. Gonzales, 756 S.W.2d 747, 750 (Tex.
App.—Corpus Christi 1988, writ denied).
50
See Bay Area Healthcare Grp., Ltd., 239 S.W.3d at 235; Volkswagen of
Am., Inc., 159 S.W.3d at 907.
27
place or places in the record where he so objected or requested. We therefore
overrule this issue as inadequately briefed.51
III. Improper Comments by Trial Court
In her third issue, Mother contends that the trial court erred by improperly
commenting on Father’s credibility and “the weight of the hearsay offered
through” Bullock. Mother complains about two particular instances. One
instance occurred as Father was testifying about the tattoo that evidence showed
I.C. received either when he was one year old or when he was about three years
old:
Q. So you think the tattoo—those three circles on your
son’s wrist, you think that just took a couple of seconds?
A. I mean, I’m guessing that.
Q. [Father], based on your experience getting tattoos don’t
you think it took longer than that?
A. No.
Q. How old was your son when that happened to him?
A. He was about three.
Q. Do you think that hurt him?
A. I asked him. But, I mean, he didn’t really talk about it.
[Ad litem]: Objection. Nonresponsive.
51
See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279,
284–85 (Tex. 1994); Hall v. Stephenson, 919 S.W.2d 454, 466–67 (Tex. App.—
Fort Worth 1996, writ denied); see also Tello v. Bank One, N.A., 218 S.W.3d 109,
116 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
28
Q. . . . Do you think that hurt him?
A. Yes.
THE COURT: Can you hold your breath for three seconds?
[A.]: Yes.
THE COURT: Let’s see you hold your breath for as long as it
takes to put three circles on somebody’s fingers with tattoos. Take a
big deep breath and hold it while we put the tattoo on.
[A.]: I was only out less than five minutes.
THE COURT: No, you said it takes less than three seconds to
put the tattoo on your son’s hand. I want to see if you can hold your
breath long enough to put a tattoo on. You can’t do it, can you?
[A.]: I can hold my breath, but I’m not sure what you’re
asking.
THE COURT: Yeah, you are. Go ahead.
The other instance occurred as Father’s trial counsel objected to the
admission of the children’s statements through their play therapist:
Q. So I’m going to ask you again, when did [A.C.] talk
about the hammer?
A. It was August the 4th, 2014.
Q. What did he say?
[Father’s counsel]: Again, Your Honor, I would object. Calls
for hearsay. I don’t think there’s been a predicate laid as to [A.C.] as
a credible source at that particular time. And the validity and
reliability of the statement, I don’t think, has been satisfied. I think
the court is required to have a special hearing on that.
THE COURT: Don’t forget to say it’s very prejudicial to your
client.
[Father’s counsel]: I’m sorry?
29
THE COURT: Don’t forget to say it’s very prejudicial to your
client. Overruled.
[Father’s counsel]: Your Honor, may we approach?
THE COURT: No.
[Father’s counsel]: Your Honor, I respectfully move for a
mistrial. Court’s last comment is unique in my 46 years of practicing
law, and I think it’s inappropriate and I can’t allow my client to let that
go. So I would move for a mistrial at this time.
THE COURT: Denied.
Mother did not timely object to either comment. “[O]bjection to a trial
court’s alleged improper conduct or comment must be made when it occurs if a
party is to preserve error for appellate review, unless the conduct or comment
cannot be rendered harmless by proper instruction.”52 While Mother argues that
the trial court’s comments were incurable by instruction and required no
objection, she does not “explain how any comments made by the trial judge were
incurable or would excuse [her] failure to preserve error.”53 Additionally, her
motion to recuse the judge and motion for mistrial, filed the next day, were not
timely to preserve this complaint about the comments.54 We note that Mother
does not complain about the denial of her motion to recuse. We overrule
Mother’s third issue.
52
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); see Tex. R.
App. P. 33.1.
53
See Tex. R. App. P. 33.1; Dow Chem. Co., 46 S.W.3d at 241.
54
See Tex. R. App. P. 33.1; Dow Chem. Co., 46 S.W.3d at 241.
30
Father has adopted by reference Mother’s briefing of her third issue, but he
did not object that the trial court improperly commented on the tattoo evidence.
He therefore did not preserve that complaint.55 Father did, however, preserve his
complaint in the second exchange quoted above. Father’s trial counsel stated
his often repeated objection to Bullock’s testimony:
Again, Your Honor, I would object. Calls for hearsay. I don’t
think there’s been a predicate laid as to [A.C.] as a credible source
at that particular time. And the validity and reliability of the
statement, I don’t think, has been satisfied. I think the court is
required to have a special hearing on that.
The trial court stated, “Don’t forget to say it’s very prejudicial to your client.”
Father’s counsel queried, “I’m sorry?” and the trial court repeated, “Don’t forget to
say it’s very prejudicial to your client. Overruled.” Father’s counsel then moved
for a mistrial based on the comment, and the trial court denied the motion.
As the Supreme Court of Texas has explained,
The United States Supreme Court, when presented with similar
allegations of judicial bias, has determined that judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion,
and opinions the judge forms during a trial do not necessitate
recusal unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. Further, not establishing bias
or partiality are expressions of impatience, dissatisfaction,
annoyance, and even anger. A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune. In short, a trial
55
See Tex. R. App. P. 33.1; Dow Chem. Co., 46 S.W.3d at 241.
31
court has the inherent power to control the disposition of cases with
economy of time and effort for itself, for counsel, and for litigants.
Similarly, Texas courts have held that the discretion vested in
the trial court over the conduct of a trial is great. A trial court has the
authority to express itself in exercising this broad discretion. Further,
a trial court may properly intervene to maintain control in the
courtroom, to expedite the trial, and to prevent what it considers to
be a waste of time.56
Mother’s argument, as adopted by Father, is that the trial court’s
comments were a comment on the weight of the evidence because the trial court
indicated an opinion on the truthfulness of the evidence. As the State points out
in its response to Mother’s brief, however, it is just as likely that the trial court
was sarcastically commenting on trial counsel’s wordiness. Regardless, given
the totality of the evidence against Father, we hold that Father has not shown
that this comment of the trial court probably caused the rendition of an improper
judgment against Father.57 We therefore overrule Father’s adopted third issue.
In his sixth issue, Father contends that he “did not receive a fair trial and
due process of law because of the Trial Court’s comments on evidence and
56
Dow Chem. Co., 46 S.W.3d at 240–41 (citations, internal quotation
marks, and internal quotation alteration marks omitted).
57
See Tex. R. App. P. 44.1(a); In re M.R.J.M., 280 S.W.3d 494, 501 n.7
(Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g); Metzger v. Sebek, 892
S.W.2d 20, 39 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
32
display of animosity toward Father and his Counsel.” Father cites no legal
authority for his contentions. We therefore overrule his sixth issue.58
IV. Jury Charge
In his seventh issue, Father contends that the trial court committed jury
charge error by defining “direct evidence,” instructing the jurors on the
preponderance-of-the-evidence burden of proof, and omitting the phrase “strong
presumption” concerning the rights of parents and children. We review a jury
charge for an abuse of discretion.59 A trial court abuses its discretion if the court
acts without reference to any guiding rules or principles, that is, if the act is
arbitrary or unreasonable.60 An appellate court cannot conclude that a trial court
abused its discretion merely because the appellate court would have ruled
differently in the same circumstances.61
A. Direct Evidence Instruction
Father objected to part of the following instruction:
58
See Tex. R. App. P. 38.1(i); Hall, 919 S.W.2d at 467; see also Fredonia
State Bank, 881 S.W.2d at 284–85.
59
Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)
(op. on reh’g); see In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000).
60
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004).
61
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995); see also Low, 221 S.W.3d at 620.
33
A fact may be established by direct evidence or by circumstantial
evidence or both. A fact is established by direct evidence when
proved by documentary evidence or by witnesses who saw the act
done or heard the words spoken. A fact is established by
circumstantial evidence when it may be fairly and reasonably
inferred from other facts proved.
Father’s objection was:
[T]here is a definition given in this proposed jury instruction that
doesn’t seem right to me. It’s a definition of what is direct evidence.
And it says direct evidence is evidence that’s proved by a document.
And I tried—I saw that or at least recognized it for the first time this
morning. Spent an hour and a half trying to find a good definition for
what is direct evidence. And I’ve asked the court reporter if she had
something that defined that, and she wasn’t able to find it.
I was not looking through the pattern jury instructions for CPS.
I have all the ones for criminal law and couldn’t find it there. Not to
say it’s not there, I just couldn’t find it.
And—but in this case it would be in my opinion error to instruct
the jury that a document is, if I may—
....
. . . . I don’t have the final product. But it says if acts
established by direct evidence have been proved by documentary
evidence or by witnesses who saw the act done or heard the word
spoken. I don’t think just because something is in a document
makes it direct evidence.
And particularly in this case the court admitted into evidence
copies of notes taken by Ms. Bullock that included statements made
outside the court, obviously in her session, by one or several of the
children at various times.
So my objection was hearsay and hearsay on hearsay. But to
call it direct evidence of anything, I think, is misapplication of my
understanding of direct evidence. Direct evidence, I would think,
would be that is provided by witnesses who were percipient to what
was happening. And anything else is circumstantial evidence.
34
Father cites no legal authority for his contention that the trial court erred by
giving the instruction; we therefore overrule this complaint as inadequately
briefed.62 We note, however, that the instruction is the pattern jury charge
instruction for circumstantial evidence.63
B. Proof by a Preponderance of Evidence
Referencing only Santosky and “Due Process,” Father also complains of
the managing conservatorship questions, contending that they reference the
wrong burden of proof. The jury did not reach these questions. Father has
therefore shown no harm.64 In the interest of justice, we note that the questions
reflect the proper burden of proof for issues of conservatorship.65
C. Omission of Instruction on Strong Presumption
Finally, Father complains that the trial court failed to instruct the jury that
there is a “[s]trong presumption that the best interest of the child is served by
keeping a child with a parent.” While he cites the case that line is taken from,66
62
See Tex. R. App. P. 38.1(i) (providing that a brief must contain
appropriate citations to authorities); Hall, 919 S.W.2d at 467; see also Fredonia
State Bank, 881 S.W.2d at 284–85.
63
See, e.g., Comm. on Pattern Jury Charges, State Bar of Tex., Texas
Pattern Jury Charges: Family & Probate PJC 200.8 (2016).
64
See Tex. R. App. P. 44.1(a).
65
See Tex. Fam. Code Ann. § 105.005 (West 2014); In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007).
66
See R.R., 209 S.W.3d at 116.
35
he cites no authority for the proposition that excluding the statement from the jury
charge is an abuse of discretion.67 We overrule Father’s seventh issue.
V. Jury Size
In his eighth issue, Father contends that the trial court reversibly erred by
denying his request for a twelve-person jury, violating his constitutional rights to
equal protection and due process. Father did not raise an equal protection
complaint in the trial court. He has therefore forfeited that part of his issue,68 and
this court has already rejected a due process challenge to the government code’s
provision allowing a termination case in Parker County to be heard by a jury of
six members.69 We overrule Father’s eighth issue.
VI. Ineffective Assistance of Mother’s Counsel at Trial
In her fifth issue, Mother contends that her trial counsel provided
ineffective assistance of counsel by failing to object to (1) the two alleged
improper comments that the trial court made when Father was testifying and
when Father’s counsel was objecting, as discussed in her third issue; (2)
Bullock’s alleged hearsay testimony discussed in Mother’s fourth issue as well as
67
See Tex. R. App. P. 38.1(i); Hall, 919 S.W.2d at 467; see also Fredonia
State Bank, 881 S.W.2d at 284–85.
68
See Tex. R. App. P. 33.1(a), (b); Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.
2002); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
69
See In re G.C., 66 S.W.3d 517, 524–27 (Tex. App.—Fort Worth 2002, no
pet.).
36
the cumulative evidence offered through other witnesses of the children’s out-of-
court statements; and (3) TDFPS’s closing argument allegedly stating that
Mother had testified that she would reunite with Father if her parental rights were
not terminated and that there was no reason that she should not. To prove
ineffective assistance, Mother must show that her trial counsel’s performance
was so deficient that it denied her a fair trial whose result was reliable.70
A. Alleged Improper Comments
We have held that given the totality of the evidence against Father, Father
has not shown that the comment of the trial court, “Don’t forget to say it’s very
prejudicial to your client,” probably caused the rendition of an improper judgment
against Father.71 We therefore also hold that Mother’s trial counsel’s failure to
object to it likewise did not harm Mother’s case.72 As to the trial court’s comment
regarding Father’s testimony about the tattoo, Mother cannot show that that
comment, in light of the evidence of all the other abuse that she and her children
suffered at Father’s hands, harmed her case or deprived her of a fair trial.73
70
See In re J.O.A., 283 S.W.3d 336, 341–42 (Tex. 2009) In re M.S., 115
S.W.3d 534, 545 (Tex. 2003); see also Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984).
71
See Tex. R. App. P. 44.1(a); M.R.J.M., 280 S.W.3d at 501 n.7; Metzger,
892 S.W.3d at 39.
72
See Tex. R. App. P. 44.1(a).
73
See M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 687, 104
S. Ct. at 2064.
37
B. Evidence of the Children’s Out-of-Court Statements
Mother complains that her trial counsel was ineffective for failing to
properly object to the testimony of several witnesses, including Bullock, regarding
the children’s out-of-court statements recounting abuse. Mother does not
complain of her trial counsel’s failure to object to TDFPS’s Exhibit 7, which
contains the brunt of the damaging information relayed in the children’s out-of-
court statements to Bullock and other witnesses. That exhibit was admitted
without objection during Father’s testimony and before all the other witnesses
testified. Because the damaging evidence was already admitted through Exhibit
7 and because Mother does not complain of the admission of that exhibit, we
cannot say that the later admission of the same or similar evidence from other
sources harmed her case.74 Accordingly, we conclude and hold that Mother has
not shown ineffective assistance—that she was deprived of a fair trial with a
reliable result—because she has not shown any prejudice to her defense from
the alleged failures of her trial counsel to object to identified testimony and
evidence.75
74
See Tex. R. App. P. 44.1(a); Bay Area Healthcare Grp., Ltd., 239 S.W.3d
at 235; Volkswagen of Am., Inc., 159 S.W.3d at 907.
75
See M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 687, 104
S. Ct. at 2064.
38
C. Closing Argument
Mother testified that she asked Father to move back home a couple of
weeks after a magistrate issued an emergency protective order against him
because she needed help with their children. Mother also testified,
Q. . . . . If these children are returned to your care are you
going to reside with [Father]?
A. If—if the court doesn’t want me to I won’t.
[Ad litem]: Objection, Your Honor. Nonresponsive.
Q. . . . What is your plan if these children are returned to
you? Do you intend to live with [Father]?
A. No.
Q. When did he move out?
A. A few weeks ago.
Q. How long have your children been in care?
A. Since April of 2014.
Q. What are your plans for the children if they’re returned
to your care as far as living arrangements? Where do
you intend to live with them?
A. In the apartment?
Q. You and [Father] in the same apartment?
A. I’m sorry?
Q. You and [Father] with them in the same apartment?
A. He already moved out.
....
[Q.] (BY [TDFPS Counsel]) Why are you separated now?
39
A. Well, I guess we see how the case is going so we need
to separate. We’re trying to do this together.
Q. So in the last few weeks you decided it might be better if
you split up?
A. Yes.
Father testified that he had left the couple’s home “maybe two[ or] three
weeks” before trial and that he and Mother were “basically doing everything [they
could] to get the kids back.” He stated that if he “ha[d] to move out so she [could]
get them, at least they[ would] be with her.” “It’s something that [Father and
Mother] just came up with.”
In TDFPS’s closing argument, counsel argued,
These children are in foster care due to the abuse and the
neglect of the parents. The abuse by [D]ad, and the neglect,
neglectful supervision by [M]om by leaving the kids with [D]ad. And
not doing anything when the kids say hey, [D]ad puts us in the dryer.
Don’t do that.
Who did she choose? Who has she chosen in this case? She
chooses [Father].
Could I have left at any time? I could have. Fifteen months
later, all right. I guess we’re going to separate. Why are you going
to separate 15 months later? What’s the point? You don’t admit
anything happened, why would you separate? Why would you live
in separate houses? Why would he go somewhere else? Fifteen
months later, September 1st, he moves out.
What are you going to do if the kids come back you to,
[Mother]? I’m going to get back with [Father]. There’s no reason I
shouldn’t.
40
Control of counsel’s conduct during jury argument rests in the sound
discretion of the trial court.76 The test for improper jury argument is whether the
argument could have persuaded a juror of ordinary intelligence to agree to a
verdict contrary to that to which he would have agreed but for the argument.77
Reasonable inferences and deductions from the evidence are allowed in closing
argument, as is hyperbole.78 Reversal is required only when the entire record
shows that the jury argument was improper, uninvited and unprovoked,
preserved by a timely objection, and incurable by instruction, withdrawal, or trial
court reprimand.79 Further, an appellant must show that the argument
constituted harmful error by its nature, degree, and extent.80
Given the evidence of Father’s multiple instances of abuse of Mother, of
Mother’s knowledge of his abuse of the children, and of Mother’s remaining with
Father until separating strategically only right before trial, we hold that TDFPS’s
76
Richmond Condos. v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d
646, 667–68 (Tex. App.—Fort Worth 2008, pet. denied) (op. on reh’g); Wells v.
HCA Health Servs. of Tex., Inc., 806 S.W.2d 850, 854 (Tex. App.—Fort Worth
1990, writ denied); see also Tex. R. Civ. P. 269.
77
See Richmond Condos., 245 S.W.3d at 667–68.
78
See Walls v. Klein, No. 04-13-00565-CV, 2014 WL 3339791, at *1 (Tex.
App.—San Antonio July 9, 2014, pet. denied) (mem. op.).
79
See id. at 668; see also Standard Fire Ins. Co. v. Reese, 584 S.W.2d
835, 839 (Tex. 1979).
80
Standard Fire, 584 S.W.2d at 839; Richmond Condos., 245 S.W.3d at
668; see Tex. R. App. P. 44.1(a).
41
argument that Mother would return to Father should the children be returned to
her was a reasonable inference from the evidence and not improper.81 Mother’s
trial counsel therefore properly did not object to it.
D. No Ineffective Assistance Proved
Because Mother did not prove ineffective assistance of counsel at trial in
any of the three categories she identified, we overrule her fifth issue. Because
Father has demonstrated no standing to complain that Mother’s trial counsel was
ineffective, we overrule his adoption of Mother’s fifth issue.82
VII. Conclusion
Having overruled Mother’s dispositive issues, Father’s dispositive issues,
and Mother’s issues adopted by Father, we affirm the trial court’s judgment
terminating the parent-child relationships between Mother and each child and
between Father and each child.
PER CURIAM
PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.
DELIVERED: April 7, 2016
81
See Walls, 2014 WL 3339791, at *1.
82
See Buckholts ISD v. Glaser, 632 S.W.2d 146, 149–50 (Tex. 1982); In re
D.C., 128 S.W.3d 707, 717 (Tex. App.—Fort Worth 2004, no pet.).
42