in the Interest of O.L.A., K.B., and P.B., III

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-321-CV
IN THE INTEREST OF O.L.A., K.B., AND P.B., III
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
This is a parental rights termination case. Appellant Jamilia B. challenges
the judgment terminating her parental rights to two of her three children—K.B.
and P.B.2 First, Appellant complains that the evidence is legally and factually
insufficient to support the jury’s findings that she engaged in conduct or
1
See T EX. R. A PP. P. 47.4.
2
Appellant does not challenge the termination of her parental rights to her
oldest son, O.L.A. Appellant’s rights to O.L.A. were also terminated, and he
was placed in the care of his biological father.
knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children. She also
challenges the legal and factual sufficiency of the jury’s finding that she failed
to comply with her court-ordered service plan. In her second point, Appellant
complains that she was denied effective assistance of counsel because her trial
counsel withdrew from the case before filing any postjudgment procedural
protections or relief—including failing to file a motion for new trial or statement
of points. In her third point, Appellant complains that her due process rights
were violated when the trial court permitted her trial counsel to withdraw
before filing a motion for new trial or statement of points. Finally, Appellant
complains that her due process rights were further violated by section
263.405(i) of the Texas Family Code requiring a statement of points to be filed
within fifteen days of the trial court’s final order, when an appellate record was
not available to appellant counsel at that time. We affirm.
II. Factual and Procedural Background
O.L.A. is the biological child of Appellant and Andre A. K.B. and
P.B.—the younger of the three children to whom the jury terminated Appellant’s
parental rights—are the biological children of Appellant and Phillip B.3
3
During the pendency of this case, Phillip B. was found guilty of injury to
a child—O.L.A. Phillip B. is not a party to this appeal.
2
In 2001, Kansas child protective services removed O.L.A. from
Appellant’s home after her husband, Phillip B., admitted chasing the two-year-
old with a curtain rod and beating the child with the rod as punishment for
wetting his pants. Phillip B. was subsequently convicted of injury to a child,
served thirty days in jail, and was placed on probation for two years.
On the day of the beating, Appellant had left O.L.A. with Phillip B. so she
could go wash laundry. When she returned, Phillip B. had already put O.L.A.
to bed. The next morning, despite O.L.A. having a band-aid above his eye,
Appellant took O.L.A. to daycare without looking to see whether and to what
extent O.L.A. was injured. The daycare later called Appellant and informed her
that O.L.A. had been taken to the emergency room because of the injury.
Kansas officials removed O.L.A. from Appellant’s home, but returned him after
Phillip B. and Appellant completed court-ordered parenting classes and
counseling sessions. The family left Kansas and moved to Texas later that
same year.
Appellant admits that while she lived in Texas, she frequently left all three
of her children alone with Phillip B. Also while in Texas, additional allegations
of child abuse arose. In 2003, the Texas Department of Family and Protective
Services (“TDFPS”) received a referral from Denton school officials reporting
that O.L.A. had a “busted” lip that was “swollen and bloody.” Although
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Appellant and Phillip B. gave differing accounts of the events surrounding the
injury, O.L.A. told the TDFPS investigator that Phillip B. shoved him into a wall
the previous night while he was brushing his teeth. Appellant originally told
TDFPS that O.L.A. “busted” his lip in a fall while Appellant was in another
room, but she later stated that the injury occurred while O.L.A. was
“horseplaying” in the family’s home. Appellant testified that she did not initially
look to see how severely O.L.A. had been injured.
In 2005, the agency received yet another referral on O.L.A. after the child
came to school with a black eye. During the course of their investigation,
TDFPS officials observed numerous bruises, scratches, and scars all over the
child’s body. O.L.A. told investigators that his black eye occurred when Phillip
B. punched him in the eye for not sharing toys with his sister, and that the
scratches on his back came from Appellant’s fingernails. O.L.A. also said that
Phillip B. would often pinch his ears and hit him with a wooden boat oar as
punishment.
Appellant testified that she first saw the black eye when she took O.L.A.
to school and a teacher asked what had happened. She further testified that
she asked O.L.A. about the black eye, but he did not know how he got it. She
testified she did not see any of the other marks and bruises at this time, but
later testified she had seen most of the marks on previous occasions.
4
When asked about the boat oar, Appellant testified that she was aware
of the boat oar. She stated that Phillip B. had brought it home and told her he
was going to use it to “threaten” O.L.A. when he misbehaved. Through time,
the boat oar transformed into a paddle. Appellant testified that she remembers
the boat oar being brought home and that later she remembered the boat oar
being wrapped in tape. Although Appellant testified that the purpose of the
boat oar was to scare O.L.A., she also testified that she was concerned that
Phillip B. used the boat oar to physically punish both O.L.A. and K.B. When
TDFPS discovered the boat oar, it had stains on it. The stains tested positive
as blood.
During their investigation into O.L.A.’s injuries, a detective and protective
services’ workers learned that two other children resided in Appellant’s home.
The detective testified that when they were at Appellant’s home investigating,
Appellant would fluctuate “between out of control shouting and making
absolutely no sense, to sitting calmly for just a second. But as soon as
[investigators] tried to broach the subject [of O.L.A.’s injuries] . . . she start[ed]
shouting again.” At this time, Appellant denied any knowledge of any injury to
O.L.A. When case workers accompanied O.L.A. into the house, Appellant did
not examine him or look for his injuries. At trial, however, Appellant admitted
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she had seen all the injuries before, but gave varying and benign explanations
for their cause.
Investigators also reported apparent signs of domestic abuse.
Specifically, investigators observed numerous holes in several of the interior
doors of the home which Appellant admitted were caused by Phillip B. kicking
the doors when he became angry. Appellant testified that she was not at home
when the damage occurred, but the children were. She also testified that upon
seeing the damage to the house, she feared for herself and her children.
At the conclusion of its investigation, TDFPS removed the children from
the home and eventually filed this termination proceeding. In compliance with
the trial court’s interim order prescribing the manner by which Appellant could
possibly have the children returned to her, Appellant was referred to Dr. Mark
Foster for a psychological evaluation. Foster concluded, among other findings,
that Appellant focuses on herself “to an unhealthy extent” and has great
difficulty appreciating how her behavior impacts her children. Furthermore,
Foster concluded that Appellant had a distorted “perception of the world”, had
tendencies to “minimize or distort or deny” facts unfavorable to her, and met
the psychological profile of a person with a tendency to “regress[] into
antisocial behaviors” such as lying.
6
Appellant attended counseling from a number of individual and group
based parent-counseling programs. One of these counselors testified that
Appellant failed to acknowledge that abuse had occurred in her home and that
this denial would negatively affect Appellant’s ability to provide a safe home for
any of the children. This counselor terminated the counseling sessions due to
Appellant’s lack of progress. Appellant told another counselor that she was
shocked abuse had occurred and she was unaware of it happening in her home.
Appellant also told counselors that she was separated from Phillip B. during this
time period, but admitted at trial that she had told counselors that because it
was her plan to do so in the future.
At the conclusions of Appellant’s trial, the jury returned a verdict
specifically finding that Appellant had (1) knowingly placed or knowingly
allowed all three children to remain in conditions or surroundings that
endangered their physical or emotional well-being; (2) Appellant engaged in
conduct that endangered the physical or emotional well-being of the children;
(3) Appellant failed to comply with the provisions of the court-ordered plan for
the return of her children; and (4) termination of Appellant’s parental rights
would be in the best interest of the children. Appellant appeals from the
judgment on the verdict.
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III. Discussion
A. Legal and Factual Sufficiency of Termination
In her first point, Appellant contends that the evidence is legally and
factually insufficient to support the jury’s verdict terminating her parental rights
to K.B. and P.B. under family code sections 161.001(1)(D),(E) and (O).
Appellant does not challenge the legal or factual sufficiency that termination
was in the best interest of either child.
1. Burden of Proof and Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59,
102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
“While parental rights are of constitutional magnitude, they are not absolute.
Just 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.” In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002); In re S.B., 207 S.W.3d 877, 884 (Tex.
App.—Fort Worth 2006, no pet.). In a termination case, the State seeks not
just to limit parental rights but to end them permanently—to divest the parent
and child of all legal rights, privileges, duties, and powers normally existing
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between them, except for the child’s right to inherit. T EX . F AM. C ODE A NN.
§ 161.206(b) (Vernon Supp. 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985); S.B., 207 S.W.3d at 884. We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of
the parent. Holick, 685 S.W.2d at 20-21; S.B., 207 S.W.3d at 884; In re
E.S.S., 131 S.W.3d 632, 636 (Tex. App.—Fort Worth 2004, no pet.).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); S.B., 207 S.W.3d at 884. This
intermediate standard falls between the preponderance standard of ordinary civil
proceedings and the reasonable doubt standard of criminal proceedings. In re
G.M., 596 S.W.2d 846, 847 (Tex. 1980); S.B., 207 S.W.3d at 884; In re
K.W., 138 S.W.3d 420, 425 (Tex. App.—Fort Worth 2004, pet. denied). It is
defined as the “measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” T EX. F AM. C ODE A NN. § 101.007 (Vernon 2002); S.B., 207
S.W.3d at 884.
The higher burden of proof in termination cases elevates the appellate
standard of legal sufficiency review. J.F.C., 96 S.W.3d at 265; S.B., 207
9
S.W.3d at 884. The traditional no-evidence standard does not adequately
protect the parents’ constitutional interests. J.F.C., 96 S.W.3d at 265; S.B.,
207 S.W.3d at 884. In reviewing the evidence for legal sufficiency in parental
termination cases, we must determine whether the evidence is such that a fact-
finder could reasonably form a firm belief or conviction that the grounds for
termination were proven. J.F.C., 96 S.W.3d at 265-66; S.B., 207 S.W.3d at
884. We must review all the evidence in the light most favorable to the finding
and judgment. J.F.C., 96 S.W.3d at 266; S.B., 207 S.W.3d at 884. This
means that we must assume that the fact-finder resolved any disputed facts in
favor of its finding if a reasonable fact-finder could have done so. J.F.C., 96
S.W.3d at 266; S.B., 207 S.W.3d at 884. We must also disregard all evidence
that a reasonable fact-finder could have disbelieved. J.F.C., 96 S.W.3d at 266;
S.B., 207 S.W.3d at 885. We must consider, however, undisputed evidence
even if it is contrary to the finding. J.F.C., 96 S.W.3d at 266; S.B., 207
S.W.3d at 885. That is, we must consider evidence favorable to termination
if a reasonable fact-finder could, and disregard contrary evidence unless a
reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005); S.B., 207 S.W.3d at 885.
This higher burden of proof also elevates the appellate standard of factual
sufficiency review. C.H., 89 S.W.3d at 25; S.B., 207 S.W.3d at 885. “[A]
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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.”
C.H., 89 S.W.3d at 25; S.B., 207 S.W.3d at 885. In considering whether the
evidence of termination rises to the level of being clear and convincing, we
must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. C.H., 89 S.W.3d at 25; S.B., 207 S.W.3d at 885. Our inquiry
here is whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the parent violated one of the conduct provisions of
section 161.001(1) and that termination of the parent’s parental rights would
be in the best interest of the child. C.H., 89 S.W.3d at 28; S.B., 207 S.W.3d
at 885.
If, in light of the entire record, the disputed evidence that a reasonable
fact-finder 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 in the
truth of its finding, then the evidence is factually insufficient. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006). If we reverse on factual sufficiency grounds,
then we must detail in our opinion why we have concluded that a reasonable
fact-finder could not have credited disputed evidence in favor of its finding.
J.F.C., 96 S.W.3d at 266-67.
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2. Endangerment and Course of Conduct
In part of her first point, Appellant complains that there is legally and
factually insufficient evidence supporting the jury’s findings that she knowingly
placed or knowingly allowed K.B. and P.B. to remain in conditions or
surroundings that endangered their physical or emotional well-being and that
she engaged in conduct or knowingly placed them with persons who engaged
in conduct that endangered their physical or emotional well-being. See T EX.
F AM. C ODE A NN. § 161.001(1)(D), (E) (Vernon Supp. 2007). We disagree.
Endangerment means to expose to loss or injury, to jeopardize. Texas
Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); see also In
re M.C., 917 S.W.2d 268, 269 (Tex. 1996). 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. In re D.T., 34 S.W.3d 625, 633 (Tex.
App.—Fort Worth 2000, pet. denied). Conduct of a parent in the home can
create an environment that endangers the physical and emotional well-being of
a child. In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no
writ). For example, abusive or violent conduct by a parent or other resident of
a child’s home may produce an environment that endangers the physical or
emotional well-being of a child. See id. at 776-77; Ziegler v. Tarrant County
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Child Welfare Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ
ref’d n.r.e.).
Under subsection (E), the relevant inquiry is whether evidence exists that
the endangerment of the child’s physical well-being was the direct result of the
parent’s conduct, including acts, omissions, or failures to act. In re R.D., 955
S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. Tex.
Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex.
App.—Dallas 1995, no writ). Additionally, termination under section
161.001(1)(E) must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is
required. T EX. F AM. C ODE A NN. § 161.001(1)(E); D.T., 34 S.W.3d at 634; In re
K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). Under
either subsection (D) or (E), it is not necessary that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d
at 533.
Because the evidence concerning these two statutory grounds for
termination is interrelated, we consolidate our examination of it. In re J.T.G,
121 S.W.3d 117, 126 (Tex. App.—Fort Worth 2003, no pet.); In re B.R., 822
S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (recognizing the link
between a parent’s conduct and a child’s conditions and surroundings). The
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record contains the following evidence of subsection (D) environmental
endangerment and subsection (E) course of conduct endangerment of the
physical or emotional well-being of the children.
The evidence shows Appellant has a history of leaving all three children
with Phillip B. and that she continually failed to investigate or be aware of
injuries to O.L.A. In doing so, Appellant continually allowed all three children
to remain in conditions and surroundings that endangered both their physical
and emotional well-being, and also placed them with a person who engaged in
conduct that endangered both their physical and emotional well-being.
Appellant left all three children, including K.B. and P.B., with Phillip B. on
numerous occasions even though she knew that he had, during fits of anger,
kicked holes in the walls and doors. Appellant admitted that Phillip B.’s temper
frightened her to a degree that she feared for both herself and the children.
Appellant was also aware that Phillip B. had brought home a boat oar that she
believed he might be using to physically punish both O.L.A. and K.B. She even
testified that she had seen the boat oar’s transformation—from a boat oar to
a taped up paddle. There is evidence that blood stains were clearly on the boat
oar. She was aware of Phillip B.’s past conviction for injury to a child. She
also demonstrated a continual pattern of ignoring or failing to investigate
multiple injuries to O.L.A.—injuries that occurred while he was left with Phillip
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B.—despite the equally disturbing pattern that people outside the home quickly
recognized the injuries as signs of child abuse.
Furthermore, both psychologists and counselors alike testified that
Appellant repeatedly denied or failed to acknowledge that abuse was occurring
in her home. Even when she did admit that Phillip B. had physically abused
O.L.A., she stated she was “shocked” to learn it was occurring. Both
psychologists and counselors testified that this pattern of denial is Appellant’s
proclivity and created a dangerous environment to all three children’s physical
and emotional well-being.
We have carefully reviewed the entire record. Looking at all the evidence
in the light most favorable to the jury’s finding, giving due consideration to
evidence that the fact finder could reasonably have found to be clear and
convincing, we hold that a reasonable trier of fact could have formed a firm
belief or conviction that Appellant knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered their physical
or emotional well-being, and that she engaged in conduct or knowingly placed
the children with persons who engaged in conduct that endangered the
children’s physical or emotional well-being.
Further, in light of the entire record, we hold that there is no evidence so
significant that a fact-finder could not reasonably have formed a firm belief or
15
conviction that Appellant knowingly placed or knowingly allowed the children
to remain in conditions or surroundings that endangered their physical or
emotional well-being and that she engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the children’s
physical or emotional well-being. In sum, we hold there is legally and factually
sufficient evidence to support the jury’s verdict. We overrule this part of
Appellant’s first point.
3. Court Ordered Service Plan
In the remaining part of her first point Appellant challenges the legal and
factual sufficiency of the evidence supporting the jury’s finding that Appellant
failed to comply with the provisions of a court order that specifically established
the actions necessary for Appellant to be reunited with K.B. and P.B. See T EX.
F AM. C ODE A NN. § 161.001(1)(O).
When determining the sufficiency of the evidence in parental termination
cases, our inquiry is simply whether, on the entire record, a fact-finder could
reasonably form a firm conviction or belief that the parent violated one of the
conduct provisions of section 161.001(1) and that the termination of the
parent’s parental rights would be in the best interest of the child. C.H., 89
S.W.3d at 28; S.B., 207 S.W.3d at 885.
16
Because Appellant has not challenged whether the sufficiency of the
evidence would be in K.B. and P.B.’s best interests and because we hold that
a reasonable fact-finder could have formed a firm belief or conviction that
Appellant’s parental rights should be terminated under Texas Family Code
sections 161.001(1)(D) and (E), we need not address whether the evidence also
supports termination under section (O).
B. Effective Assistance of Counsel
In her second point, Appellant complains that she was denied effective
assistance of counsel because her trial lawyer failed to preserve her legal and
factual sufficiency points for appeal. Appellant further complains she was
denied effective assistance of counsel because her trial lawyer withdrew from
the case prior to any meaningful and necessary post-judgment procedural
protections or relief.
In Texas, indigent parents such as Appellant have a statutory right to
effective assistance of counsel in involuntary parental rights termination cases.
T EX. F AM. C ODE A NN. § § 107.013(a)(1), 263.405(e) (Vernon Supp. 2007); In
re M.S., 115 S.W.3d 534, 544 (Tex. 2003). To establish ineffective
assistance, Appellant must first show that counsel’s performance was deficient.
M.S., 115 S.W.3d at 545. Second, Appellant must show that the deficient
performance prejudiced her case. Id.
17
The gist of Appellant’s complaint is that trial counsel withdrew from
representation the day after the trial court entered its final order, and he was
the only one who could be sufficiently specific in a statement of points or other
post-trial motion to effectively preserve error for appeal as to the legal and
factual sufficiency of the evidence. The assumption on which her complaint is
based is that the statement of points that her appellate counsel filed was
deficient to preserve error as to legal and factual sufficiency of the evidence.
The State concedes that the statement of points that appellate counsel
filed did timely and properly preserve error as to the legal and factual
sufficiency of evidence as to each of the jury’s findings. We have thus
addressed those issues on the merits in light of the entire record. Moreover,
even if we determined that trial counsel’s performance was deficient in
withdrawing without preparing and filing a timely statement of points with
sufficient specificity, Appellant has not set forth any additional facts, reasons,
or arguments not made by appellate counsel that only her trial counsel could
have made. Therefore, she cannot demonstrate that any deficient performance
of trial counsel in withdrawing and not filing a statement of points prejudiced
her case. We overrule her second issue.
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C. Due Process and Section 263.405(i) of the Texas Family Code
In her third and fourth points Appellant complains that her due process
rights were violated because section 263.405(i) of the family code bars this
court from considering any issues not specifically presented to the trial court
in a timely filed statement of points. Further, Appellant complains that such a
procedure arises to the level of fundamental error and can be raised for the first
time on appeal.
Because a timely statement of points was filed listing the issues raised on
appeal, we need not consider these points.
IV. Conclusion
Having overruled Appellant’s first point in part and declined to address her
first point in part, having overruled Appellant’s second point, and having not
addressed Appellant’s third and fourth points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL B: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: March 13, 2008
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