in the Interest of A.C., a Child

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00129-CV
___________________________
IN THE INTEREST OF A.C., A CHILD
On Appeal from County Court at Law No. 1
Parker County, Texas
Trial Court No. CIV-17-0037
Before Sudderth, C.J.; Meier and Birdwell, JJ.
Memorandum Opinion by Justice Meier
MEMORANDUM OPINION
Appellants A.L.C. (Mother) and A.S.S. (Father) appeal a final order terminating
their parental rights to their child A.C. Mother raises seven issues. Father raises two.
We will affirm.
I. BACKGROUND
Mother and Father married in November 2014. At the time of the February
2018 final trial, Mother was thirty-nine years old and Father was fifty-seven years old.1
Born in January 2016, A.C. was two years old at the time of trial. Mother and Father
lived together on several occasions but were separated at the time of trial.2
On July 1, 2016, when A.C. was five-and-one-half-months old, Appellee Texas
Department of Family and Protective Services (TDFPS) visited Mother’s residence to
investigate concerns that Mother was co-sleeping with A.C. after drinking excessively
and was driving while under the influence with A.C. in the car. Mother admitted to
co-sleeping with A.C. while under the influence and made a number of statements
that confirmed TDFPS’s concerns about her mental health. TDFPS concluded that
1
Father has been married four times and has five adult children.
2
Father sued Mother for divorce in Hood County in December 2016. As
explained below, the cause was later transferred to Parker County, where this
termination action was filed.
2
Mother’s residence was not a safe environment for A.C., and Mother voluntarily
placed A.C. with S.S., Mother’s great-aunt.3
Mother and Father agreed to work services through Family Based Safety
Services (FBSS), but in January 2017, TDFPS filed its original petition for protection
of A.C., for conservatorship, and for termination of the parent-child relationship due
to lingering concerns about Mother’s mental health and both parents’ failure to follow
service-plan recommendations. TDFPS again prepared service plans for Mother and
Father, but they were not successfully completed.
After a lengthy jury trial, the trial court signed a final order on the jury’s verdict
terminating Mother’s and Father’s parental rights to A.C., finding by clear and
convincing evidence as to both parents that termination was (i) appropriate under
subsections (D), (E), and (O) of family code section 161.001(b)(1) and under family
code section 161.003 and (ii) in the child’s best interest. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E), (O), (b)(2), 161.003 (West Supp. 2018).
II. JURISDICTION
In her first issue, Mother argues that the trial court lacked jurisdiction to enter
the final termination order. Mother’s argument is premised upon the misconception
that family code section 103.001 is jurisdictional.
3
This was TDFPS’s second investigation involving A.C. The first occurred
when, against medical advice, Mother took newborn A.C. to a different hospital
because Mother did not think that A.C. was receiving appropriate treatment.
3
Entitled “Venue for Original Suit,” family code section 103.001 provides that
“an original suit shall be filed in the county where the child resides, unless”
“(1) another court has continuing exclusive jurisdiction under Chapter 155” or
“(2) venue is fixed in a suit for dissolution of a marriage under Subchapter D, Chapter
6.” Id. § 103.001(a)(1), (2) (West Supp. 2018) (footnote deleted). Referencing both
section 103.001’s general provision and its subsection (2), Mother argues that the trial
court lacked jurisdiction because when the Department filed its original petition in
Parker County, A.C. resided in Comanche County and Father had a pending divorce
action in Hood County. But “[s]ection 103.001 is not jurisdictional”—it “is a venue
statute that determines the proper county to bring a suit affecting the parent-child
relationship.” Gutierrez v. Gutierrez, No. 05-14-00803-CV, 2016 WL 1242193, at *1
(Tex. App.—Dallas Mar. 30, 2016, no pet.) (mem. op.); see Tex. Fam. Code Ann.
§ 103.002 (West 2014) (providing that suit shall be transferred on timely motion if
brought in improper county). Jurisdiction and venue are not synonymous. Subject-
matter jurisdiction refers to the court’s power to hear a particular type of suit, while
venue pertains to where—or in which county—a suit may be brought. Scott v.
Gallagher, 209 S.W.3d 262, 264 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(“Because it may be waived, venue is not ‘jurisdictional.’”). Contrary to Mother’s
argument, family code chapter 103 does not govern the jurisdictional inquiry; chapters
152 and 155 do.
4
A trial court may acquire continuing, exclusive jurisdiction over the parties and
subject matter of a suit affecting the parent-child relationship. See Tex. Fam. Code
Ann. § 155.001 (West Supp. 2018). During the existence of this continuing, exclusive
jurisdiction, “no other court of this state has jurisdiction of a suit with regard to that
child except as provided by [Chapters 155 and 262 of the family code].” Id.
§ 155.001(c); In re G.R.M., 45 S.W.3d 764, 766‒67 (Tex. App.—Fort Worth 2001, no
pet.). But a trial court acquires continuing, exclusive jurisdiction only “on the
rendition of a final order.” Tex. Fam. Code Ann. § 155.001(a). When no court has
continuing, exclusive jurisdiction, “a court of this state has jurisdiction to make an
initial child custody determination” if “this state is the home state of the child on the
date of the commencement of the proceeding.” Id. § 152.201(a)(1) (West 2014).
Here, no final order was entered in the Hood County lawsuit, nor was a final
order ever entered in a suit affecting the parent-child relationship filed by the
Attorney General in Erath County in May 2016. Thus, no court had continuing,
exclusive jurisdiction, and the Parker County Court at Law, which is obviously located
in Texas, had jurisdiction over the Department’s lawsuit upon its filing. See id.
To the extent that Mother’s argument can liberally be construed to also
challenge venue as it is correctly understood, although venue was originally proper in
Hood County, see id. § 103.001(a)(2), on Father’s motion, the Hood County Court at
Law transferred the divorce action to Parker County (where Mother resides) four days
5
after the Department filed its original petition there.4 Venue was thus proper in
Parker County. See id. We overrule Mother’s first issue.
III. ENDANGERMENT AND BEST INTEREST FINDINGS
Mother argues in her second issue and Father argues in his first issue that the
evidence is both legally and factually insufficient to support each of the jury’s
termination findings. We limit our analysis to the subsection 161.001(b)(1)(D) and
(E) and best interest findings. See In re J.G.S., 550 S.W.3d 698, 703 (Tex. App.—
El Paso 2018, no pet.) (stating that only one predicate finding under section
161.001(b)(1) is necessary when there is also an affirmative best interest finding).
A. Burden of proof and standard of review
For a trial court to terminate a parent-child relationship, the party seeking
termination 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. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 384
S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is
clear and convincing if 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.” Tex. Fam.
Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 802.
4
Also, the Erath County district court transferred the Attorney General’s suit to
Parker County six days after the Department filed its petition.
6
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 TDFPS proved the challenged ground for termination. In re
J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most
favorable to the finding and judgment. Id. We resolve any disputed facts in favor of
the finding if a reasonable factfinder could have done so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved. Id. We consider
undisputed evidence even if it is contrary to the finding. Id. That is, we consider
evidence favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. See id.
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. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). 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. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). We determine whether, on the entire record, a factfinder could
reasonably form a firm conviction or belief that the parent violated subsections (D)
and (E) of section 161.001(b)(1) and that termination of the parent-child relationship
would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re
C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding is
7
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.
H.R.M., 209 S.W.3d at 108.
B. Subsection 161.001(b)(1)(D) and (E)
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. Tex. Fam. Code Ann. § 161.001(b)(1)(D).
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, 632 (Tex. App.—
Fort Worth 2000, pet. denied). A child is endangered when the environment creates a
potential for danger that the parent is aware of but consciously disregards. See In re
S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
The trial court may also order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has engaged in conduct, or
knowingly placed the child with persons who engaged in conduct, that endangers the
physical or emotional well-being of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1)(E). 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.
8
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Termination under subsection (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. Id. Subsection (E) does not require that conduct be directed at a child or
that the child actually suffers injury; rather, the specific danger to the child’s well-
being may be inferred from the parent’s misconduct alone. Tex. Dep’t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Endangerment—meaning to expose to loss or injury, to jeopardize—can take
many forms. J.T.G., 121 S.W.3d at 125–26. Although mental illness alone is not a
ground for terminating the parent-child relationship, untreated mental illness can
expose a child to endangerment. S.R., 452 S.W.3d at 363. Excessive alcohol
consumption is relevant in determining whether a parent engaged in endangering
conduct. In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.). Parental
illegal drug use supports a conclusion that the child’s surroundings endanger his
physical or emotional well-being. J.T.G., 121 S.W.3d at 125. Domestic violence may
be considered evidence of endangerment. S.R., 452 S.W.3d at 361. Criminal conduct
is relevant to a review of whether a parent has engaged in a course of conduct that
endangered the well-being of the child. A.S. v. Tex. Dep’t of Family & Protective Servs.,
394 S.W.3d 703, 712‒13 (Tex. App.—El Paso 2012, no pet.). A parent’s failure to
complete a service plan may be considered as part of an endangerment analysis under
subsection 161.001(b)(1)(E). In re P.H., 544 S.W.3d 850, 858 (Tex. App.—El Paso
9
2017, no pet.). And a factfinder may permissibly infer from past conduct endangering
the well-being of the child that similar conduct will recur if the child is returned to the
parent. In re A.N.D., No. 02-12-00394-CV, 2013 WL 362753, at *2 (Tex. App.—Fort
Worth Jan. 31, 2013, no pet.) (mem. op.).
Because the evidence pertaining to subsections 161.001(b)(1)(D) and (E) is
interrelated, we conduct a consolidated review. See J.T.G., 121 S.W.3d at 126.
C. Mother’s Endangerment Finding
1. Mental Health
Both at trial and on appeal, Mother has repeatedly argued that TDFPS believes
that she is mentally ill—and should have her parental rights to A.C. terminated—
solely on account of her unconventional religious beliefs.5 But this trial theory was
impliedly rejected by the jury and mischaracterizes the evidence. Viewed objectively,
the record contains an abundance of evidence that TDFPS sought to terminate
Mother’s parental rights not on account of her religious beliefs but instead because
she suffers from untreated and unacknowledged mental health issues that endanger
A.C.’s physical or emotional well-being.
5
Among other things, Mother believes that “[w]hen you rapture to heaven,
either you have the mark of the beast and you will finish transforming into the goat or
the sheep. And then you will eat each other. That’s what the last supper is”; that
every egg she ovulated beginning at age thirteen that did not result in a live birth was
two miscarried children; that A.C. is the reincarnation of Cain and the placenta from
his birth is Abel; that Father is Satan; and that she is Daughter Zion. When
questioned about her religious beliefs and Facebook postings, Mother proclaimed,
“It’s freedom of speech. Freedom of press. Freedom of religion.”
10
Specifically, Mother was involuntarily committed to North Texas State Hospital
(NTSH) for eight days in 2010. She had been smoking methamphetamine, and she
broke a van’s window with a horseshoe and commented that she thought people were
cutting off heads. NTSH diagnosed Mother as bipolar with psychotic features and
prescribed her medication, which Mother took while she was admitted but not after
being discharged. At trial, Mother claimed that NTSH had only “evaluated” her but
had never “admitted” her. She claimed that nothing was wrong with her, that she had
been misdiagnosed as bipolar, and that she was not currently bipolar. Dr. Parnell
Ryan, a psychologist who evaluated Mother, opined that bipolar disorder is never
completely cured. He also opined that a person can be very spiritual and still have
psychosis.
Mother testified that FEMA has 800 concentration camps located across the
United States (including one in Fort Worth) that it uses for homeless people; that
FEMA has 500,000 coffins, 120,000 shackles, and over 30,000 guillotines “to chop
people’s heads off with”; and that martial law will be going into effect at some point.
Dr. Donald Lane, a licensed marriage and family therapist who worked with Mother,
testified that she never exhibited any symptoms of bipolar disorder when he was
working with her, but he admitted that Mother had not told him any of her opinions
involving FEMA and that if she had, her statements “definitely could have had some
influence on my opinion, as far as psychosis goes.” Similarly, Dr. Ryan diagnosed
Mother as having unspecified bipolar and related disorder in full remission, but he
11
conceded that had Mother disclosed her thoughts about concentration camps and
FEMA, then his diagnosis would have changed because “that’s a little bit out of reality
so there’s a form of psychosis.”
In 2016, Mother notified the Sheriff’s Office that she heard voices all the time,
that they threatened her, and that they told her that Father was cheating on her. On
the day that TDFPS removed A.C., Mother stated that there were spies, that she could
hear voices through her home’s vents, that A.C. had a twin who had been kidnapped
by the CIA, and that she sees a double named Jessie who stands behind her and wears
blue clothes. At a meeting following A.C.’s removal, Mother again claimed that she
had heard voices coming from the vents in the house. Mother thought the auditory
hallucinations were those of an organized crime group that had run her over with a
truck years earlier and were stalking her and seeking revenge against her because she
had reported insurance fraud. At one point during the case, Father said that Mother
was schizophrenic, bipolar, or both.
At some point, Mother removed all of the electric appliances from her home
because they were making a humming sound. Mother could not recall how many
times she had made police reports about “wire tapping and stuff,” but it was probably
“a lot.” And finally, Mother once claimed that she could communicate telepathically
with A.C.
12
Despite all of the above, Mother belligerently denied that she suffers from any
mental health illness and needs medication: “I don’t take medication . . . . I don’t
need medication. I’m not -- there’s nothing wrong with me.”
2. Alcohol and Illegal Drug Use
Mother has convictions for DWI and public intoxication, and S.S. testified that
Mother drank heavily and became intoxicated at annual Thanksgiving gatherings.
Father once said that “there’s been times where you could classify [Mother] as a binge
drinker.”
TDFPS initiated the underlying case to investigate concerns that Mother was
co-sleeping with A.C. after drinking excessively and was driving while under the
influence with A.C. in the car. Mother admitted to drinking five to six beers at a time
and to co-sleeping with A.C. after consuming alcohol.
Mother continued drinking and driving during the pendency of the case. Two
of Mother’s neighbors testified that she showed up at their homes intoxicated and
that a beer can fell out of her car when she opened the door. Just as she had denied
having any mental illness, at trial, Mother denied having any problem with alcohol.
During an MHMR assessment, Mother told a nurse that she had smoked
marijuana from age twelve to age twenty-three. Mother used methamphetamine
before being admitted to NTSH, and she has at least one conviction for possessing a
controlled substance.
13
3. Anger/Domestic Violence/Physical Altercations/Arrests
Mother has a history of domestic violence, physical altercations, and arrests.
While pregnant with A.C., Mother and Father got into a fight during which Father
strangled Mother, causing her injuries, and the glass on a cabinet door was broken.6
Mother has also been involved in a number of physical altercations with other
women, including her sister.7 Mother even had physical altercations with her own
mother while living with her. Mother has been arrested approximately fourteen times,
including for assault, possessing drugs, or some type of alcohol-related offense.
4. Service Plan
Conservatorship worker Samantha Perez testified that Mother did not
successfully complete her service plan. Mother was asked to complete an MHMR
assessment, among other things. Weatherford MHMR recommended medication
management and ongoing treatment for Mother, but at the time of trial, Mother was
not taking medication and had indicated “that she will not take medicine for bipolar.”
Perez reviewed notes from Dr. Lane and “felt like there wasn’t truthful discussions as
far as any assault charges or anger problems or anything about her mental health. I
felt like she . . . hasn’t ever thought that there was a problem.” Perez opined that
Father claimed that the altercation began when Mother shook an iron skillet at
6
him.
Mother testified that the fight with her sister caused Mother to miscarry.
7
14
Mother had not alleviated the risks to A.C. associated with Mother’s mental health
and domestic violence issues.
5. Holding
Viewing the evidence under the appropriate standards of review, the jury could
have formed a firm belief or conviction that Mother engaged in endangering conduct
and exposed A.C. to endangering conditions. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E); J.P.B., 180 S.W.3d at 573–74. The evidence is legally and
factually sufficient to support the jury’s affirmative termination finding based on
subsection 161.001(b)(1)(D) and (E). We overrule this part of Mother’s second issue.
D. Father’s Endangerment Finding
Father is bipolar, was diagnosed with depression, has experienced suicidal
ideations, and was once involuntarily committed to a state hospital for five days.
Unlike Mother, Father does not outright deny being bipolar, but he has taken his
medication inconsistently, telling CASA volunteer Shirly Baker only four months
before trial that he was not taking his medication.
Father has been arrested seven times, including for assault-bodily injury and for
DWI. Father was arrested for assault family violence by choking following the
incident with Mother while she was pregnant. Even though by Father’s own account
he “roughed up [Mother] pretty good”—Father told a police officer that he had
“choked [Mother] to the ground,” and the officer observed blood spatter and loose
strands of hair on the floor—Mother was ultimately uncooperative with authorities
15
and declined to prosecute. Father’s mother has observed Father drink excessively
since A.C. was born.
Father engaged in endangering conduct with A.C. during the pendency of the
case that concerned both TDFPS and S.S. S.S. recalled one incident in which Father
returned A.C. after a visit, and A.C.—looking fearful and pointing to his head—said
“dada hit head.” S.S., who thought that Father had intentionally struck A.C., took
A.C. to the emergency room. On another occasion, A.C.’s clothes were wet when
Father returned him after a visit on a cold day. Father had taken A.C. to the lake and
let him walk around in the water, something that S.S. thought was inappropriate to do
on a fifty-degree day. At another return, Father was driving with A.C. on his lap.8
S.S. testified that she would be concerned for A.C.’s safety if Father’s parental rights
were not terminated.
Sometime around late June 2017, Father indicated that he wanted to relinquish
his parental rights to A.C. Father “felt like he wasn’t stable enough to care for
[A.C.],” the cost of his medication was increasing, his mother was kicking him out of
her house, and “he just wasn’t in a place to raise a child.” Perez first heard that Father
wanted to retain his parental rights when he testified at trial in February 2018.
Father’s vacillating between wanting to relinquish his rights and wanting to retain
them concerned S.S.
8
Father claimed he only drove in the parking lot.
16
Significantly, TDFPS expressed concern that Father would not be protective of
A.C. if Mother’s parental rights were terminated but his were not. According to
counselor Rita Benson, Mother and Father argued constantly—Benson could not
separate the two when they argued during counseling—but would probably maintain a
relationship even after their marriage was dissolved despite the volatility.9 At an
earlier hearing, Father said that Mother was mentally unstable and would never be
able to care for A.C., but he changed his tune at trial and repeatedly qualified his prior
negative comments about Mother. Father left A.C. in Mother’s care despite harboring
serious concerns about her mental health.
Father has a history of moving from place to place, and at the time of trial,
concerns existed whether the house in which he was living and renovating was safe
for a two-year-old child.10 And like Mother, Father failed to successfully complete his
service plan. Perez expressed concern about “the overall safety of the child and the
mental health of both of the parents.”
Viewing the evidence under the appropriate standards of review, the jury could
have formed a firm belief or conviction that Father engaged in endangering conduct
and exposed A.C. to endangering conditions. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E); J.P.B., 180 S.W.3d at 573–74. The evidence is legally and
9
Father’s mother likened his relationship with Mother to oil and water.
10
Perez described the property as a construction site.
17
factually sufficient to support the jury’s affirmative termination finding based on
subsection 161.001(b)(1)(D) and (E). We overrule this part of Father’s first issue.
E. Best Interest Findings
We review the entire record to determine the child’s best interest. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). 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. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976); 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”); In re E.N.C., 384
S.W.3d 796, 807 (Tex. 2012). These factors are not exhaustive, and some listed
factors may be inapplicable to some cases. C.H., 89 S.W.3d at 27.
Regarding Mother, the evidence that supports the subsection (D) and (E)
findings—untreated severe mental illness, domestic violence, excessive alcohol use,
other erratic and concerning behavior, and incomplete service plan—is probative of
18
the best interest finding. See E.C.R., 402 S.W.3d at 250. Further, Mother is
unemployed, relies on disability for financial support, and lives in a house owned by
someone else.
As to Father, the evidence that supports the subsection (D) and (E) findings—
inconsistently treated mental illness, domestic violence, alcohol use, miscellaneous
concerning behavior, and incomplete service plan—is likewise probative of the best
interest finding. See Id. Father is also on disability for a mental-health issue—
although he periodically works in construction—and has a history of unstable
housing.
By contrast, S.S. lives on a family property, is employed as a substitute teacher,
can support A.C. financially, and wants to adopt him. Under S.S.’s care (since July 1,
2016), A.C. has “made a lot of progress, developmentally” and continues to grow and
to thrive. Several people opined that it is in A.C.’s best interest for Mother’s and
Father’s parental rights to be terminated.
Considering the relevant Holley factors, the jury could reasonably have formed a
firm belief or conviction that termination of both Mother’s and Father’s parental
rights to A.C. is in A.C.’s best interest. See J.P.B., 180 S.W.3d at 573; Holley, 544
S.W.2d at 371–72. The evidence is legally and factually sufficient to support the jury’s
best interest findings. We overrule the remainder of Mother’s second issue and the
remainder of Father’s first issue. We need not reach any of their other arguments in
those issues. See Tex. R. App. P. 47.1.
19
IV. REMAINING ISSUES
A. Religious Freedom and Constitutionality of Section 161.003
In her interrelated third and fourth issues, Mother argues (i) that TDPFS
violated her right to religious freedom by “t[aking] away her baby based on [her]
religious beliefs” and (ii) that family code section 161.003 is unconstitutional as
applied to her “because [her] religious beliefs were used against her as a mental
illness.” However, as we thoroughly explained above, the record objectively
demonstrates that TDFPS did not remove A.C. or seek to terminate Mother’s
parental rights on account of her religious beliefs but because she had engaged in
endangering conduct and exposed A.C. to endangering conditions unrelated to her
religion. Insofar as TDFPS elicited testimony of Mother’s religious beliefs during
trial, context reveals that TDFPS did so to show that Mother’s beliefs were potentially
harmful to A.C.11 See Maltos v. Tex. Dep’t of Protective & Regulatory Servs., 937 S.W.2d
560, 564 (Tex. App.—San Antonio 1996, no writ) (approving jury instruction that “[a]
parent’s religious beliefs, teachings, and practice, in and of themselves, are not
grounds for terminating the parental rights of the parents to the child, unless the
11
Mother testified, “I hate this planet. I want to go back to where we belong
and that’s heaven, okay, where things are perfect and we don’t have to put up with
Satanized people and crap like that. . . . So if I had to marry a man in order to have
that child in order to end it, then that’s what I did.” Asked how her religious beliefs
would affect her raising A.C., Mother denied that it would affect A.C. but also that “if
he has another God besides the God, it will cost him his life.” Mother later explained
that A.C. was in no real harm, but the jury could have disbelieved her testimony.
20
teachings and practices of the beliefs are illegal, immoral, or demonstrably harmful to the child”)
(emphasis added)).
As for Mother’s constitutional challenge to section 161.003, not only can we
locate no such objection at trial, see Tex. R. App. P. 33.1(a), but the issue is moot
because we concluded that legally and factually sufficient evidence supported the
jury’s termination findings based on subsections 161.001(b)(1) (D) and (E), not on
section 161.003. We overrule Mother’s third and fourth issues.
B. Expert Witness Disclosures
In her fifth issue, Mother argues that the trial court abused its discretion by
permitting counselor Rita Benson and police officer Dustin Paulsen to testify because
instead of fully disclosing their opinions at least ninety days before trial, TDFPS only
partially disclosed their opinions eighty-four days before trial. See Tex. R. Civ. P.
194.2(f) (providing that party may request disclosure of, among other things, the
subject matter on which the expert will testify and the general substance of an expert’s
mental impressions and opinions), 195.2(a) (requiring information to be furnished
under rule 194.2(f) ninety days before discovery’s end).
A party who fails to make, amend, or supplement a discovery response in a
timely manner may not introduce in evidence the material or information that was not
timely disclosed, unless the court finds that (1) there was good cause for the failure to
timely disclose or (2) the failure will not unfairly surprise or prejudice the other
parties. Tex. R. Civ. P. 193.6(a). “The salutatory purpose of [this rule] is to require
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complete responses to discovery so as to promote responsible assessment of
settlement and prevent trial by ambush.” Alvarado v. Farah Mfg. Co., 830 S.W.2d 911,
914 (Tex. 1992) (op. on reh’g) (applying predecessor rule). A finding of good cause or
the lack of unfair surprise or unfair prejudice must be supported by the record. Tex.
R. Civ. P. 193.6(b). We review a trial court’s decision to admit or exclude evidence for
an abuse of discretion. J.P.B., 180 S.W.3d at 575.
The trial court ruled that TDFPS’s witnesses could testify after clarifying that
the disclosures were, at most, six days late (or eighty-four days before trial) and after
TDFPS’s counsel explained that Mother knew what the witness would testify about.
On this record, the trial court could have reasonably concluded that TDFPS met its
burden to show that Mother sustained no unfair surprise or prejudice. See Tex. R.
Civ. P. 193.6(a)(2), (b); Spurck v. Tex. Dep’t of Family & Protective Servs., 396 S.W.3d 205,
214‒17 (Tex. App.—Austin 2013, no pet.) (observing that trial court could have
implicitly made rule 193.6(a) findings based on record). And in any event, any error in
permitting the witnesses to testify was harmless because their testimony was largely
cumulative of other evidence admitted at trial. See Owens-Corning Fiberglas Corp. v.
Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d
35 (Tex. 1998). We overrule Mother’s fifth issue.
C. Ineffective Assistance
Mother argues in her sixth issue that her trial counsel was ineffective for failing
to seek relief under the Texas Religious Freedom Restoration Act and for failing to
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assert a violation of her right to religious freedom under both the First Amendment
and article I, section 6 of the Texas constitution. See U.S. Const. amend. I; Tex.
Const. art I, § 6; Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001‒.012 (West 2011).
To establish ineffective assistance of counsel, an appellant must show by a
preponderance of the evidence that her counsel’s representation was deficient and
that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.
2013). The prejudice prong requires a showing that counsel’s errors were so serious
that they deprived the defendant of a fair trial, i.e., a trial with a reliable result.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must show
there is a reasonable probability that, without the deficient performance, the result of
the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068; Nava, 415
S.W.3d at 308.
Mother is incapable of making a showing of prejudice because, regardless of
any objection premised upon religious freedom, sufficient evidence otherwise
supports the jury’s subsections 161.001(b)(1) (D) and (E) and best interest findings.
We overrule Mother’s sixth issue.
D. Pretrial Mediation
In Mother’s seventh issue and in Father’s second issue, they argue that the trial
court erred by failing to abide by the local rules and send the case to mediation before
trial. Local rule 3.2 provides in relevant part that “[e]xcept for good cause shown,
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mediation shall be completed prior to the pre-trial conference or, at the latest, prior to
trial.” Parker County District Courts and County Courts at Law Loc. R. 3.2. The
same trial judge who presided over the trial also presided over numerous pretrial
hearings in this cause. Familiar with the parties and the nature of the disputed issues,
the trial court could have reasonably concluded that good cause existed to proceed to
trial without first ordering mediation. We overrule Mother’s seventh issue and
Father’s second issue.
V. CONCLUSION
Having overruled all of Mother’s and Father’s issues, we affirm the trial court’s
final order terminating Mother’s and Father’s parental rights to A.C.
/s/ Bill Meier
Bill Meier
Justice
Delivered: October 24, 2018
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