in the Interest of D. L. D., Jr., L. L.S., J. J. S., H. N. S., Children v. Department of Family and Protective Services ( 2015 )

Opinion issued July 23, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00160-CV
———————————
IN THE INTEREST OF D.L.D., JR., L.L.S., J.J.S., AND H.N.S.,
MINOR CHILDREN
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2013-05778J
MEMORANDUM OPINION
Following a bench trial, the trial court signed a judgment terminating the
parent–child relationship between J.T.D. (“Mother”) and her four minor children:
D.L.D., L.L.S., J.J.S. and H.N.S.1 On appeal, Mother presents two issues. She
claims that the evidence was not legally or factually sufficient to support the trial
court’s judgment, and she alleges that the trial court engaged in misconduct during
trial.
We affirm.
Background
On October 18, 2013, the Department of Family and Protective Services
(“the Department”) filed suit in Montgomery County, requesting the trial court to
issue temporary orders appointing the Department the temporary sole managing
conservator of D.L.D., L.L.S., J.J.S. and H.N.S. If family reunification could not
be achieved, the Department sought to terminate Mother’s parental rights to her
children. The Department offered the affidavit of its authorized representative,
Amy Loggins, to support its petition.
In her affidavit, Loggins stated that, on July 4, 2013, the Department
received a report of “neglectful supervision” by Mother of four-year-old D.L.D.
Mother and her four children, ranging in age from one year to five years old, were
living in the Montgomery County Women’s Shelter. The report alleged that
D.L.D. was being “touched inappropriately” by his cousin. The report also alleged
1
The judgment also terminated the parent–child relationship between L.L.S., J.J.S.
and H.N.S. and their respective fathers. However, the fathers do not appeal the
judgment.
2
that Mother was aware of the touching, but had “failed to make adequate efforts to
ensure D.L.D.’s safety.”
On July 5, 2013, Loggins went to the shelter to investigate and spoke with
Mother. Mother told Loggins that her children were not subject to sexual abuse
and were adequately supervised. Loggins learned that Mother had come to live at
the shelter after Mother and Mother’s sister were “kicked out” of another shelter
for fighting.
Loggins learned that each child had a different father. Mother did not know
how to locate any of the fathers but stated that “they live somewhere in Louisiana.”
Loggins also spoke to D.L.D. Loggins stated that D.L.D. made no outcry of
sexual abuse to her, and Loggins observed that D.L.D. had no unusual marks or
bruises. Loggins also did not observe any marks or bruises on the three younger
children.
Loggins indicated in the affidavit that the Department had received a second
report of “neglectful supervision” on July 13, 2013, regarding all four children.
The report stated that “the children were accessible to their aunt, who place[s] the
children at substantial risk of harm due to inadequate supervision and sexual
abuse.” The report also stated that Mother allowed the aunt to have access to the
children “despite concerns related to sexual abuse.”
3
Loggins further stated in the affidavit that, on July 17, 2013, she received a
telephone call from a staff member at the women’s shelter where Mother and the
children were staying. The staff person informed Loggins that Mother “would be
asked to leave the shelter today for having too many violations while living at the
shelter.” The staff person stated that she “would not have a place for [Mother] and
her four children to live.”
That same day, Loggins went to the shelter and spoke with Mother, who
stated that she was being “forced out of the shelter and she did not know where she
would live.” Mother told Loggins that she did not have an alternative placement
for the children. Loggins concluded the affidavit by stating the Department sought
to be named the children’s temporary managing conservator because Mother was
unable to “to provide a stable home and [an] appropriate caregiver for her
children.”
The Department was appointed temporary managing conservator of the
children, and the children were placed in foster care. In August 2013, Mother
signed and agreed to follow a family service plan. The family service plan
indicated that Mother was not able to provide her four children with a safe and
stable environment. She and the children had been living in homeless shelters;
however, the family had been evicted from two shelters because Mother violated
the shelters’ rules by fighting with her sister, who also lived at the shelters. Mother
4
had been both “a victim and perpetrator of domestic violence with her sister.” The
plan stated that Mother’s four children “are exposed to family arguments, bullying,
name calling, and physical fights.” The service plan further stated, “While the
sisters have remained together, their relationship has become one of bickering and
violence toward one another. Their children have become the center of this verbal
and physical lifestyle. It is difficult to protect children when the lifestyle involves
violence and issues of insecurity and indecision.”
The service plan also indicated that “[t]wo of the children have medical
needs that have not been resolved, each of which will involve a form of surgery.”
The youngest child, H.N.S., required leg braces, but Mother had stated that “she
did not go back to the doctor to get [the braces].”
The plan set out several tasks and services for Mother to complete before she
would be reunited with her children. The service plan required Mother to complete
the following tasks and services: (1) participate in parenting classes; (2) attend
weekly therapy; (3) maintain contact with her children “on a regular basis to
promote/maintain bonding and attachment”; (4) develop a support system of
family and friends and “to utilize community available resources to benefit her
family”; (5) submit to random drug screenings “to ensure that she is maintaining a
drug-free lifestyle”; (6) submit to psychological testing; (7) refrain from engaging
in illegal activities; (8) contact the caseworker on a monthly basis; (9) maintain
5
safe housing; (10) stop associating or communicating with people engaging in self-
destructive behaviors; and (11) maintain stable employment and provide her
caseworker with bi-weekly income statements.
The family service plan warned Mother as follows:
This is a very important document. Its purpose is to help you provide
your child with a safe environment within the reasonable period
specified in the plan. If you are unwilling or unable to provide your
child with a safe environment, your parental and custodial duties and
rights may be restricted or terminated or your child may not be
returned to you. There will be a court hearing at which a judge will
review this service plan.
The trial court conducted a status hearing on September 11, 2013. Mother
and her court-appointed counsel attended the hearing. The trial court signed an
order, approving the family service plan. The order stated that Mother had
reviewed the service plan and had signed it.
Mother moved to Harris County, and the case was transferred to that county
in October 2013. During the pendency of the case, the trial court held permanency
hearings and signed orders that also approved the service plan.
The case was tried to the bench, beginning on November 11, 2014. D.L.D.’s
father testified on that date, but then trial was recessed for two months. Trial
resumed and concluded on January 20, 2015.
At trial, the Department presented evidence showing that, while the case was
pending, Mother failed to obtain housing or employment, tested for cocaine, failed
6
to undergo all scheduled drug screenings, was convicted of the offense of
prostitution, did not attend all scheduled visits with her children, and failed to keep
in contact with the Department’s caseworker. The evidence also showed that the
oldest child, D.L.D., had been living with his father since July 2014. D.L.D. was
doing well in his father’s care. The evidence further showed that the three younger
children were also progressing and doing well in their foster placement.
After the trial concluded, the trial court rendered judgment terminating the
parent–child relationship between Mother and her four children. The trial court
found that clear and convincing evidence showed (1) Mother had knowingly
placed or allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being; (2) Mother had engaged in
conduct or knowingly placed the children with persons who engaged in conduct
that endangered their physical or emotional well-being; (3) Mother had failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children; and (4) termination of her
parental rights was in the children’s best interest.2 The trial court appointed the
2
See Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec.
161.001(1)(D),(E),(O), (2), 1997 Gen. Tex. Laws 2012, 2015, amended by Act of
Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec.
161.001(b)(1)(D),(E),(O), (b)(2) (West, Westlaw through 2015 R. Sess.). We note
that the recent amendment to section 161.001 does not affect the resolution of
Mother’s appeal; however, the subsections have been renumbered.
7
Department as the sole managing conservator of the three youngest children.
D.L.D.’s father was named his sole managing conservator.
This appeal followed. Mother now raises two issues.
Sufficiency of the Evidence
In her second issue, Mother asserts that the evidence was legally and
factually insufficient to support the trial court’s finding that termination of the
parent–child relationship was in the children’s best interest. Mother does not
challenge the other findings of the trial court.
A. Standard of Review
Termination of parental rights requires proof by clear and convincing
evidence. Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001(1),
1997 Gen. Tex. Laws 2012, 2015 (amended 2015); In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002). This heightened standard of review is mandated not only by the
Family Code but also by the Due Process Clause of the United States Constitution.
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); see also Santosky v. Kramer, 455
U.S. 745, 753–54, 102 S. Ct. 1388, 1394–95 (1982) (recognizing fundamental
liberty interest parent has in his or her child and concluding that state must provide
parent with fundamentally fair procedures, including clear and convincing
evidentiary standard, when seeking to terminate parental rights). The Family Code
defines clear and convincing evidence as “the measure or degree of proof that will
8
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007
(Vernon 2014); J.F.C., 96 S.W.3d at 264. Here, the Department was required to
establish, by clear and convincing evidence, that Mother’s actions satisfied one of
the grounds listed in former Family Code section 161.001(1) and that termination
was in the children’s best interest. See Act of May 19, 1997, 75th Leg., R.S., ch.
575, § 9, sec. 161.001(1), (2), 1997 Gen. Tex. Laws 2012, 2015 (amended 2015).
When determining legal sufficiency, we review all the evidence in the light
most favorable to the finding “to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was true.” J.F.C., 96
S.W.3d at 266. To give appropriate deference to the fact finder’s conclusions, we
must assume that the fact finder resolved disputed facts in favor of its finding if a
reasonable fact finder could do so. Id. We disregard all evidence that a reasonable
fact finder could have disbelieved or found to have been incredible. Id. This does
not mean that we must disregard all evidence that does not support the finding. Id.
The disregard of undisputed facts that do not support the finding could skew the
analysis of whether there is clear and convincing evidence. Id. Therefore, in
conducting a legal-sufficiency review in a parental-termination case, we must
consider all of the evidence, not only that which favors the verdict. See City of
Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
9
In determining a factual-sufficiency point, the higher burden of proof in
termination cases also alters the appellate standard of review. In re C.H., 89
S.W.3d 17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and
convincing evidence cannot be viewed on appeal the same as one that may be
sustained on a mere preponderance.” Id. at 25. In considering whether evidence
rises to the level of being clear and convincing, we must consider whether the
evidence is sufficient to reasonably form in the mind of the fact finder a firm belief
or conviction as to the truth of the allegation sought to be established. Id. We
consider whether disputed evidence is such that a reasonable fact finder could not
have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at
266. “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 fact
finder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id.
We give due deference to the fact finder’s findings, and we cannot substitute
our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. Id. at 109.
We are mindful that the natural rights that exist between parents and their
children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
10
1985). Therefore, termination proceedings should be strictly scrutinized, and the
involuntary termination statutes should be strictly construed in favor of the parent.
Id. at 20–21; see also In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). However,
“[j]ust as it is imperative for courts to recognize the constitutional underpinnings of
the parent–child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.” C.H., 89
S.W.3d at 26; see also In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013).
B. Best Interest of the Children
1. Applicable Legal Principles
There is a strong presumption that the best interest of the child will be
served by preserving the parent–child relationship. See In re R.R., 209 S.W.3d
112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. TEX. FAM. CODE
ANN. § 263.307(a) (West, Westlaw through 2015 R. Sess.).3 Among others, the
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment: (1) the child’s age and
physical and mental vulnerabilities; (2) the frequency and nature of out-of-home
3
The Texas Legislature recently amended Family Code section 263.307. See Act of
Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.181, sec. 263.307 (West,
Westlaw through 2015 R. Sess.). However, the revisions to the statute were minor
and did not change the statutory language cited herein. Nor did the amendment
affect the numbering of the statutory provisions. Thus, we cite to the current
version of the statute.
11
placements; (3) the magnitude, frequency, and circumstances of harm to the child;
(4) whether there is a history of substance abuse by the child’s family or others that
have access to the child’s home; (5) the willingness and ability of the child’s
family to seek out, accept, and complete counseling services and to cooperate with
and facilitate an appropriate agency’s close supervision; (6) the willingness and
ability of the child’s family to effect positive environmental and personal changes
within a reasonable period of time; (7) whether the child’s family demonstrates
adequate parenting skills, including providing the child and other children under
the family’s care with minimally adequate health and nutritional care, guidance
and supervision, and a safe physical home environment; and (8) whether an
adequate social support system consisting of an extended family and friends is
available to the child. Id. § 263.307(b); R.R., 209 S.W.3d at 116.
The Supreme Court of Texas has set out some additional factors that courts
may consider when determining the best interest of the child, including: (1) the
desires of the child; (2) the emotional and physical needs of the child now and in
the future; (3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individual seeking custody; (5) the programs
available to assist these individuals to promote the best interest of the child; (6) the
plans for the child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the parent
12
that may indicate that the existing parent–child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976). This is not an exhaustive list, and a court need
not have evidence on every element listed in order to make a valid finding as to the
child’s best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling,
analysis of a single factor may be adequate in a particular factual situation to
support a finding that termination is in the best interest of the child. See In re A.P.,
184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).
The evidence supporting the statutory grounds for termination may also be
used to support a finding that the best interest of the child warrants termination of
the parent–child relationship. C.H., 89 S.W.3d at 28; In re H.D., No. 01–12–
00007–CV, 2013 WL 1928799, at *13 (Tex. App.—Houston [1st Dist.] May 9,
2013, no pet.). Furthermore, in conducting the best-interest analysis, a court may
consider not only direct evidence but also may consider circumstantial evidence,
subjective factors, and the totality of the evidence. See H.D., 2013 WL 1928799,
at *13.
2. Analysis
At trial, the Department presented evidence showing that Mother had been
unable to provide her children with a stable home in the past and was still unable to
do so at the time of trial. The family service plan, admitted into evidence,
13
indicated that Mother and her four children were evicted from the women’s shelter
in July 2013 because Mother and her sister had been fighting. Prior to that, she
and her children had been evicted from another shelter because Mother and her
sister had been fighting. At trial, Mother acknowledged that she had been evicted
from the last shelter for arguing with her sister.
The evidence showed that, during the 18 months the case was pending,
Mother still had not found housing. The Department’s caseworker, John Gregory,
testified at trial on January 20, 2015. He stated that Mother had not provided him
with the address where she was living, although required to do so by the service
plan. Instead, she had told him two or three times that she was living with “a
friend.” Gregory also testified that, starting in October 2014 when he was assigned
to the case, he had given information to Mother regarding how to obtain housing.
He stated that he had provided Mother with the contact information for HUD and
had instructed her to get on the waiting list for housing. Mother had never
provided proof to Gregory showing that she had contacted HUD or found housing.
At trial, Mother agreed that she did not have a safe and stable place to live.
However, she testified that she had applied with HUD on January 6, only two
weeks before trial, to be placed on a waiting list for housing. She acknowledged
that, at that time, her children had already been in foster care for over one year.
14
Gregory testified that Mother also had not demonstrated that she had been
seeking employment. Gregory stated that Mother told him that she would not
apply for a job at a fast food restaurant because she needed a better income to
support her four children. Gregory testified that he had informed Mother that she
needed to make an effort to find work to demonstrate to the court that she was
attempting to find employment. Seeking employment was also a requirement of
the service plan. Gregory testified that he had provided Mother with resources to
find a job; however, she had not taken advantage of these resources.
At trial, Mother testified that it was difficult for her to find a job because she
has dyslexia. See Holley, 544 S.W.2d at 371–72 (listing as best–interest factor:
any excuse for the acts or omissions of the parent). She also testified that she was
self-employed. Mother stated that she was in “sewing school” and was working to
create a website to start her own business. Mother stated that she was working to
get her business “off the ground” but did not know how long that would take.
In short, the evidence showed that Mother had not provided proof to the
Department that she had sought housing or employment during the 18 months the
case had been pending, despite the fact that the Department had provided her with
job and housing resources. In re J.M., No. 01–14–00826–CV, 2015 WL 1020316,
at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (stating
courts may consider the willingness and ability of the child’s family to effect
15
positive environmental and personal changes within a reasonable period of time).
“A parent who lacks stability, income, and a home is unable to provide for a
child’s emotional and physical needs.” In re J.R.W., No. 14–12–00850–CV, 2013
WL 507325, at *9 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied)
(mem. op.). We conclude that the evidence regarding Mother’s housing instability
and lack of employment is supportive of termination under the following Holley
factors: the emotional and physical needs of the children now and in the future; the
emotional and physical danger to the children now and in the future; the plans for
the children by these individuals or by the agency seeking custody; and the
stability of the home or proposed placement. See Holley, 544 S.W.2d at 371–72.
In addition, Gregory testified that Mother had “completed parenting classes,
a psychiatric evaluation, a psychological evaluation, and five sessions of individual
counseling”; but, she had failed to complete the other court-ordered tasks required
in the service plan. Mother testified that she was unable to complete all of the
required services because she did not have money for transportation. See id.
(listing as best–interest factor: any excuse for the acts or omissions of the parent).
Nonetheless, a factfinder may infer from a parent’s failure to take the initiative to
complete the services required to regain possession of her children that she does
not have the ability to motivate herself to seek out available resources needed now
or in the future. See J.M., 2015 WL 1020316, at *7; see also TEX. FAM. CODE
16
ANN. § 263.307(b)(10) (providing that courts may consider the willingness and
ability of the child’s family to seek out, accept, and complete counseling services
and to cooperate with and facilitate an appropriate agency’s close supervision);
Holley, 544 S.W.2d at 371–72 (listing as factor: parental abilities of individual
seeking custody and programs available to assist these individuals to promote best
interest of child as factors to consider).
The evidence further showed that Mother has a history of illegal drug use.
During the pendency of the case, in September 2014, Mother tested positive for
cocaine. Mother also failed to participate in other required drug testing requested
by the Department. Parental drug abuse reflects poor judgment and may be a
factor to be considered in determining a child’s best interest. See TEX. FAM. CODE
ANN. § 263.307(b)(8) (providing that courts may consider whether there is history
of substance abuse by child’s family). A parent’s exercise of poor judgment
currently and in the past demonstrates an inability to provide adequate care for a
child. See J.M., 2015 WL 1020316, at *7. Parental drug use has been found to be
a condition indicating instability in the home environment. Id.; see also In re S.B.,
207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A parent’s drug
use, inability to provide a stable home, and failure to comply with his family
service plan support a finding that termination is in the best interest of the child.”).
17
The evidence also showed that Mother had pleaded guilty to the offense of
prostitution in November 2014, two months before trial concluded. Like drug use,
engaging in criminal conduct is indicative of poor parental judgment and
instability. Drug abuse and prostitution places the safety and stability of the
children at risk. See In re M.C.H., No. 14–12–00103–CV, 2012 WL 1795123, at
*4 (Tex. App.—Houston [14th Dist.] May 17, 2012, no pet.) (mem. op.).
Relevant to her parenting abilities, Mother admitted to missing scheduled
visits with her children. Caseworker Gregory also gave the following testimony
regarding what he observed during one of Mother’s visits with her children:
[Mother] wanted to take a picture of the children and she had them
jump up and down and she made the statement I want them to do
something really retarded so I can take a picture. And also at that
visit, at the very beginning of the visitation, [D.L.D.] had called his
mom by first name and not by mom. And I had to step in in order to
correct him when it should be mom that had corrected him and that
showed a lack of bondage between them.
See Holley, 544 S.W.2d at 371–72 (identifying as factor: parental abilities of
individual seeking custody and acts or omissions of the parent that may indicate
that existing parent–child relationship is not a proper one).
At the time of trial, the oldest child, D.L.D., was seven years old. The three
younger children, L.L.S., J.J.S. and H.N.S., were four, three and two years old,
respectively. No evidence was presented regarding the desires of the children,
other than Gregory’s testimony indicating that D.L.D. was happy living with his
18
father. See id. (identifying desire of the child as best-interest factor). D.L.D.’s
father testified that D.L.D. had been living with him in Louisiana since July 2014.
He stated that D.L.D. seldom asked about Mother.
Testimony revealed that all four children were doing much better at the time
of trial than they had been doing when removed from Mother’s care in July 2013.
The evidence showed that, when removed from Mother’s care, D.L.D. was not
potty-trained, even though he was five years old. Caseworker Gregory testified
that seven-year-old D.L.D. was doing well in his father’s care. See id. (listing as
best-interest factors: parental abilities of individual seeking custody; plans for child
by these individuals or by agency seeking custody; and stability of the home or
proposed placement). The evidence showed that D.L.D. had become potty-trained.
The evidence further showed that D.L.D. was developmentally on target and was
doing well in school.
The evidence also showed that, in the past, D.L.D. had been taking
psychotropic medication for ADHD and phobias, and he had suffered from
hallucinations. The evidence at trial showed that D.L.D. had been taken off the
psychotropic medication by his doctor. The only medication that D.L.D. continued
to need was allergy medicine. See id. (identifying emotional and physical needs of
child now and in future as best-interest factor). The evidence further showed that
D.L.D.’s father was employed at Burger King as a manager. D.L.D.’s father
19
testified that he would ensure that D.L.D. maintained a relationship with his three
younger siblings by bringing D.L.D. to visit them in Texas.
The evidence further showed that the three younger children, L.L.S., J.J.S.
and H.N.S., were placed together in a foster home one month before trial.
Testimony was presented that the foster family wished to adopt the three children
and that the children had already bonded with the foster family. The evidence
showed that the children’s communication skills had improved since living with
the foster family. According to Gregory, the three children had made a “complete
turnaround” for the better since being with the foster family.
In addition, the evidence showed L.L.S., J.J.S. and H.N.S. each had special
medical needs. L.L.S. has ongoing speech and hearing problems. Gregory
testified that L.L.S. needs to be treated by an audiologist. Gregory stated that
three-year-old J.J.S. “at the beginning . . . was diagnosed with average functioning
and adjustment disorder and he was aggressive.” With respect to the youngest
child, two-year-old H.N.S, Gregory testified that “she has clubfoot.” H.N.S. also
has a heart murmur and vision issues. Gregory stated that H.N.S. has been referred
to an orthopedic surgeon regarding her foot. She has also been referred to an
ophthalmologist and a cardiologist. Gregory indicated that the current foster
parents are willing and able to meet the children’s medical, physical, and
emotional needs. See id. (listing as best-interest factors: emotional and physical
20
needs of child now and in the future, and plans for child by these individuals or by
agency seeking custody).
In her brief, Mother asserts that the evidence was not sufficient to support
the best-interest finding. Mother claims the evidence showed that the Department
had “a lack of interest” in reuniting her with her children. She claims that the
Department provided her with only “a small amount of help” with respect to
facilitating her completion of the services required for her to regain custody of her
children.
Mother acknowledges that Gregory testified that he had provided her with
resources to help her obtain housing and employment. However, she claims that
this was only a “minimal” or a “small amount” of help to reunite her with her
children. She claims that the Department should have provided her more
assistance to complete her services. She intimates that she would have completed
all of her services had the Department given her more assistance. Mother points
out that evidence was presented that she “lacked the funds to complete and attend”
the services.
Relevant to this argument, Gregory explained that the Department does not
obtain a job or housing for a parent; rather, the Department provides parents with
contacts and resources. He stated that it is the parent’s responsibility to find
housing and employment using those resources.
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Gregory testified that, although he provided Mother with job and housing
resources, she did not provide any proof that she had made any attempt to find
housing or employment using those resources. Mother, however, testified that she
had applied for employment at fast food restaurants and that she had contacted the
employment resources provided to her by Gregory. Mother also testified that she
had contacted HUD regarding housing.
“It is well established that, in a bench trial, the judge as the trier of fact
weighs the evidence, assesses the credibility of witnesses and resolves conflicts
and inconsistencies.” In re D.D.D.K., No. 07–09–0101–CV, 2009 WL 4348760, at
*6 (Tex. App.—Amarillo Dec. 1, 2009, no pet.) (mem. op.). Here, the trial court
was free to believe Gregory’s testimony and disbelieve that of Mother, including
her excuses for not completing the services and her claim that she had applied for
jobs and for housing. We note that, although Mother claims that the Department
should have offered her more assistance, she does not explain what additional
assistance could have been made available to her. Moreover, evidence was
presented showing that Mother did not take advantage of the resources that were
made available to her. The trial court could have reasonably inferred that she
would not have utilized any additional resources had they been provided to her.
After viewing all of the evidence in the light most favorable to the best-
interest finding, we conclude that the evidence was sufficiently clear and
22
convincing that a reasonable fact finder could have formed a firm belief or
conviction that termination of the parent–child relationship between Mother and
her children was in the children’s best interest. We further conclude that, viewed
in light of the entire record, any disputed evidence could have been reconciled in
favor of the trial court’s finding that termination of the parent–child relationship
between Mother and the children was in the children’s best interest or was not so
significant that the trial court could not reasonably have formed a firm belief or
conviction that termination was in the children’s best interest. Therefore, after
considering the relevant factors under the appropriate standards of review, we hold
the evidence is legally and factually sufficient to support the trial court’s finding
that termination of the parent–child relationship is in the children’s best interest.
We overrule Mother’s second issue.
Trial Court Conduct
In her first issue, Mother claims that the trial court engaged in behavior
during trial that violated the Texas Code of Judicial Conduct. Specifically, Mother
frames her issue as follows: “The trial court abused its discretion when it engaged
in conduct that was prejudicial to the business of the courts, undermines public
confidence in the judiciary, and creates a strong appearance of impropriety
resulting in the termination of Appellant’s parental rights.”
23
A. Legal Principles
To reverse a judgment on the ground of judicial misconduct, we must find
judicial impropriety, i.e., error, coupled with probable prejudice to the complaining
party, resulting in the rendition of an improper judgment. See Tex. Emp’rs Ins.
Ass’n. v. Draper, 658 S.W.2d 202, 209 (Tex. App.—Houston [1st Dist.] 1983, no
writ); see also TEX. R. APP. P. 44.1(a); Silcott v. Oglesby, 721 S.W.2d 290, 293
(Tex. 1987). In reviewing a “judicial misconduct” complaint, we examine the
entire record to determine whether the trial court’s conduct harmed the appellant.
Pitt v. Bradford Farms, 843 S.W.2d 705, 706–07 (Tex. App.—Corpus Christi
1992, no writ).
B. Analysis
Mother first asserts that the trial court failed to abide by Canon 3B(3) of the
Texas Code of Judicial Conduct, which provides: “A judge shall require order and
decorum in proceedings before the judge.” TEX. CODE JUD. CONDUCT, Canon
3B(3), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. B (Vernon 2013).
In support of this assertion, Mother directs us to the following exchange during the
January 2015 cross-examination of D.L.D.’s father, who is a manager at a Burger
King in Louisiana, by the appointed counsel for the unknown father:
[Unknown father’s counsel:] Have you tried the Texas Double
Whopper yet?
24
[Children’s Attorney Ad Litem:] Objection rel—asked and answered
actually.
[Unknown father’s counsel:] No. Not since—November he may
have tried it already.4 Pass the witness.
THE COURT: I’m going to leave you—well, no. You can go.
In her brief, Mother asserts, “This is an example of how the [trial court]
lacked the ability to control the courtroom and allow silliness to pervade a very
serious proceeding.” We disagree that this exchange demonstrates that the trial
court did not require order and decorum during the proceeding. After the attorney
ad litem objected, the unknown father’s counsel did not pursue the questioning and
passed the witness. The trial court then released the witness. The complained-of
exchange was isolated and brief. Because it was self-limiting in duration, the
exchange did not require the trial court to intervene or take corrective action.
Mother next claims that the trial court “intentionally disrespected” her in
violation of Canon 3B(4), which provides: “ A judge shall be patient, dignified and
courteous to litigants, jurors, witnesses, lawyers and others with whom the judge
deals in an official capacity, and should require similar conduct of lawyers, and of
staff, court officials and others subject to the judge’s direction and control.” TEX.
4
As mentioned, trial began in November 2014 with the testimony of D.L.D.’s
father. Trial was recessed and continued until January 2015 at which time
D.L.D.’s father again testified. The unknown father’s attorney had also asked
D.L.D.’s father whether he had tried the Texas Double Whopper in November
2014.
25
CODE JUD. CONDUCT, Canon 3B(4). Mother claims the trial court’s violation of
Canon 3B(4) occurred during the attorney ad litem’s examination of her:
Q. Have you ever been in jail?
A. No.
Q. And how often do you prostitute?
A. That was only one time.
THE COURT: Well, that’s bad luck, huh?
[Mother]: Uh-huh.
Mother avers that the trial court, in making the “Well, that’s bad luck”
comment, “lacked sensitivity and dignity.” She claims that the comment was
“insensitive and disrespectful” to her.
Here, from the written record, we are unable to discern the trial court’s tone
of voice, facial expression, or general demeanor while making the comment. We
can review the statement only as it appears in the record. Based on the bare
statement, we cannot ascertain whether the comment was said with sarcasm, as
Mother intimates, or was said with compassion. Moreover, we note that the
comment was made during a bench trial; thus, there was no jury to hear it.
Without more, we will not presume that the comment was improper.
Mother also asserts that the trial court violated Canons 5 and 6, which
provide:
(5) A judge shall perform judicial duties without bias or prejudice.
26
(6) A judge shall not, in the performance of judicial duties, by words
or conduct manifest bias or prejudice, including but not limited to bias
or prejudice based upon race, sex, religion, national origin, disability,
age, sexual orientation or socioeconomic status, and shall not
knowingly permit staff, court officials and others subject to the
judge’s direction and control to do so.
TEX. CODE JUD. CONDUCT, Canons 3B(5), (6).
Mother points to the following exchange, which occurred during the
Department’s examination of her, to demonstrate that the trial court violated
Canons 5 and 6:
Q. And you would agree with me that you still don’t have a safe place
to live as to today?
A. Okay. I was getting to that.
[The Department’s counsel]: Objection. Nonresponse.
[Mother]: Well, can I just -- I do have paperwork.
THE COURT: Shh.
[Mother]: I do have --
[the Department’s counsel]: Shh. Listen.
[Mother]: -- paperwork.
THE COURT: Listen.
[Mother]: And I do have --
THE COURT: Ma’am, listen to me.
[Mother]: Y’all not giving me --
27
THE COURT: Ma’am. Listen to me.
[Mother]: Yes, sir. Yes, sir.
THE COURT: Okay? Just --
[Mother]: Yes, sir.
THE COURT: -- answer the --
[Mother]: Yes, sir. Yes, sir. Yes, sir. I just want to show her that I
do have --
THE COURT: Shut up.
[Mother]: Oh, help me Jesus.
THE COURT: Just answer her question. Your attorney will --
[Mother]: I’m not --
THE COURT: Listen to me. Your attorney will have an opportunity
to ask you questions. That’s how this game is placed [sic]. Okay?
So, if she asks you if you have a safe and stable place to stay right
now, the answer is yes or no.
A. No.
THE COURT: There you go. You can explain by way of your
attorney when it’s your turn. Okay?
“Texas courts have held that ‘the discretion vested in the trial court over the
conduct of a trial is great.’” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.
2001) (quoting Schroeder v. Brandon, 172 S.W.2d 488, 491 (Tex. 1943) and citing
Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ
denied)). A trial court is necessarily allowed discretion in expressing itself while
28
controlling the trial of a case. Draper, 658 S.W.2d at 209; see Francis, 46 S.W.3d
at 241. 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.
Francis, 46 S.W.3d at 241.
Here, the record shows that the trial court exercised its broad discretion to
maintain control over the proceedings. See id. The trial court intervened when
Mother continued to speak after the Department’s counsel objected to Mother’s
answer as being unresponsive. The trial court attempted to explain to Mother that
her counsel would provide her with an opportunity to expound on her answers
during his questioning of her. However, Mother continued to speak over the trial
court and to interrupt despite the trial court’s repeated requests to Mother to be
quiet. Only after the trial court had directed Mother six times to stop speaking did
it then tell her to “shut up.” Even then, the record shows that Mother continued to
talk over the trial court. Given Mother’s noncompliance with the trial court’s
gentler requests to be quiet, we do not agree with Mother that the trial court’s
conduct was improper or demonstrates any prejudice against her, under the
circumstances.
Finally, Mother has not shown that any of the complained-of conduct, on
which she relies, likely caused the rendition of an improper judgment. See Silcott,
29
721 S.W.2d at 293; see also TEX. R. APP. P. 44.1(a). Nor does our review of the
entire record find any harm based on the conduct. See Pitt, 843 S.W.2d at 708.
We overrule Mother’s first issue. 5
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
5
The Department asserts that Mother waived her first issue because she did not
object in the trial court to any of the conduct of which she now complains on
appeal. “[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.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Mother does not explain
how the complained-of conduct was incurable or why she would be excused from
preserving error. See id. Nevertheless, we have examined the complained-of
conduct in the context of the entire record and conclude that it was neither
inappropriate nor harmful under the circumstances of this case.
30