B. C. v. Texas Department of Family and Protective Services

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
B .C., §
No. 08-14-00150-CV
Appellant, §
Appeal from the
v. §
65th District Court
TEXAS DEPARTMENT OF FAMILY §
AND PROTECTIVE SERVICES, of El Paso County, Texas
§
Appellee. (TC# 2012DCM07071)
§
OPINION
B.C. appeals the termination of his parental rights with regard to his two children. Finding
no error, we affirm the trial court’s judgment.
FACTUAL SUMMARY
S.V. is the mother of three children and Appellant is the father of two of them, M.C. and
A.C. On February 19, 2011, the Department received an intake which alleged that the couple had
left the children alone in their apartment while they went to a bar around midnight to purchase
cocaine. Earlier, at approximately 1 a.m., law enforcement officers had arrested S.V. and B.C. for
possession of a controlled substance. S.V. informed police that she wanted to check on her
children since a friend was watching them. The police conducted a welfare check and the children
were found alone in the apartment with the door unlocked, sleeping together on a bed. The
parents were arrested for possession and child abandonment. This lawsuit ensued. After
considering evidence and witness testimony, the trial court terminated the parent-child relationship
between Appellant and his children.1
In Issue One, he challenges the legal and factual sufficiency of the evidence to support
termination and complains the Department failed to prove that he did not complete his service plan
or meet his child support requirements. Appellant also maintains the Department did not meet its
burden of demonstrating that termination is in the best interest of the children. In passing, he
mentions that his rights were not subject to termination because he was an “alleged father” rather
than a “parent”2 but B.C. testified that A.C. and M.C. are his children, and the trial court’s order of
termination identifies B.C. as the presumed father of those children. In Issue Two, Appellant
contends that his trial counsel provided ineffective assistance.
BURDEN OF PROOF AND STANDARD OF REVIEW
Involuntary termination of parental rights is a grave matter implicating fundamental
constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Because of the severity
and permanency of termination, as well as the elevated status of parental rights, the quantum of
proof required in a termination proceeding is elevated from the preponderance of the evidence to
clear and convincing evidence. See TEX.FAM.CODE ANN. § 161.001 (West 2014)(imposing
1
An interlocutory decree of termination was rendered by the trial court against S.V. S.V. has not appealed the trial
court’s judgment.
2
“Alleged father” means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic
father of a child, but whose paternity has not been determined. The term does not include a presumed father, a man
whose parental rights have been terminated or declared to not exist, or a male donor. TEX.FAM.CODE ANN. §
101.0015(a), (b)(West 2014). The term “Parent” includes a man presumed to be the father, a man legally determined
to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has
acknowledged his paternity under applicable law, or an adoptive father. TEX.FAM.CODE ANN. § 101.024(a)(West
2014). Except as provided by Section 101.024(b), the term does not include a parent as to whom the parent-child
relationship has been terminated. Id.
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heightened clear and convincing burden of proof in parental termination cases); Santosky v.
Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 1391, 71 L. Ed. 2d 599 (1982); In re B.L.D. and B.R.D.,
113 S.W.3d 340, 353–54 (Tex.2003)(because of the severity and permanency of termination, due
process requires party seeking to terminate parental rights prove necessary elements by the
heightened burden of proof of clear and convincing evidence).
In a proceeding to terminate parental rights, the petitioner must demonstrate by clear and
convincing evidence that: (1) the parent committed one or more of the acts specifically set forth
in Texas Family Code Section 161.001(1) as grounds for termination; and (2) that termination is in
the best interest of the child. See TEX.FAM.CODE ANN. § 161.001 (West 2014). “Clear and
convincing evidence” means 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.”
TEX.FAM.CODE ANN. § 101.007 (West 2014); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002);
see also In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)(contrasting the standards applied in
termination proceedings and the standards applied in modification proceedings). We strictly
scrutinize termination proceedings and construe any statutes authorizing involuntary termination
in favor of the parent. Holick, 685 S.W.2d at 20-21.
In conducting a legal sufficiency review in a termination case, we consider all of 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.” In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the fact
finder’s conclusions and presume the fact finder resolved any disputed facts in favor of its
findings, so long as a reasonable fact finder could do so. Id.; In re J.F.C., 96 S.W.3d at 266. We
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disregard any evidence that a reasonable fact finder could have disbelieved, or found to have been
incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C.,
96 S.W.3d at 266.
In conducting a factual sufficiency review in a termination case, we must give due
deference to the fact finder’s findings, and we cannot supplement such judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, “in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in favor of the
finding is so significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d at 108; In re
J.F.C., 96 S.W.3d at 266.
STATUTORY PREDICATE
Parental rights may be involuntarily terminated through proceedings brought under Section
161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001 (West 2014). Under
that provision, the Department was required to (1) establish one or more of the statutory acts or
omissions enumerated as grounds for termination, and (2) prove that termination is in the best
interest of the child. See id. Both elements must be established, and termination may not be
based solely on the best interest of the child as determined by the trier of fact. See Texas
Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The trial court found by clear and convincing evidence that Appellant had: (1) knowingly
placed or knowingly allowed the children to remain in conditions or surroundings which endanger
the physical or emotional well-being of the children under subsection 161.001(1)(D); (2) engaged
in conduct or knowingly placed the children with persons who engaged in conduct which
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endangers the physical or emotional well-being of the children under subsection 161.001(1)(E);
and (3) failed to support the children in accordance with the parent’s ability during a period of one
year ending within six months of the date of the filing of the petition under subsection
161.001(1)(F). TEX.FAM.CODE ANN. § 161.001(1)(D), (E), (F)(West 2014). The trial court also
determined that Appellant had been convicted, placed on community supervision, or adjudicated
for abandoning or endangering a child under Section 22.041 of the Texas Penal Code, which is a
basis for termination under subsection 161.001(1)(L)(x). TEX.FAM.CODE ANN. §
161.001(1)(L)(x)(West 2014); TEX.PENAL CODE ANN. § 22.041(West 2011). By clear and
convincing evidence, the trial court found that termination was in the best interest of the children.
Only one predicate finding under Section 161.001(1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best interest. In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003); Perez v. Texas Dept. of Protective & Regulatory Services, 148
S.W.3d 427, 433-34 (Tex. App. – El Paso 2004, no pet.). Evidence established that Appellant had
pled guilty to child abandonment, a criminal offense for which he was placed on four years’
deferred-adjudication probation. TEX.PENAL CODE ANN. § 22.041 (West 2011). In two counts,
the indictment alleged that he “did then and there having custody, care and control of [M.C./Count
1 and A.C/Count II], a child younger than 15 years, did then and there intentionally, with the intent
to return, abandon [M.C./Count 1 and A.C./Count II] in a place, to-wit: a residence, without
providing reasonable and necessary care for the child, under circumstances which no reasonable,
similarly situated adult would leave a child of that age and under circumstances that exposed
[M.C./Count 1 and A.C./Count II] to unreasonable risk of harm[.]” This evidence standing alone
is sufficient to support the trial court’s finding that Appellant knowingly placed or allowed the
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children to remain in conditions or surroundings which endangered their physical or emotional
well-being under subsection 161.001(1)(D). TEX.FAM.CODE ANN. § 161.001(1)(D)(West 2014).
Because our review of the record demonstrates that one or more of the trial court’s
predicate findings under Section 161.001 is supported by legally and factually sufficient evidence
and supports the trial court’s order of termination, we proceed to consider Appellant’s best interest
complaint. See In re A.V., 113 S.W.3d at 362; Perez, 148 S.W.3d at 433-34.
BEST INTEREST OF THE CHILDREN
Appellant first contends termination is not in his best interest. However, a determination
of best interest necessitates a focus on the child, not the parent. See In re R.F., 115 S.W.3d 804,
812 (Tex.App. – Dallas 2003, no pet.). We therefore restrict our consideration to the trial court’s
determination that termination is in the children’s best interest.
There is a strong presumption that a child’s best interests are served by maintaining the
parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.App. – Houston [1st Dist.] 2003,
no pet.). Termination of the parent-child relationship is not justified when the evidence shows
merely that a parent’s failure to provide a more desirable degree of care and support of the child is
due solely to misfortune or the lack of intelligence or training, and not to indifference or malice.
Clark v. Dearen, 715 S.W.2d 364, 367 (Tex.App. – Houston [1st Dist.] 1986, no writ).
The Texas Supreme Court has identified nine non-exhaustive factors that are relevant in
determining whether termination of parental rights is in the best interest of the child. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include: (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 parenting abilities of the parties
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seeking custody; (5) the programs available to assist the parties seeking custody; (6) the plans for
the child by the parties seeking custody; (7) the stability of the home or proposed placement; (8)
the acts or omission committed by the parent which may indicate the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or omissions committed by the
parent. Holley, 544 S.W.2d at 371-72. The determination of a child’s best interest does not
require proof of any unique set of factors, and it does not limit proof to any specific factors. Id.
Permanence has also long been considered of paramount importance in considering a child’s
present and future needs. See Dupree v. Texas Department of Protective & Regulatory Services,
907 S.W.2d 81, 87 (Tex.App. – Dallas 1995, no pet.). The same evidence of acts or omissions
used to establish grounds for termination under Section 161.001(1) may be probative in
determining whether termination of parental rights is in the best interest of the child. In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002); In re L.M., 104 S.W.3d at 647.
Appellant’s children were removed from their home due to abuse and neglect. In addition
to Appellant’s child abandonment conviction, the trial court considered evidence regarding
additional convictions, including conspiracy to import a controlled substance; possession of a
controlled substance; driving under the influence; and resisting, evading, or obstructing an officer
in the course of arrest. Evidence was also presented that Appellant was arrested for domestic
violence against S.V., which was shown to have not resulted in a criminal charge. During the
final hearing, Appellant agreed that he put the children at risk and exposed them to an unsafe
environment in which S.V. was using drugs and he allowed the children to remain in that
environment. Appellant also acknowledged that throughout the “year and a half” that the children
were either in foster care or in the care of their grandmother, he had been drinking and using drugs,
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that he had not changed his lifestyle or behavior during that time, but was now attempting to do so.
However, approximately three months prior to the final hearing, Appellant was arrested for a
second driving while intoxicated charge to which he pled guilty. Appellant admitted that he
continued to drink alcohol while he was supposed to be participating in services under the
Department’s service plan and conceded that he had used cocaine four months prior to the hearing.
A caseworker testified at trial that Appellant had signed the temporary order directing him
to comply with the Department’s service plan and Appellant understood that he was required to
complete the service plan in order to have his children returned to him. Appellant did not comply
with the plan at the outset due to the existence of an outstanding warrant. He did not want to turn
himself in to authorities and he remained out of state.
The April 2013 service plan contains notations that Appellant failed to provide a valid
address, had not visited his children in several months, and “hardly calls to see how they are
doing.” The July 2013 service plan reveals that Appellant “has not been part of his children’s
lives and has moved away to Oklahoma City . . . because he has criminal charges pending.” In
response, Appellant cited his confinement in jail as a basis for his inability to comply with the
service plan but admitted that he had only been jailed for three months, had attempted compliance
for only six to eight months, and had been hiding from child protective services. He also admitted
that he violated service plan restrictions regarding his consumption of drugs and alcohol, and had
irregular visits with his children. He further agreed that he had been ordered to pay $25 per month
in child support but contended that he did not make any payments because he never received a
letter from “child support.” A September 2011 motion for enforcement alleged he owed more
than $8,000 in child support and more than $900 in medical support.
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Appellant claimed he did not want to lose his rights to see his children and hoped that they
would be placed with someone he knows. When asked if he had a home for the children, he
responded that he could take them to his grandfather’s house or to a trailer that his boss agreed to
lend him. But the home study for Appellant’s grandfather had not been approved due to safety
concerns. Appellant had previously suggested a family member for placement of Appellant’s two
children and the home study for that family was positive. But the family did not want to accept all
three of S.V.’s children. The two older siblings had informed her that they did not want to be
separated and had expressed that they would rather live in an unrelated foster home “for the rest of
their lives as long as they [would not be] separated.” The caseworker believed that it is in the
children’s best interest that they remain together, and the children were not placed with the family
member as Appellant had requested.
The caseworker then testified that all three children had been placed together in the same
foster home, were doing well in school, had not been ill, had no behavioral issues, are “very
bonded” to each other, and in a safe, loving environment. She also noted that the foster mother
had consistently met the medical and therapeutic needs of the children. Believing that the
Department had used reasonable efforts to attempt reunification of Appellant with his children, the
caseworker opined that the Department’s permanency plan of unrelated adoption for all three
children was in their best interest as Appellant had failed to demonstrate an ability and a
willingness to take his children and had failed to demonstrate his ability to provide a safe
environment for them.
When all of the evidence is considered, whether in the light most favorable to the judgment
or in a neutral light, we conclude that the evidence is such that a reasonable trier of fact could have
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formed a firm belief or conviction that termination was in the children’s best interest. See In re
H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266. Consequently, the evidence was
legally and factually sufficient to establish the best interest requirement of Section 161.001. See
TEX.FAM.CODE ANN. § 161.001(2)(West 2014). We overrule Issue One in its entirety.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Issue Two, Appellant contends his “right to a fair trial for termination of his parental
rights was affected by ineffective assistance of counsel.”
Standard of Review
The statutory right to counsel in parental-rights termination cases includes a guarantee that
counsel will perform effectively. In re B.G., 317 S.W.3d 250, 253-54 (Tex. 2010). In parental
termination cases, the Texas Supreme Court has adopted the Strickland test that establishes the
standards for effective assistance in criminal cases. See In re M.S., 115 S.W.3d 534, 545 (Tex.
2003)(citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
“Under the well-established Strickland test, proving ineffective assistance of counsel requires a
showing that (1) counsel made errors so serious that counsel was not functioning as ‘counsel’
guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense,
which ‘requires showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.’” In re H.R.M., 209 S.W.3d at 111 (quoting M.S., 115 S.W.3d
at 545). If the Strickland test is not met, an appellant’s ineffective assistance of counsel claim is
defeated. See In re M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 700, 104 S.Ct. at
2071.
Under the first prong, trial counsel’s performance must be shown to have fallen below an
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objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. Trial
counsel’s conduct constitutes ineffective assistance only if the challenged conduct is so outrageous
that no competent attorney would have engaged in it. See In re M.S., 115 S.W.3d at 545. Under
the second prong, an appellant must establish that there is a reasonable probability that but for his
attorney’s deficient performance, the outcome of his case would have been different. See
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. “Reasonable probability” is that which is
“sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.
2068.
In evaluating trial counsel’s performance, we must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable, professional assistance and was
motivated by sound trial strategy. In re M.S., 115 S.W.3d at 545. An appellant bears the burden
to overcome the presumption that, under the circumstances, the challenged conduct might be
considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. When the record
is silent concerning the reasons for trial counsel’s actions, we do not engage in speculation to find
ineffective assistance of counsel. In re L.C.W., 411 S.W.3d 116, 127 (Tex. App. – El Paso 2013,
no pet.).
Evidentiary Complaints
Appellant specifically complains of counsel’s failure to object to: (1) the accusation that
Appellant, rather than S.V., possessed drugs; (2) questions regarding Appellant’s conduct for
which he had been arrested when the charges had been dismissed or Appellant had been found not
guilty; (3) the tender of Appellant’s written relinquishment of his parental rights to the children’s
maternal grandmother when the Department later determined such placement was unsafe; (4) the
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allegedly improper tender of Appellant’s police records under Texas Rule of Evidence 803(6)
“without redacting the hearsay evidence contained inside;” and (5) the tender of inadmissible
evidence. Appellant further complains that counsel permitted him to testify about his past
criminal history in great detail and allowed the Department to “go into his criminal background on
inadmissible evidence.”
Appellant has not conducted a Strickland analysis with regard to the specific complaints as
set out in his brief or the facts as set out in the record. He provides no analysis regarding his Rule
803(6) complaint or any of his “failure to object” complaints, he fails to specifically identify the
evidence that he alleges was inadmissible, and he provides no analysis as to why the evidence was
inadmissible. He does claim that counsel sat idly by doing nothing as “clearly revealed in the
sparse transcript,” and contends that “[w]hen the trial court, sua sponte, took judicial notice of the
contents of [the Department’s file], trial counsel failed to object or to do anything to require that
[the Department] present properly admissible evidence to establish its allegation that Appellant
had endangered or constructively abandoned the child.” Appellant further contends that “[w]hen
counsel for [the Department] stated, without any authenticating testimony, ‘These are appellant’s
pills via EMS,’ trial counsel apparently could not articulate a proper objection[,]” and asserted that
“when given the opportunity to cross-examine the CASA, the only witness that represented the
Child presented at trial, trial counsel responded, ‘No questions judge.’”
The record does not support these assertions. It includes the testimony of four witnesses,
exceeds 600 pages of exhibits, and is not sparse. The trial court did not sua sponte take judicial
notice of the contents of the Department’s file. No witness ever testified about Appellant’s pills
or EMS. No CASA representative testified in the proceedings. We are directed to Texas
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Government Code Section 406.013 as well as Rules of Evidence 901(7) and 902(4), but Appellant
has not applied them to the facts of the case nor provided an analysis in relation to his ineffective
assistance. Moreover, Appellant pled guilty to the charge of child abandonment.
Appellant next proceeds to briefly discuss “constructive denial of counsel,” asserting that
prejudice need not be shown when it is established that counsel was not merely incompetent but
inert or counsel entirely failed to subject “the prosecution’s” case to meaningful adversarial
testing. Citing federal cases which we need not recite here, Appellant suggests that prejudice is
presumed “where defense counsel repeatedly slept in trial while evidence was being introduced
against the defendant[,] . . .” where a lawyer “never investigated the facts, never discussed the
applicable law, . . . and never advised him of the rights he would surrender by pleading guilty.”
Appellant fails to direct us to any portion of the record showing that counsel was “inert,”
failed to subject the Department’s case to meaningful adversarial testing, slept, failed to
investigate the facts of the case, or failed to discuss with Appellant the applicable law. To the
extent Appellant’s failure to object complaints are encompassed by his constructive denial of
counsel assertion, we disagree. The record demonstrates that counsel was well-engaged during
the proceedings. When the Department tendered Appellant’s criminal history information,
indictments, and judgments contained within Exhibits 51, 52, 53, and 56, counsel requested
additional time to review the documents before responding that he did not object to the exhibits.
Counsel’s cross-examination of witnesses focused on Appellant’s desire to keep his children or
have them placed with someone he knows. While agreeing that an exhibit containing police
records was admissible, counsel objected to its admission on the basis that the records contained
hearsay statements, but the trial court overruled the objection. Counsel raised the same objection
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regarding the offer of El Paso Sheriff Department records, which the trial court also overruled.
While acknowledging Appellant’s past during closing argument, counsel urged the trial court to
place Appellant’s children with the relative who had a positive home study and that it was not in
the children’s best interest to be adopted by non-family members as there was no assurance the
three children would stay together. The record is silent as to both counsel’s basis for not objecting
to the complained-of evidence and testimony and his trial strategy. See In re J.F.C., 96 S.W.3d at
284 (fact that counsel did not object to each and every question was within realm of reasonable
trial strategy in light of the record).
Because the record is silent concerning the reasons for trial counsel’s acts or omissions
during the final termination hearing, we will not speculate to find ineffective assistance of counsel.
In re L.C.W., 411 S.W.3d at 127. Despite the inaccuracies presented in Appellant’s brief, we have
thoroughly reviewed the record and conclude Appellant has failed to overcome the presumption
that, under the circumstances, counsel’s conduct fell within the wide range of reasonable,
professional assistance and might be considered sound trial strategy. See Strickland, 466 U.S. at
689, 104 S.Ct. at 2065; In re M.S., 115 S.W.3d at 545. He has also failed to show that counsel’s
conduct is so outrageous that no competent attorney would have engaged in it. See In re M.S., 115
S.W.3d at 545. Because Appellant has failed to satisfy the first Strickland prong, we overrule
Issue Two. The judgment of the trial court is affirmed.
ANN CRAWFORD McCLURE, Chief Justice
October 8, 2014
Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating
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