Probably the appellate opinion that will have received the most worldwide media attention of any handed down by the Third Court of Appeals in recent history was issued per curiam, i. e. unsigned. Click on "per curiam" below to read it.
In re Sara Steed, et al., No. 03-08-00235-CV (Tex.App.- Austin, May 22, 2008)(Per Curiam)
DFPS vs. FLDS - District judge ordered by appellate court to free the kids and return them to their parents
In re Sara Steed, et al., No. 03-08-00235-CV (Tex.App.- Austin, May 22, 2008) (unsigned per curiam opinion ) (mandamus relief granted - conditionally, as is customary) (temporary orders in TDFPS action against FLDS children and mothers vacated for lack of evidence supporting State's custody case) (Before Chief Justice Ken Law, Justices Bob Pemberton and Alan Waldrop) Appeal from 51st District Court of Schleicher County
Austin's Third Court of Appeals finds that the Department (Texas DFPS) "did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department. Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion."
Showing posts with label DFPS cases. Show all posts
Showing posts with label DFPS cases. Show all posts
Thursday, May 22, 2008
DFPS must give up custody of FLDS Children, court rules
Austin Court of Appeals orders children returned to parents for lack of evidence justifying state custody.
In re Louisa Bradshaw, et al. No. 03-08-00298-CV (Tex. App. - Austin, May 22, 2008) (Per Curiam) (Before Chief Justice Law, Justices Pemberton and Waldrop)
In re Louisa Bradshaw, et al.--Appeal from 51st District Court of Schleicher County
M E M O R A N D U M O P I N I O N
PER CURIAM
Relators Louisa Bradshaw, Gladys Mae Jessop, and Marie Steed seek mandamus relief to set aside a district court order granting the Texas Department of Family and Protective Services temporary sole managing conservatorship of Relators' children. This case presents the same dispositive issues as those in In re Steed, No. 03-08-00235-CV (Tex. App.--Austin May 22, 2008), decided today by this Court. The material facts in this proceeding are identical to those in In re Steed. Therefore, for the reasons stated in In re Steed, we conditionally grant Relators' Petition for Mandamus and direct the district court to vacate its temporary orders appointing the Department the temporary sole managing conservator of Relators' children based on the evidence adduced at the April 17-18, 2008, hearing. The writ will issue only if the district court fails to comply with this opinion.
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: May 22, 2008
In re Louisa Bradshaw, et al. No. 03-08-00298-CV (Tex. App. - Austin, May 22, 2008) (Per Curiam) (Before Chief Justice Law, Justices Pemberton and Waldrop)
In re Louisa Bradshaw, et al.--Appeal from 51st District Court of Schleicher County
M E M O R A N D U M O P I N I O N
PER CURIAM
Relators Louisa Bradshaw, Gladys Mae Jessop, and Marie Steed seek mandamus relief to set aside a district court order granting the Texas Department of Family and Protective Services temporary sole managing conservatorship of Relators' children. This case presents the same dispositive issues as those in In re Steed, No. 03-08-00235-CV (Tex. App.--Austin May 22, 2008), decided today by this Court. The material facts in this proceeding are identical to those in In re Steed. Therefore, for the reasons stated in In re Steed, we conditionally grant Relators' Petition for Mandamus and direct the district court to vacate its temporary orders appointing the Department the temporary sole managing conservator of Relators' children based on the evidence adduced at the April 17-18, 2008, hearing. The writ will issue only if the district court fails to comply with this opinion.
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: May 22, 2008
DFPS vs. FLDS - District judge ordered by appellate court to free the kids and return them to their parents
In re Sara Steed, et al., No. 03-08-00235-CV (Tex.App.- Austin, May 22, 2008) (unsigned per curiam opinion ) (mandamus relief granted - conditionally, as is customary) (temporary orders in TDFPS action against FLDS children and mothers vacated for lack of evidence supporting State's custody case) (Before Chief Justice Ken Law, Justices Bob Pemberton and Alan Waldrop) Appeal from 51st District Court of Schleicher County
Austin's Third Court of Appeals finds that the Department (Texas DFPS) "did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department. Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion."
In re Sara Steed, et al., No. 03-08-00235-CV (Tex.App.- Austin, May 22, 2008)(Per Curiam)
ORIGINAL PROCEEDING FROM SCHLEICHER COUNTY
MEMORANDUM OPINION PER CURIAM
This original mandamus proceeding involves the temporary custody of a number of children who were removed from their homes on an emergency basis from the Yearning For Zion ranch outside of Eldorado, Texas. (1) The ranch is associated with the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), and a number of families live there. Relators are thirty-eight women who were living at the ranch and had children taken into custody on an emergency basis by the Texas Department of Family and Protective Services based on allegations by the Department that there was immediate danger to the physical health or safety of the children.
Relators seek a writ of mandamus requiring the district court to vacate its temporary orders (2) in which it named the Department the temporary sole managing conservator of their children. (3) Relators complain that the Department failed to meet its burden under section 262.201 of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children's removal from their parents. Tex. Fam. Code Ann. § 262.201 (West Supp. 2007). Without such proof, Relators argue, the district court was required to return the children to their parents and abused its discretion by failing to do so.
Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved.
However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. See id. (4)
Section 262.201 further requires the Department, when it has taken children into custody on an emergency basis, to make a showing of specific circumstances that justify keeping the children in the Department's temporary custody pending full litigation of the question of permanent custody. Unless there is sufficient evidence to demonstrate the existence of each of the requirements of section 262.201(b), the court is required to return the children to the custody of their parents. Tex. Fam. Code Ann. § 262.201(b).
In this case, the Department relied on the following evidence with respect to the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:
•Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
•Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
•Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults;
•Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen; (5)
•The Department's lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
•All 468 children (6) were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
•Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents of the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.
In addition, the record demonstrates the following facts, which are undisputed by the Department:
•The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
•There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
•While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; (7)
•There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
•With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
•The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the five the Department has identified as being pregnant minors; and
•The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children."
The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. (8) The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." See id. § 262.201(d)(2).
The Department failed to carry its burden with respect to the requirements of section 262.201(b).
Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9)
The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child-rearing as soon as females reach puberty.
The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. (10)
There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy. Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, (11) there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community.
The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b). Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.
Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. (12) After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children. They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators.
We find that the Department did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department.
Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: May 22, 2008
1. The Department removed over 450 children from their homes on the Yearning For Zion ranch over the course of three days. This proceeding does not involve parents of all of the children removed.
2. The temporary orders reviewed in this proceeding were issued following the hearing held April 17-18, 2008, and were signed the week of April 21, 2008.
3. Because temporary orders in a suit affecting a parent-child relationship are not subject to interlocutory appeal under the family code, mandamus review is appropriate. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Vernor, 94 S.W.3d 201, 210 (Tex. App.--Austin 2002, orig. proceeding).
4. Section 262.201 provides, in relevant part, as follows:
(a) Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession and the temporary order, if any, has been dissolved, a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity.
(b) At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:
(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and
(3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.
. . . .
(d) In determining whether there is a continuing danger to the physical health or safety of the child, the court may consider whether the household to which the child would be returned includes a person who:
(1) has abused or neglected another child in a manner that caused serious injury to or the death of the other child; or
(2) has sexually abused another child.
Tex. Fam. Code Ann. § 262.201 (West Supp. 2007).
5. One woman is alleged to have become pregnant at the age of thirteen. She is now twenty-two years old.
6. This number has fluctuated. It will likely continue to fluctuate somewhat as disputes regarding the age of certain persons taken into custody are resolved.
7. Under Texas law, it is not sexual assault to have consensual sexual intercourse with a minor spouse to whom one is legally married. Tex. Penal Code Ann. § 22.011(a), (c)(1), (2) (West Supp. 2007). Texas law allows minors to marry--as young as age sixteen with parental consent and younger than sixteen if pursuant to court order. Tex. Fam. Code Ann. § 2.101 (West 2006), §§ 2.102-.103 (West Supp. 2007). A person may not be legally married to more than one person. Tex. Penal Code Ann. § 25.01 (West Supp. 2007).
8. The Department's position was stated succinctly by its lead investigator at the hearing. In response to an inquiry as to why the infants needed to be removed from their mothers, the investigator responded, "[W]hat I have found is that they're living under an umbrella of belief that having children at a young age is a blessing therefore any child in that environment would not be safe."
9. The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children--much as there are differences of opinion regarding the details of religious doctrine among other religious groups.
10. The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.
11. The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.
12. The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.
13. The children referred to are those children reflected on Appendix I to Relators' reply brief and who are still in the custody of the Department.
Austin's Third Court of Appeals finds that the Department (Texas DFPS) "did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department. Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion."
In re Sara Steed, et al., No. 03-08-00235-CV (Tex.App.- Austin, May 22, 2008)(Per Curiam)
ORIGINAL PROCEEDING FROM SCHLEICHER COUNTY
MEMORANDUM OPINION PER CURIAM
This original mandamus proceeding involves the temporary custody of a number of children who were removed from their homes on an emergency basis from the Yearning For Zion ranch outside of Eldorado, Texas. (1) The ranch is associated with the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), and a number of families live there. Relators are thirty-eight women who were living at the ranch and had children taken into custody on an emergency basis by the Texas Department of Family and Protective Services based on allegations by the Department that there was immediate danger to the physical health or safety of the children.
Relators seek a writ of mandamus requiring the district court to vacate its temporary orders (2) in which it named the Department the temporary sole managing conservator of their children. (3) Relators complain that the Department failed to meet its burden under section 262.201 of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required the immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children's removal from their parents. Tex. Fam. Code Ann. § 262.201 (West Supp. 2007). Without such proof, Relators argue, the district court was required to return the children to their parents and abused its discretion by failing to do so.
Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved.
However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. See id. (4)
Section 262.201 further requires the Department, when it has taken children into custody on an emergency basis, to make a showing of specific circumstances that justify keeping the children in the Department's temporary custody pending full litigation of the question of permanent custody. Unless there is sufficient evidence to demonstrate the existence of each of the requirements of section 262.201(b), the court is required to return the children to the custody of their parents. Tex. Fam. Code Ann. § 262.201(b).
In this case, the Department relied on the following evidence with respect to the children taken into custody from the Yearning For Zion ranch to satisfy the requirements of section 262.201:
•Interviews with investigators revealed a pattern of girls reporting that "there was no age too young for girls to be married";
•Twenty females living at the ranch had become pregnant between the ages of thirteen and seventeen;
•Five of the twenty females identified as having become pregnant between the ages of thirteen and seventeen are alleged to be minors, the other fifteen are now adults;
•Of the five minors who became pregnant, four are seventeen and one is sixteen, and all five are alleged to have become pregnant at the age of fifteen or sixteen; (5)
•The Department's lead investigator was of the opinion that due to the "pervasive belief system" of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse;
•All 468 children (6) were removed from the ranch under the theory that the ranch community was "essentially one household comprised of extended family subgroups" with a single, common belief system and there was reason to believe that a child had been sexually abused in the ranch "household"; and
•Department witnesses expressed the opinion that there is a "pervasive belief system" among the residents of the ranch that it is acceptable for girls to marry, engage in sex, and bear children as soon as they reach puberty, and that this "pervasive belief system" poses a danger to the children.
In addition, the record demonstrates the following facts, which are undisputed by the Department:
•The only danger to the male children or the female children who had not reached puberty identified by the Department was the Department's assertion that the "pervasive belief system" of the FLDS community groomed the males to be perpetrators of sexual abuse later in life and taught the girls to submit to sexual abuse after reaching puberty;
•There was no evidence that the male children, or the female children who had not reached puberty, were victims of sexual or other physical abuse or in danger of being victims of sexual or other physical abuse;
•While there was evidence that twenty females had become pregnant between the ages of thirteen and seventeen, there was no evidence regarding the marital status of these girls when they became pregnant or the circumstances under which they became pregnant other than the general allegation that the girls were living in an FLDS community with a belief system that condoned underage marriage and sex; (7)
•There was no evidence that any of the female children other than the five identified as having become pregnant between the ages of fifteen and seventeen were victims or potential victims of sexual or other physical abuse;
•With the exception of the five female children identified as having become pregnant between the ages of fifteen and seventeen, there was no evidence of any physical abuse or harm to any other child;
•The Relators have identified their children among the 468 taken into custody by the Department, and none of the Relators' children are among the five the Department has identified as being pregnant minors; and
•The Department conceded at the hearing that teenage pregnancy, by itself, is not a reason to remove children from their home and parents, but took the position that immediate removal was necessary in this case because "there is a mindset that even the young girls report that they will marry at whatever age, and that it's the highest blessing they can have to have children."
The Department argues that the fact that there are five minor females living in the ranch community who became pregnant at ages fifteen and sixteen together with the FLDS belief system condoning underage marriage and pregnancy indicates that there is a danger to all of the children that warrants their immediate removal from their homes and parents, and that the need for protection of the children is urgent. (8) The Department also argues that the "household" to which the children would be returned includes persons who have sexually abused another child, because the entire Yearning For Zion ranch community is a "household." See id. § 262.201(d)(2).
The Department failed to carry its burden with respect to the requirements of section 262.201(b).
Pursuant to section 262.201(b)(1), the danger must be to the physical health or safety of the child. The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief" that condones polygamous marriage and underage females having children. (9)
The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child-rearing as soon as females reach puberty.
The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. (10)
There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy. Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, (11) there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community.
The legislature has required that there be evidence to support a finding that there is a danger to the physical health or safety of the children in question and that the need for protection is urgent and warrants immediate removal. Id. § 262.201(b). Evidence that children raised in this particular environment may someday have their physical health and safety threatened is not evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.
Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. (12) After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children. They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators.
We find that the Department did not carry its burden of proof under section 262.201. The evidence adduced at the hearing held April 17-18, 2008, was legally and factually insufficient to support the findings required by section 262.201 to maintain custody of Relators' children with the Department.
Consequently, the district court abused its discretion in failing to return the Relators' children (13) to the Relators. The Relators' Petition for Writ of Mandamus is conditionally granted. The district court is directed to vacate its temporary orders granting sole managing conservatorship of the children of the Relators to the Department. The writ will issue only if the district court fails to comply with this opinion.
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: May 22, 2008
1. The Department removed over 450 children from their homes on the Yearning For Zion ranch over the course of three days. This proceeding does not involve parents of all of the children removed.
2. The temporary orders reviewed in this proceeding were issued following the hearing held April 17-18, 2008, and were signed the week of April 21, 2008.
3. Because temporary orders in a suit affecting a parent-child relationship are not subject to interlocutory appeal under the family code, mandamus review is appropriate. Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Vernor, 94 S.W.3d 201, 210 (Tex. App.--Austin 2002, orig. proceeding).
4. Section 262.201 provides, in relevant part, as follows:
(a) Unless the child has already been returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession and the temporary order, if any, has been dissolved, a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity.
(b) At the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:
(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and
(3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.
. . . .
(d) In determining whether there is a continuing danger to the physical health or safety of the child, the court may consider whether the household to which the child would be returned includes a person who:
(1) has abused or neglected another child in a manner that caused serious injury to or the death of the other child; or
(2) has sexually abused another child.
Tex. Fam. Code Ann. § 262.201 (West Supp. 2007).
5. One woman is alleged to have become pregnant at the age of thirteen. She is now twenty-two years old.
6. This number has fluctuated. It will likely continue to fluctuate somewhat as disputes regarding the age of certain persons taken into custody are resolved.
7. Under Texas law, it is not sexual assault to have consensual sexual intercourse with a minor spouse to whom one is legally married. Tex. Penal Code Ann. § 22.011(a), (c)(1), (2) (West Supp. 2007). Texas law allows minors to marry--as young as age sixteen with parental consent and younger than sixteen if pursuant to court order. Tex. Fam. Code Ann. § 2.101 (West 2006), §§ 2.102-.103 (West Supp. 2007). A person may not be legally married to more than one person. Tex. Penal Code Ann. § 25.01 (West Supp. 2007).
8. The Department's position was stated succinctly by its lead investigator at the hearing. In response to an inquiry as to why the infants needed to be removed from their mothers, the investigator responded, "[W]hat I have found is that they're living under an umbrella of belief that having children at a young age is a blessing therefore any child in that environment would not be safe."
9. The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children--much as there are differences of opinion regarding the details of religious doctrine among other religious groups.
10. The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.
11. The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.
12. The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.
13. The children referred to are those children reflected on Appendix I to Relators' reply brief and who are still in the custody of the Department.
Monday, May 12, 2008
Monica Ramirez v. TDFPS Texas Department of Family and Protective Services 03-08-00084-CV DISMISSED ON APPELLANT'S MOTION: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Henson)
03-08-00084-CV
Monica Ramirez v. Texas Department of Family and Protective Services
Appeal from 198th District Court of McCulloch County
M E M O R A N D U M O P I N I O N
Appellant Monica Ramirez has filed a motion to dismiss her appeal of a trial court's findings and order, dated January 22, 2008, from a section 263.405(d) hearing. See Tex. Fam. Code Ann. § 263.405(d) (West Supp. 2007). We grant appellant's motion and dismiss the appeal. See Tex. R. App. P. 42.1(a). (1)
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellant's Motion
Filed: May 9, 2008
1. In December 2007, the trial court entered a final judgment terminating Ramirez's parental rights. Ramirez filed a statement of points on appeal on January 8 and an amended statement of points on appeal on January 16. The trial court in its January order denied Ramirez's motion to extend time to file a statement of points on appeal from the termination judgment. See Tex. Fam. Code Ann. § 263.405(b)(2) (West Supp. 2007). Ramirez then filed with this Court, a motion to extend the time to file her statement of points on appeal, and this Court, on February 6, granted her motion, extending the time to file her statement of points on appeal to January 17. Ramirez, on February 12, filed in the trial court, a motion for rehearing and new trial from the January findings and orders based in part on the timeliness of her statement of points on appeal after the extension from this Court. The trial court thereafter held a section 263.405(d) hearing in February, entering findings and an order dated February 27, 2008. Ramirez has filed a notice of appeal from the February findings and order that remains pending in this Court as appellate cause number 03-08-00150-CV. Her appeal from the termination of her parental rights also remains pending in this Court as appellate cause number 03-08-00021-CV.
03-08-00084-CV
Monica Ramirez v. Texas Department of Family and Protective Services
Appeal from 198th District Court of McCulloch County
M E M O R A N D U M O P I N I O N
Appellant Monica Ramirez has filed a motion to dismiss her appeal of a trial court's findings and order, dated January 22, 2008, from a section 263.405(d) hearing. See Tex. Fam. Code Ann. § 263.405(d) (West Supp. 2007). We grant appellant's motion and dismiss the appeal. See Tex. R. App. P. 42.1(a). (1)
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellant's Motion
Filed: May 9, 2008
1. In December 2007, the trial court entered a final judgment terminating Ramirez's parental rights. Ramirez filed a statement of points on appeal on January 8 and an amended statement of points on appeal on January 16. The trial court in its January order denied Ramirez's motion to extend time to file a statement of points on appeal from the termination judgment. See Tex. Fam. Code Ann. § 263.405(b)(2) (West Supp. 2007). Ramirez then filed with this Court, a motion to extend the time to file her statement of points on appeal, and this Court, on February 6, granted her motion, extending the time to file her statement of points on appeal to January 17. Ramirez, on February 12, filed in the trial court, a motion for rehearing and new trial from the January findings and orders based in part on the timeliness of her statement of points on appeal after the extension from this Court. The trial court thereafter held a section 263.405(d) hearing in February, entering findings and an order dated February 27, 2008. Ramirez has filed a notice of appeal from the February findings and order that remains pending in this Court as appellate cause number 03-08-00150-CV. Her appeal from the termination of her parental rights also remains pending in this Court as appellate cause number 03-08-00021-CV.
Rodriguez v. TDFPS (Tex.App.- Austin, May 8, 2008)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services, No. 03-07-00467-CV (Tex.App.- Austin, May 8, 2008)(Opinion by Justice Waldrop) (TDFPS suits, SAPCR, supervised vistiation, limited access, pro se litigants) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.
The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals
Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.
Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.
We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).
In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.
The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.
In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."
According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)
Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.
Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.
Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.
J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."
Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."
These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.
Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.
In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.
Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."
Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.
Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.
J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.
Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.
A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.
The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.
Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.
In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.
In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.
In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.
A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.
In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.
The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.
In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.
In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.
We affirm the trial court's order.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008
1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.
The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals
Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.
Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.
We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).
In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.
The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.
In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."
According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)
Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.
Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.
Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.
J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."
Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."
These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.
Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.
In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.
Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."
Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.
Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.
J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.
Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.
A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.
The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.
Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.
In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.
In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.
In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.
A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.
In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.
The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.
In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.
In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.
We affirm the trial court's order.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008
1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.
Wednesday, October 31, 2007
Tx DPFS Suits: Parental rights terminated; Appeal rejected as frivolous
Austin Court of Appeals affirms termination of parental rights on Anders Brief and allows attorney to withdraw. Parent did not file pro se brief to avoid determination that the appeal was frivolous.
Michelle Thomas v. Texas Department of Family and Protective Services, No. 03-07-00248-CV (Opinion by Justice Patterson)(TDPFS termination suit)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
Disposition: Trial cour order terminating parental rights affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,846-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Michelle L. Thomas, to her minor children, Kv.T. and Ks.T., and also terminating the parental rights of Jermaine Buchanan as to Kv.T. and Terrell Rigmadon as to Ks.T. as the alleged biological fathers. Thomas's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Thomas, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. We further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: October 31, 2007
Michelle Thomas v. Texas Department of Family and Protective Services, No. 03-07-00248-CV (Opinion by Justice Patterson)(TDPFS termination suit)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
Disposition: Trial cour order terminating parental rights affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,846-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Michelle L. Thomas, to her minor children, Kv.T. and Ks.T., and also terminating the parental rights of Jermaine Buchanan as to Kv.T. and Terrell Rigmadon as to Ks.T. as the alleged biological fathers. Thomas's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Thomas, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. The judgment of the trial court is therefore affirmed. We further grant counsel's motion to withdraw as attorney.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: October 31, 2007
Friday, October 26, 2007
Anders brief ends appeal in termination of parental rights case
James Boyd v. Texas Department of Family and Protective Services [TDFPS = Texas DFPS], N0. 03-06-00702-CV, (Tex.App.- Austin, Oct. 25, 2007)( Opinion by Chief Justice Law ) (Before Chief Justice Law, Justices Waldrop and Henson)
Appeal from 146th District Court of Bell County
Disposition: Affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,085-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
James Boyd brings this accelerated appeal from a final order terminating his parental rights to his minor children, G.B. and Y.B. Boyd is represented by court-appointed counsel who thoroughly reviewed the record and filed an Anders brief concluding that Boyd's appeal is frivolous and without merit. Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967); see also Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied).
Boyd was provided with copies of his counsel's brief and motion to withdraw. He was advised of his right to examine the record and to file a pro se brief. He has not filed a pro se brief or communicated with this Court in any way. Because our review of the record found nothing that would arguably support an appeal, we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and grant the motion to withdraw as counsel.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: October 26, 2007
Appeal from 146th District Court of Bell County
Disposition: Affirmed
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,085-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
James Boyd brings this accelerated appeal from a final order terminating his parental rights to his minor children, G.B. and Y.B. Boyd is represented by court-appointed counsel who thoroughly reviewed the record and filed an Anders brief concluding that Boyd's appeal is frivolous and without merit. Counsel's brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967); see also Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied).
Boyd was provided with copies of his counsel's brief and motion to withdraw. He was advised of his right to examine the record and to file a pro se brief. He has not filed a pro se brief or communicated with this Court in any way. Because our review of the record found nothing that would arguably support an appeal, we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and grant the motion to withdraw as counsel.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: October 26, 2007
Wednesday, August 29, 2007
Anders brief terminates appeal from parental rights termination case
Derrasette Westbrook v. Texas Department of Family and Protective Services, No. 03-06-00681-CV, (Tex.App.- Austin, Aug. 29, 2007)(Opinion by Justice Patterson)(termination, Anders brief)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 212,847-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
NO. 212,847-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from an order terminating the parental rights of Derrasette Westbrook to her minor child, F.M. Westbrook's court-appointed attorney filed an Anders brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.--Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights).
A copy of counsel's brief was delivered to Westbrook, who was advised of her right to examine the record and to file a pro se brief. No pro se brief has been filed. After reviewing the record, we have found nothing that would arguably support an appeal, and we agree that the appeal is frivolous and without merit. We affirm the judgment of the trial court and further grant counsel's motion to withdraw as attorney.
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Before Justices Patterson, Puryear and Pemberton
Affirmed
Thursday, August 2, 2007
Tex. DFPS withdraws mandamus petition as moot
In re Texas Department of Family and Protective Services, No. 03-07-00344-CV (Tex.App.- Austin, Aug. 1, 2007)(Opinion by Justice Pemberton)(dismissal)(Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 98th District Court of Travis County - Dismissed
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION BY JUSTICE PEMBERTON
Relator Texas Department of Family and Protective Services (TDFPS) filed this petition for writ of mandamus. Subsequently, TDFPS filed this unopposed motion to withdraw the petition, stating that the parties have reached an agreement that renders the subject matter of the petition moot. Accordingly, we dismiss the petition for writ of mandamus.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: August 1, 2007
Appeal from 98th District Court of Travis County - Dismissed
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION BY JUSTICE PEMBERTON
Relator Texas Department of Family and Protective Services (TDFPS) filed this petition for writ of mandamus. Subsequently, TDFPS filed this unopposed motion to withdraw the petition, stating that the parties have reached an agreement that renders the subject matter of the petition moot. Accordingly, we dismiss the petition for writ of mandamus.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: August 1, 2007
Monday, June 25, 2007
Harris v. Tex. DFPS (Tex.App.-Austin, Jun. 15, 2007)
Harris v. Tex. Dep't of Fam. & Prot. Serv's (Tex.App.- Austin, Jun. 15, 2007)(Puryear)(termination of parental rights, SAPCR, managing conservator)
REVERSED AND RENDERED: Opinion by Justice Puryear
Dissent by Justice Patterson
Before Chief Justice Law, Justices Patterson and Puryear
03-05-00244-CV
Ramona Harris v. Texas Department of Family and Protective Services
Appeal from 207th District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 00-0684-A, HONORABLE DONALD V. HAMMOND, JUDGE PRESIDING
MAJORITY OPINION BY JUSTICE PURYEAR
Appellant Ramona Harris gave birth to C.C.H. on February 3, 2001. The Texas Department of Family and Protective Services first got involved with Harris in late 1999 and removed her three older children from her care in 2000. When C.C.H. was born, the Department immediately took custody of him and placed him in foster care with his older siblings. (1) The cause was submitted to a jury in October 2004, and the jury returned a verdict finding that Harris's parental rights to C.C.H. should not be terminated and that she should be named his managing conservator. The Department filed a motion for new trial, arguing that the jury's finding on conservatorship was against the great weight and preponderance of the evidence, manifestly unjust, and not in C.C.H.'s best interest. The child's attorney ad litem filed a motion asking the court to designate the Department as C.C.H.'s managing conservator.
Seven months later, in early April 2005, the trial court signed an order in accordance with the jury's finding that Harris's parental rights should not be terminated. However, the court went on to state that the jury's finding that Harris should be appointed managing conservator was "against the greater weight and degree of the credible evidence" and not in the child's best interest. The court named the Department as C.C.H.'s sole managing conservator and Harris as possessory conservator, with "supervised visitation . . . as has been in effect in the past." It is from this order that Harris appeals. She argues that the trial court erred in disregarding the jury's finding that she should be appointed C.C.H.'s managing conservator. She further argues that the trial court's judgment (1) did not make the findings necessary to name the Department as C.C.H.'s managing conservator, (2) granted relief not requested by the Department, and (3) did not grant relief that was in the child's best interest. We reverse the trial court's order.
Which statutes apply?
The cause before us involves the interaction of several sections of chapter 5 of the family code, including sections 105.002, 161.205, and 263.404. We must therefore determine how these statutes should be interpreted and applied and whether they can coexist or are in conflict. Harris argues that section 105.002 of the family code prohibited the trial court from disregarding the jury's finding as to conservatorship. See Tex. Fam. Code Ann. § 105.002 (West Supp. 2006). The Department, on the other hand, argues that the trial court did not err in entering its order, relying on section 161.205 of the family code, which it argues is a more specific statute that should control over section 105.002. See id. § 161.205 (West 2002).
Section 105.002 provides that in most suits affecting a parent-child relationship, (1) a party is entitled to a jury trial, and (2) the trial court may not contravene the jury's verdict on the appointment of managing or possessory conservators. Id. § 105.002(a), (c). In determining issues of conservatorship and possession of a child, the child's best interest must be the trial court's primary consideration. See id. § 153.002 (West 2002). There is a strong presumption that a parent should be appointed managing conservator unless that appointment is not in the child's best interest and would significantly impair the child's physical health or emotional development. Id. § 153.131(a) (West 2002); Lewelling v. Lewelling, 796 S.W.2d 164, 166-67 (Tex. 1990). Under chapter 161, which governs suits seeking to terminate a parent's relationship with her child, see Tex. Fam. Code. Ann. §§ 161.001-.211 (West 2002 & Supp. 2006), if a trial court does not terminate a parent's rights, it shall either deny the petition or "render any order in the best interest of the child." Id. § 161.205. The Department contends that section 161.205 authorized the trial court to disregard the jury's findings as to conservatorship and appoint the Department as managing conservator. We disagree.
When a child has been taken into the Department's care, the trial court must conduct periodic hearings to review conservatorship and a parent's attempts to regain custody of her child. See id. §§ 263.001-.503 (West 2002 & Supp. 2006). Under chapter 263, a trial court must render a final order within eighteen months of the Department's appointment as temporary managing conservator. (2) Id. § 263.401(a), (b) (West Supp. 2006). A final order is one that orders the child returned to the parent, terminates the parent-child relationship, names a relative or other person as the child's managing conservator, or appoints the Department managing conservator without terminating the parent's rights. Id. § 263.401(d). Section 263.404 allows a trial court to render a final order that does not terminate a parent's rights yet names the Department as managing conservator if the court finds (1) that the appointment of the parent as managing conservator would not be in the child's best interest because it would significantly impair the child's physical or emotional well-being and (2) that it is not in the child's best interest to appoint a relative or another person as the child's managing conservator. Id. § 263.404(a) (West 2002). In making that decision, the trial court should consider the child's age, needs, and desires, whether a child twelve or older has expressed strong feelings against termination or being adopted, and any special needs that would reduce the child's chances of being adopted. Id. § 263.404(b).
In construing a statute, we look to the legislature's intent, first examining the plain language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). The legislature enacted section 105.002 as part of subtitle A, "General Provisions," which governs all suits affecting the parent-child relationship. Contrary to the Department's contention, Texas courts have considered section 105.002 in several contexts, including termination, and have applied it in conjunction with statutes governing termination suits. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 653-54 (Tex. App.--Austin 2005, pet. denied) (section 105.002 applied in suit in which parents' rights were terminated and grandmother sought conservatorship); Corrales v. Department of Family & Protective Servs., 155 S.W.3d 478, 488 (Tex. App.--El Paso 2004, no pet.) (section 161.207, which requires appointment of managing conservator after parental rights are terminated, "must be read in conjunction with Section 105.002," and court "may not contravene a jury verdict concerning the appointment of a sole managing conservator"); In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.--San Antonio 1997, writ denied) (applying section 105.002 in suit asking whether father or guardian should be appointed managing conservator); see also Lenz, 79 S.W.3d at 13, 19-20 (applying section 105.002 to order imposing geographical limitation on children's residence).
The jury found, and the trial court entered judgment in conformity with that finding, that Harris's parental rights to C.C.H. should not be terminated. Once that decision was made, the only issue that remained was who should be named as managing conservator of C.C.H. A trial court that does not terminate a parent's rights in a termination suit must either dismiss the petition or enter an order in the child's best interest. Tex. Fam. Code Ann. § 161.205. In making its orders, the trial court may not contravene the jury's determination of conservatorship unless the jury's findings are not supported by the evidence. Lenz, 79 S.W.3d at 20 ("because we have concluded that there is legally sufficient evidence to support the jury's verdict in this case, we further conclude that the trial court improperly contravened the jury's verdict by imposing a geographical restriction on the boys' primary residence"); Taylor, 160 S.W.3d at 653-54; Rodriguez, 940 S.W.2d at 271; see also Corrales, 155 S.W.3d at 488 (court may not contravene jury verdict on sole managing conservator, and conservatorship decision is reviewed not for abuse of discretion but under traditional sufficiency standards); In re W.H.M., No. 01-00-01396-CV, 2003 Tex. App. LEXIS 8548, at *19-23 (Tex. App.--Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.) (holding that "jury's findings regarding . . . managing or possessory conservatorship had to be supported by a preponderance of the evidence," citing family code section 105.005, and noting that jury's custody determination is binding on trial court if supported by evidence); Brunson v. Brunson, 502 S.W.2d 578, 579 (Tex. Civ. App.--Fort Worth 1973, no writ) (applying predecessor to section 105.002 and holding that "in order for the jury verdict to be binding upon the court it must be supported by evidence of probative force"). We must conduct a traditional sufficiency review to determine whether the trial court erred in contravening the jury's conservatorship determination. See Lenz, 79 S.W.3d at 19-20; Brunson, 502 S.W.2d at 579-80.
Harris is attacking the trial court's disregard of a jury's finding in her favor on an issue on which the Department had the burden of proof. See In re W.G.W., 812 S.W.2d 409, 413 (Tex. App.--Houston [1st Dist.] 1991, no writ) (party seeking to bar natural parent from appointment as managing conservator must show that child's best interest "would be best served by the appointment of a non-parent"). Therefore, we ask whether there was legally sufficient evidence to support the jury's finding; if there was legally sufficient evidence, the trial court erred in contravening the jury's finding. See Lenz, 79 S.W.3d at 19-20; Brunson, 502 S.W.2d at 579; see also John Paul Mitchell Sys. v. Randall's Food Markets, Inc., 17 S.W.3d 721, 728 (Tex. App.--Austin 2000, pet. denied) ("We will uphold a trial court's judgment notwithstanding the verdict only if we determine that there is no evidence to support the jury's findings."). We view the evidence in the light most favorable to the jury's finding, indulging every reasonable inference that supports the finding, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 821-22 (Tex. 2005). If reasonable jurors could differ in their conclusions, we may not substitute our judgment for the jury's, and we must defer to the jury's determinations of the credibility of the witnesses, the weight to be given the testimony, and the resolution of evidentiary conflicts. Id. at 819-20, 822. In other words, the trial court could have contravened the verdict only if a reasonable fact-finder could not have resolved the factual disputes in favor of the verdict. See id. at 823 ("Judgment without or against a jury verdict is proper at any course of the proceedings only when the law does not allow reasonable jurors to decide otherwise."). Finally, in conducting our review, we must keep in mind the rebuttable statutory presumption that it is in a child's best interest for his parent, rather than a non-parent, to be appointed managing conservator. Tex. Fam. Code Ann. § 153.131; Lewelling, 796 S.W.2d at 166-67.
Sufficiency of the evidence supporting the jury's finding
C.C.H. was born on February 3, 2001. At the time he was born, the Department had been involved with Harris and her three older children through referrals dating back to late 1999. In mid-2000, the Department removed the three older children from Harris's care, and her parental rights to those children were terminated in October 2001. See Harris v. Texas Dep't of Protective & Regulatory Servs., No. 03-01-00643-CV, 2003 Tex. App. LEXIS 2842, at *1 (Tex. App.--Austin Apr. 3, 2003, no pet.) (memo. op.). C.C.H. was removed from Harris's care immediately after he was born and placed in the same foster home as his older siblings. When Harris's rights to her older children were terminated, the Department was named temporary managing conservator; the trial court did not name Harris as his possessory conservator. Although Harris requested visitation several times, the Department denied her requests because she was not a possessory conservator. (3) At the time of trial in October 2004, Harris had been allowed to visit C.C.H. three times.
Most of the Department's evidence related to her behavior with her older children because the Department had removed C.C.H. from Harris's custody shortly after his birth and limited her contact with him during the pendency of this suit. (4) Harris was referred to the Department in 1999, when her older daughter made an outcry that she had been sexually abused by Harris's boyfriend. Harris initially disbelieved her daughter but later acknowledged the abuse. The boyfriend later pled guilty to the charge and was sentenced to prison. Although she agreed not to allow the boyfriend who abused her daughter to have contact with the children, Harris brought the children with her to prison to visit and possibly confront him about the abuse. In May 2000, another referral was made, alleging that Harris was frequenting a "crack house," exposing her children to that dangerous environment, spending time with another known sex offender, and allowing him contact with her children. The Department took custody of the three older children at this point and later proceeded to seek the termination of her parental rights.
At trial, Department caseworkers testified that in their dealings with her related to her older children, she was uncooperative and confrontational. The Department initially attempted to allow Harris visits with her older children twice a month, but caseworkers testified that Harris did not cooperate, sometimes refused to attend visitations unless all three children would be there, and once left a visit early because she believed her rights were being violated. However, Harris had also completed many of the court-ordered requirements, including two parenting classes, a drug and alcohol screening, and a psychological assessment, and attended Alcoholics Anonymous meetings.
Caseworkers testified that Harris sometimes refused Department requests for drug testing, once tested positive for marihuana, (5) and admitted to smoking marihuana that one time; Harris and C.C.H. tested negative for illegal substances when C.C.H. was born. Caseworker Leslie Ontiveros testified that in May 2000, the police told her that Harris had gone to a "known crack house" and had brought her children to a house where a sex offender named Elvis Harris lived. Ontiveros believed that Elvis Harris, who was deceased at the time of trial, was related to Harris's husband's family, although Harris, her husband, and her father-in-law denied this. Although Elvis Harris was characterized as a known sex offender, Ontiveros admitted that his conviction "may have" occurred after Harris's children were removed, and Harris introduced records showing that Elvis Harris was convicted in 2002, three years after the Department alleged endangerment because Harris had "exposed" her children to him and one year after her rights to her older children were terminated.
Scott Johnson, a San Marcos police detective, testified that he met Harris and her children in late 1999, after Harris's daughter made her outcry. He also dealt with Harris more recently, when the Department removed N.H. He said that he saw no signs that Harris had neglected or injured her children. He said that N.H. was clean and that Harris's house was "fairly well kept," although it looked like Harris was packing to move. Gayle Michalek, a licensed professional counselor who worked with Harris from August to December 2000, testified that Harris admitted to substance abuse starting in high school, but denied any recent use. (6) She also testified that Harris attended AA or NA meetings about three times a month.
Chris Farrell, another of Harris's therapists, met with her in February, March, and April 2001, starting very shortly after C.C.H. was born and removed from her care. Farrell testified that Harris told him that her mother was a drug addict when Harris was a child and that Harris had been in foster care when she was young. He testified that she was very angry, expressed violent thoughts toward the Department, and believed she was being persecuted by the Department. During their sessions, Farrell attempted to point out that Harris's anger and attitude toward the Department were not helping her regain custody of her children. Farrell thought he was building rapport and making progress with Harris, but after six sessions, she got angry and left when he
ran late with another client and never returned.
Farrell testified that Harris, who was working in a nursing home at the time, related a conversation she had with the daughter of a patient. The woman was angry and threatening, and Harris responded by reminding the woman "that her mother was in [Harris's] care." Farrell took this remark to mean that Harris was saying that "she could have hurt the woman's mother in retaliation for this woman calling [Harris] and threatening her." Harris then made what Farrell took to be similar threats towards Department caseworkers, saying they should hope never to be in a nursing home where Harris worked. Farrell said he was "shocked" to hear that level of anger and violence, saying that he was accustomed to clients being angry and venting about the Department with general remarks such as, "I'm so angry I could kill them." Farris, however, felt that Harris's remarks were very specific and showed him that Harris "was thinking in her mind about how she could hurt this woman's mother." Farrell believed Harris was "very angry" and violent, made poor choices for which she did not take responsibility, blamed others for her problems, and "retaliate[d] against others when they fail to conform to her wishes and desires." Farrell testified that during their fourth session he told Harris that he could be "subpoenaed to testify against her and use whatever confidential information she gave [him] against her."
Sherryl Boyd, the court-appointed special advocate for C.C.H., testified that he was happy and safe in his foster home with his siblings. She testified that he had not known any other home since his birth almost four years earlier. She also testified about some of the negative things the older children told her about living with Harris and said that the children told her that Harris was neglectful and violent and used drugs in front of them. C.C.H.'s foster mother, who with her husband has adopted the older three children, testified that C.C.H. was doing well in their home and was very attached to his oldest brother. She believed it was in his best interest to terminate Harris's rights so that he could be adopted into their family.
Cleiffort Cooks-Harris, Harris's estranged husband, denied that he or Harris used drugs or abused C.C.H. or N.H., their youngest son, and he felt that the Department was harassing him and Harris. (7) Cooks-Harris, who is African-American, testified that the Department got involved in his life only after he married Harris, who is Caucasian. At the time of trial, Cooks-Harris was in jail for violating Harris's protective order against him, which he thought had been removed, when he took care of N.H. in Harris's home while Harris worked. The protective order provided Cooks-Harris with visitation rights to N.H. and allowed Cooks-Harris and Harris to agree to additional visitation. However, the order bars Cooks-Harris from entering Harris's home; visitation must take place at another location. Cooks-Harris testified that Elvis Harris was not a relative, that Elvis's brother was married to one of Cooks-Harris's cousins, and that he never knew Elvis had been convicted of a sex crime. Cooks-Harris's father testified that he did not think Harris or his son used drugs. He also testified that the alleged crack house was instead a relative's home and that he never knew that Elvis Harris was a sex offender.
Harris's mother, Karen Bryant, testified that Harris had attended AA and NA meetings, got an AA sponsor, and did not abuse drugs or alcohol. She denied many of the Department's allegations, including allegations that she herself was a drug addict. Bryant denied any drug use and testified that her mother, Harris's grand-mother, was an alcoholic and drug abuser and that Bryant herself was very opposed to drug use. She believed Harris was a good mother who tended to spoil her children but never neglected or abused them. She testified that she thought it was in C.C.H.'s best interest for him to be raised by Harris. Karen Rust, Harris's employer, testified that Harris had worked for her for more than two and one-half years, providing in-home care for elderly and disabled patients. She said that Harris was an excellent and professional care giver and that she had never received any complaints about Harris or reports that Harris had threatened a patient. Rust testified that Harris had described her dealings with the Department and told Rust that she thought the Department was "being overly aggressive and unfair." One of Harris's neighbors testified that he never saw any evidence of drug use by Harris or Cooks-Harris or any signs that N.H. was abused or neglected.
Taylor Skaar, a domestic violence counselor at a women's shelter, testified that Harris used the shelter "as a place to get help." Skaar said Harris had the paperwork to initiate a divorce and talked about taking N.H. and moving to get away from both Cooks-Harris and the Department but was also conflicted about whether to reconcile with her husband and abandon the protective order against him. Skaar did not find Harris to be delusional or paranoid and said Harris was angry and believed she was being abused by the Department. Skaar thought Harris struggled with "being poor, not having money, not having a support system, and still being required to take care of her child and to earn money." Skaar heard similar complaints from other women about the Department's requirements. Skaar had never viewed Harris as violent and could not imagine her threatening to harm anyone. She had seen Harris angry but never aggressive or "explosively" angry. Skaar testified that Harris did not direct her anger at her children or Skaar, but instead at the Department and the situation in which she felt trapped. Skaar testified that she never saw any signs that N.H. was abused or neglected, saying, "One thing I know for sure is that Ramona really cares about her child."
Harris testified and denied most of the Department's charges leveled against her in this and the earlier termination proceeding. (8) She admitted that when her daughter made her outcry of abuse by Harris's former boyfriend, Harris initially doubted the accusation because she thought her daughter, who was not always honest and was a "daddy's girl," was trying to drive Harris back to her ex-husband. She later came to believe the outcry and recognized that bringing her children to see the abusive boyfriend in jail was a poor choice. She testified that although she learned later that her boyfriend was on probation for robbery, she did not know that at the time. Harris denied telling Farrell that her mother was a drug addict. She further denied using crack cocaine but admitted to smoking marihuana once shortly after her daughter's outcry and her children's removal. She denied bringing her children to a crack house and testified that the alleged crack house was actually the home of Cooks-Harris's uncle where the Harris family socialized, and she, Cooks-Harris, and Cooks-Harris's father testified that the uncle was neither a drug dealer nor user. (9) She denied threatening anyone and said that her remark to Farrell meant that she thought the Department staffers should "remember the golden rule" and should be nice to people because "one day they might need you, and you might treat them the same way that they're treating you." She also said that Farrell told her that "it was best for [her] to just quit and give [her] children away"; after that remark, she felt he was not working for or helping her. She denied refusing to visit her children and said she "might have been late for a visit." Harris had worked for the same care-giver agency for several years and made between $15,000 and $19,000 a year.
Harris testified that she attempted to vacate the protective order because she needed Cooks-Harris's help to babysit for N.H. She called the assistant district attorney who had helped her obtain the protective order and was told that the attorney "would look into it," which she thought meant the protective order would be dropped. She stated that she obtained the protective order after a fight with Cooks-Harris, but denied alleging that he had physically abused her. She said she called the police out of anger but then realized that the Department would try to take N.H. away from her. She said she went to the shelter for safety from the State, not from Cooks-Harris. She said she had filed for divorce from Cooks-Harris and although "to a degree" she was "wanting to reconcile," she and Cooks-Harris both testified that they intended to go through with the divorce. Harris also denied that she had "subjected" her children to a known sex offender. She testified that in 1999, when she heard that Elvis Harris might be a sex offender, she went to the Sheriff's Office to inquire, and was told that he was not included in the sex offender registry. Harris introduced evidence showing that not until 2002, well after her inquiry, was Elvis Harris convicted of a sex offense.
In determining the placement of a child, the child's best interest is the primary consideration. Tex. Fam. Code Ann. § 153.002; Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet.). In making that determination, the fact-finder is to consider the following factors: the child's desires, the child's present and future emotional and physical needs, emotional and physical danger posed to the child now and in the future, the parenting abilities of the individuals seeking custody, programs available to assist the would-be parents, the individuals' or agency's plans for the child, the stability of the proposed homes, any acts or omissions by the parent that might show an improper parent-child relationship, and any excuse for such acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
Most of the Department's evidence related to Harris's behavior with her older children, and the jury could have determined that leaving C.C.H. in the Department's care would be in C.C.H.'s best interests. However, the jury did not make that finding. Instead, it found that naming Harris as managing conservator would best serve the child's interests. That decision only needed to be, and was, supported by legally sufficient evidence.
It was not the trial court's role to re-weigh the evidence; the court was instead limited to ensuring that some credible evidence supported the jury's findings. See Tex. Fam. Code Ann. § 105.002(c)(1). Aside from stating that the jury's finding in favor of Harris was "against the greater weight and degree of the credible evidence," however, the trial court made no findings of fact and provided no details of the manner in which the jury's finding was unreasonable or unsupported by legally sufficient evidence. Nor did the court find that naming Harris as managing conservator would significantly impair C.C.H.'s physical or emotional well-being. See id. § 263.404(a)(1). Further, the trial court was not empowered to disregard the jury's verdict merely based on factual sufficiency; the court could only controvert the verdict if it found the verdict was not supported by legally sufficient evidence. See Tex. Fam. Code Ann. § 105.002(c); Lenz, 79 S.W.3d at 19-20. However, by its finding that the jury's verdict was "against the greater weight and degree of the credible evidence," the trial court made a finding that the verdict was against the preponderance of the evidence. See, e.g., Columbia Rio Grande Reg'l Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 864 n.4 (Tex. App.--Corpus Christi 2006, pet. filed) ("preponderance of the evidence" is defined in Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises, & Products PJC 40.3 (2003), as "the greater weight and degree of credible evidence"). Thus, the trial court made it clear that it conducted a factual-sufficiency review, not a legal-sufficiency review. See Long v. Long, No. 08-05-00250-CV, 2007 Tex. App. LEXIS 1111, at *6 (Tex. App.--El Paso Feb. 15, 2007, no pet. h.) (to establish error, wife "must challenge that the characterization is against the great weight and preponderance of the evidence [a factual sufficiency complaint] or that separate property status was established as a matter of law [a legal sufficiency complaint]"). This overstepped the trial court's proper role in reviewing the jury's verdict.
Harris has had stable employment for a significant period of time. She denied using crack cocaine, one of the allegations frequently leveled against her by the Department, had never tested positive for cocaine, and produced testimony by several witnesses that they had never seen her using cocaine or acting as if she were under the influence of an illegal drug. Harris produced testimony that when N.H. was in her care, he was well cared for and not neglected or abused. Although it is true that C.C.H. has been in his foster home since his birth and has not had visitation with Harris, it was the Department's decision to deny all visitation that resulted in the lack of contact between C.C.H. and his mother. There was no evidence of any improper behavior by Harris directed at or related to C.C.H., and Harris and her witnesses denied most of the Department's allegations related to her older children. It was for the jury, as sole judge of the credibility of the witnesses, to weigh the credibility, decide any evidentiary conflicts, and determine the weight to be given the evidence. See City of Keller, 168 S.W.3d at 819-20. When the jury examined the evidence, it was obligated to consider the rebuttable presumption that C.C.H.'s best interest would be served by allowing Harris, his natural parent, to raise him. See Tex. Fam. Code Ann. § 153.131; Lewelling, 796 S.W.2d at 167 ("It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child."). We cannot hold that the jury acted unreasonably in reaching its factual determinations. See City of Keller, 168 S.W.3d at 819-20, 822-23.
Certainly this is a difficult case with no easy answers. C.C.H. has been in a comfortable home with his siblings since birth. However, he has also been denied contact with his natural parent since October 2001, and this lack of contact is a result of Department decisions, not Harris's decisions or conduct since the October 2001 trial or any indifference on her part. See Lewelling, 796 S.W.2d at 168 n.9. We agree with the dissent that the evidence related to C.C.H.'s best interest "was sparse," but this is in part due to the Department's decision to deny Harris any contact with him since October 2001. Further, it was misconduct by Department witnesses that caused the first trial of this case to end in a mistrial, which has extended the delay in resolving this matter. (10) Harris may be difficult for the Department to work with but that cannot be grounds for cutting off contact between a child and his natural parent whose rights have not been terminated.
The dissent spends a great deal of time discussing the evidence that would support a finding of termination and the standards and statutes that apply to a finding of termination. However, in this case, the jury found and the trial court agreed that Harris's parental rights should not be terminated. We must ask only whether there was any evidence on which the jury could base its decision to award managing conservatorship to Harris, but instead, the dissent conducts a result-oriented inquiry, bending the standards of review in order to reach a decision more palatable to the dissent. (11) We may not act in such a result-oriented manner and instead must conform our inquiry to the standards set out in the family code and by the supreme court. We may not substitute our judgment for that of the jury on matters of evidentiary conflict and must apply the law the same in this case as we would in any other.
Finally, we take great issue with the dissent's assertion that because Harris's rights to her older children were terminated, the "undisputed evidence" (12) "conclusively establishes a ground for termination that supports the trial court's disregard of the jury finding." The dissent goes on to say that "[b]ecause this evidence also constitutes undisputed evidence that Harris's parental relationship endangered the safety of her children and that termination was in their best interest, it is conclusive as well on the finding of best interest as it relates to the issue of C.C.H.'s conservatorship." (Citations omitted.) The dissent's approach would mean that once a parent commits an act permitting termination, there is no need to conduct further inquiry into best interest, something section 161.001(2) specifically requires. Further, this would mean that if a parent ever has his or her parental rights terminated, even if it occurred ten years earlier or was based on false testimony, that parent's parental rights to other children could be terminated without any factual inquiry at all. Even if his or her rights were not terminated, the parent could never hope to regain conservatorship. This misguided approach would drastically alter the termination statutes' provisions and would shift the burden of proof to parents defending themselves against termination cases, rather than requiring the State to show by clear and convincing evidence both grounds for termination and the child's best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2006); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Conclusion
Because legally sufficient evidence supported the jury's finding that it was in C.C.H.'s best interest for Harris to be named sole managing conservator, the trial court erred in contravening that finding and instead naming the Department as managing conservator. We reverse the trial court's order and render judgment in conformity with the jury's finding that Harris should be named C.C.H.'s managing conservator.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear;
Dissenting Opinion by Justice Patterson
Reversed and Rendered
Filed: June 15, 2007
1. Harris's parental rights to her older children were terminated in an earlier proceeding. See Harris v. Texas Dep't of Protective & Regulatory Servs., No. 03-01-00643-CV, 2003 Tex. App. LEXIS 2842, at *1 (Tex. App.--Austin Apr. 3, 2003, no pet.) (memo. op.). The Department first sought to terminate Harris's rights to C.C.H. in that proceeding but could not yet establish grounds for termination as to C.C.H. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2006) (grounds for termination). The trial court's decree terminated Harris's rights to her older children and appointed the Department as C.C.H.'s managing conservator. The older children have been adopted by their foster parents, the same parents fostering C.C.H. Harris also has one younger child, N.H., who was removed from her care by the Department shortly before this trial but was not part of this proceeding.
2. An earlier trial on the termination of Harris's rights to C.C.H. ended in a mistrial, and as a result, these proceedings extended past the eighteen-month deadline for a termination suit. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2006). Shortly before trial, Harris filed a motion to dismiss the termination suit for lack of jurisdiction "as provided for by Chapter 263 of the Texas Family Code." The trial court denied the motion, and Harris does not discuss this issue on
appeal.
3. The dissent states that "[f]or reasons not in the record, Harris was generally denied visitation." This is incorrect. The record reflects that Harris had a few visits with C.C.H. before the termination trial related to the older children, but after that trial, the trial court entered a final order terminating Harris's rights to her older children and appointing the Department C.C.H.'s managing conservator. Because the order did not appoint Harris as possessory conservator, the Department refused to allow her visitation from that point on. Former Department caseworker Kellie Ragland testified to that effect, and the record includes a letter to
Harris from Ragland dated October 21, 2002, in which Ragland stated that Harris was not entitled to visitation with C.C.H. and that visitation would be "disruptive to his schedule as well as his caregivers['] schedule" and "emotionally problematic" for him.
4. The dissent seems to believe that by making this observation, we somehow are devaluing or disregarding the evidence related to Harris's interactions and treatment of her older children. This is not the case. We agree that Harris's conduct related to the older children is relevant in this cause. See In re S.F., 32 S.W.3d 318, 322 (Tex. App.--San Antonio 2000, no pet.). We simply make this observation to place the evidence in context.
5. Caseworker Leslie Ontiveros testified that Harris tested positive for marihuana once, but Kellie Ragland testified that she "believed" Harris had tested positive two or three times. However, Ragland did not have any records to show more than one positive test, and she testified that she would not be surprised if Ontiveros testified that there was only one positive test. Harris denied any positive tests other than the one test after she admitted to smoking a marihuana cigarette shortly after she learned of her daughter's outcry and her three older children were removed.
6. Both Farrell and Michalek testified that Harris admitted to drug abuse in the past, but neither stated that she admitted to recent drug use. Michalek testified to the contrary, stating that Harris denied any recent drug abuse.
7. The Department took custody of N.H. at some point, but the record is somewhat unclear as to exactly when that occurred. Caseworker Rodrigo Gonzales testified that the Department attempted to remove N.H. in 2002 but that the trial court found that the Department did not have grounds to remove the child. He also testified that in 2003 he responded to a report that N.H. had been slightly injured in a fight between Harris and Cooks-Harris (he was struck by a telephone cord when Cooks-Harris pulled the phone away from Harris), but that neglectful supervision referral was "ruled out" because Harris had taken N.H. and gone to a women's shelter and was properly protecting N.H. After that incident, Harris sent Gonzales a copy of the protective order she obtained against Cooks-Harris and a copy of a medical report showing that she brought N.H. to a doctor to be sure he was alright. The Department removed N.H. again three weeks before trial, presumably because Harris had allowed Cooks-Harris to babysit N.H. in Harris's home, in violation of the protective order. The record is unclear whether, at the time of trial, a termination action had been filed or whether N.H. was in the custody of Harris or the Department.
8. The dissent states that Harris did not controvert the final order of termination related to her older children. However, Harris denied most of the Department's allegations and testified that she was not a drug addict, had not knowingly exposed her children to a sex offender, and had attempted to comply with the Department's reunification plan.
9. Ragland testified that the Department did not do any investigation of whether the house was actually a "crack house" and that she did not know whether the police ever raided the house.
10. The record reflects that during the first trial of this issue, one of the Department's witnesses broke rule 267 of the rules of civil procedure by talking to Department witnesses who had not
yet testified. As a result, the trial court declared a mistrial.
11. The dissent agrees that we must review the evidence under a legal-sufficiency standard but then goes on to conduct a factual-sufficiency review. The dissent states that "even when considered in the light most favorable to Harris, the evidence supports the trial court's presumed finding." (Emphasis added.) Thus, the dissent makes it clear that its primary approach is not to view the evidence as required but instead to re-weigh the evidence in a light favorable to the trial court, not the jury's verdict. The dissent states that "[w]e may not allow a determination of the best interest of the child to turn on personal preferences, speculative concepts of proper child rearing, or who 'deserves' the child," but this is exactly the kind of analysis the dissent then employs, showing its disfavor for Harris, her lifestyle, and her attitude toward the Department.
12. Although it is undisputed that Harris's parental rights to her three older children were terminated, Harris and her witnesses testified in opposition of much of the Department's evidence and allegations supporting the termination of her older children.
REVERSED AND RENDERED: Opinion by Justice Puryear
Dissent by Justice Patterson
Before Chief Justice Law, Justices Patterson and Puryear
03-05-00244-CV
Ramona Harris v. Texas Department of Family and Protective Services
Appeal from 207th District Court of Hays County
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 00-0684-A, HONORABLE DONALD V. HAMMOND, JUDGE PRESIDING
MAJORITY OPINION BY JUSTICE PURYEAR
Appellant Ramona Harris gave birth to C.C.H. on February 3, 2001. The Texas Department of Family and Protective Services first got involved with Harris in late 1999 and removed her three older children from her care in 2000. When C.C.H. was born, the Department immediately took custody of him and placed him in foster care with his older siblings. (1) The cause was submitted to a jury in October 2004, and the jury returned a verdict finding that Harris's parental rights to C.C.H. should not be terminated and that she should be named his managing conservator. The Department filed a motion for new trial, arguing that the jury's finding on conservatorship was against the great weight and preponderance of the evidence, manifestly unjust, and not in C.C.H.'s best interest. The child's attorney ad litem filed a motion asking the court to designate the Department as C.C.H.'s managing conservator.
Seven months later, in early April 2005, the trial court signed an order in accordance with the jury's finding that Harris's parental rights should not be terminated. However, the court went on to state that the jury's finding that Harris should be appointed managing conservator was "against the greater weight and degree of the credible evidence" and not in the child's best interest. The court named the Department as C.C.H.'s sole managing conservator and Harris as possessory conservator, with "supervised visitation . . . as has been in effect in the past." It is from this order that Harris appeals. She argues that the trial court erred in disregarding the jury's finding that she should be appointed C.C.H.'s managing conservator. She further argues that the trial court's judgment (1) did not make the findings necessary to name the Department as C.C.H.'s managing conservator, (2) granted relief not requested by the Department, and (3) did not grant relief that was in the child's best interest. We reverse the trial court's order.
Which statutes apply?
The cause before us involves the interaction of several sections of chapter 5 of the family code, including sections 105.002, 161.205, and 263.404. We must therefore determine how these statutes should be interpreted and applied and whether they can coexist or are in conflict. Harris argues that section 105.002 of the family code prohibited the trial court from disregarding the jury's finding as to conservatorship. See Tex. Fam. Code Ann. § 105.002 (West Supp. 2006). The Department, on the other hand, argues that the trial court did not err in entering its order, relying on section 161.205 of the family code, which it argues is a more specific statute that should control over section 105.002. See id. § 161.205 (West 2002).
Section 105.002 provides that in most suits affecting a parent-child relationship, (1) a party is entitled to a jury trial, and (2) the trial court may not contravene the jury's verdict on the appointment of managing or possessory conservators. Id. § 105.002(a), (c). In determining issues of conservatorship and possession of a child, the child's best interest must be the trial court's primary consideration. See id. § 153.002 (West 2002). There is a strong presumption that a parent should be appointed managing conservator unless that appointment is not in the child's best interest and would significantly impair the child's physical health or emotional development. Id. § 153.131(a) (West 2002); Lewelling v. Lewelling, 796 S.W.2d 164, 166-67 (Tex. 1990). Under chapter 161, which governs suits seeking to terminate a parent's relationship with her child, see Tex. Fam. Code. Ann. §§ 161.001-.211 (West 2002 & Supp. 2006), if a trial court does not terminate a parent's rights, it shall either deny the petition or "render any order in the best interest of the child." Id. § 161.205. The Department contends that section 161.205 authorized the trial court to disregard the jury's findings as to conservatorship and appoint the Department as managing conservator. We disagree.
When a child has been taken into the Department's care, the trial court must conduct periodic hearings to review conservatorship and a parent's attempts to regain custody of her child. See id. §§ 263.001-.503 (West 2002 & Supp. 2006). Under chapter 263, a trial court must render a final order within eighteen months of the Department's appointment as temporary managing conservator. (2) Id. § 263.401(a), (b) (West Supp. 2006). A final order is one that orders the child returned to the parent, terminates the parent-child relationship, names a relative or other person as the child's managing conservator, or appoints the Department managing conservator without terminating the parent's rights. Id. § 263.401(d). Section 263.404 allows a trial court to render a final order that does not terminate a parent's rights yet names the Department as managing conservator if the court finds (1) that the appointment of the parent as managing conservator would not be in the child's best interest because it would significantly impair the child's physical or emotional well-being and (2) that it is not in the child's best interest to appoint a relative or another person as the child's managing conservator. Id. § 263.404(a) (West 2002). In making that decision, the trial court should consider the child's age, needs, and desires, whether a child twelve or older has expressed strong feelings against termination or being adopted, and any special needs that would reduce the child's chances of being adopted. Id. § 263.404(b).
In construing a statute, we look to the legislature's intent, first examining the plain language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). The legislature enacted section 105.002 as part of subtitle A, "General Provisions," which governs all suits affecting the parent-child relationship. Contrary to the Department's contention, Texas courts have considered section 105.002 in several contexts, including termination, and have applied it in conjunction with statutes governing termination suits. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 653-54 (Tex. App.--Austin 2005, pet. denied) (section 105.002 applied in suit in which parents' rights were terminated and grandmother sought conservatorship); Corrales v. Department of Family & Protective Servs., 155 S.W.3d 478, 488 (Tex. App.--El Paso 2004, no pet.) (section 161.207, which requires appointment of managing conservator after parental rights are terminated, "must be read in conjunction with Section 105.002," and court "may not contravene a jury verdict concerning the appointment of a sole managing conservator"); In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.--San Antonio 1997, writ denied) (applying section 105.002 in suit asking whether father or guardian should be appointed managing conservator); see also Lenz, 79 S.W.3d at 13, 19-20 (applying section 105.002 to order imposing geographical limitation on children's residence).
The jury found, and the trial court entered judgment in conformity with that finding, that Harris's parental rights to C.C.H. should not be terminated. Once that decision was made, the only issue that remained was who should be named as managing conservator of C.C.H. A trial court that does not terminate a parent's rights in a termination suit must either dismiss the petition or enter an order in the child's best interest. Tex. Fam. Code Ann. § 161.205. In making its orders, the trial court may not contravene the jury's determination of conservatorship unless the jury's findings are not supported by the evidence. Lenz, 79 S.W.3d at 20 ("because we have concluded that there is legally sufficient evidence to support the jury's verdict in this case, we further conclude that the trial court improperly contravened the jury's verdict by imposing a geographical restriction on the boys' primary residence"); Taylor, 160 S.W.3d at 653-54; Rodriguez, 940 S.W.2d at 271; see also Corrales, 155 S.W.3d at 488 (court may not contravene jury verdict on sole managing conservator, and conservatorship decision is reviewed not for abuse of discretion but under traditional sufficiency standards); In re W.H.M., No. 01-00-01396-CV, 2003 Tex. App. LEXIS 8548, at *19-23 (Tex. App.--Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.) (holding that "jury's findings regarding . . . managing or possessory conservatorship had to be supported by a preponderance of the evidence," citing family code section 105.005, and noting that jury's custody determination is binding on trial court if supported by evidence); Brunson v. Brunson, 502 S.W.2d 578, 579 (Tex. Civ. App.--Fort Worth 1973, no writ) (applying predecessor to section 105.002 and holding that "in order for the jury verdict to be binding upon the court it must be supported by evidence of probative force"). We must conduct a traditional sufficiency review to determine whether the trial court erred in contravening the jury's conservatorship determination. See Lenz, 79 S.W.3d at 19-20; Brunson, 502 S.W.2d at 579-80.
Harris is attacking the trial court's disregard of a jury's finding in her favor on an issue on which the Department had the burden of proof. See In re W.G.W., 812 S.W.2d 409, 413 (Tex. App.--Houston [1st Dist.] 1991, no writ) (party seeking to bar natural parent from appointment as managing conservator must show that child's best interest "would be best served by the appointment of a non-parent"). Therefore, we ask whether there was legally sufficient evidence to support the jury's finding; if there was legally sufficient evidence, the trial court erred in contravening the jury's finding. See Lenz, 79 S.W.3d at 19-20; Brunson, 502 S.W.2d at 579; see also John Paul Mitchell Sys. v. Randall's Food Markets, Inc., 17 S.W.3d 721, 728 (Tex. App.--Austin 2000, pet. denied) ("We will uphold a trial court's judgment notwithstanding the verdict only if we determine that there is no evidence to support the jury's findings."). We view the evidence in the light most favorable to the jury's finding, indulging every reasonable inference that supports the finding, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 821-22 (Tex. 2005). If reasonable jurors could differ in their conclusions, we may not substitute our judgment for the jury's, and we must defer to the jury's determinations of the credibility of the witnesses, the weight to be given the testimony, and the resolution of evidentiary conflicts. Id. at 819-20, 822. In other words, the trial court could have contravened the verdict only if a reasonable fact-finder could not have resolved the factual disputes in favor of the verdict. See id. at 823 ("Judgment without or against a jury verdict is proper at any course of the proceedings only when the law does not allow reasonable jurors to decide otherwise."). Finally, in conducting our review, we must keep in mind the rebuttable statutory presumption that it is in a child's best interest for his parent, rather than a non-parent, to be appointed managing conservator. Tex. Fam. Code Ann. § 153.131; Lewelling, 796 S.W.2d at 166-67.
Sufficiency of the evidence supporting the jury's finding
C.C.H. was born on February 3, 2001. At the time he was born, the Department had been involved with Harris and her three older children through referrals dating back to late 1999. In mid-2000, the Department removed the three older children from Harris's care, and her parental rights to those children were terminated in October 2001. See Harris v. Texas Dep't of Protective & Regulatory Servs., No. 03-01-00643-CV, 2003 Tex. App. LEXIS 2842, at *1 (Tex. App.--Austin Apr. 3, 2003, no pet.) (memo. op.). C.C.H. was removed from Harris's care immediately after he was born and placed in the same foster home as his older siblings. When Harris's rights to her older children were terminated, the Department was named temporary managing conservator; the trial court did not name Harris as his possessory conservator. Although Harris requested visitation several times, the Department denied her requests because she was not a possessory conservator. (3) At the time of trial in October 2004, Harris had been allowed to visit C.C.H. three times.
Most of the Department's evidence related to her behavior with her older children because the Department had removed C.C.H. from Harris's custody shortly after his birth and limited her contact with him during the pendency of this suit. (4) Harris was referred to the Department in 1999, when her older daughter made an outcry that she had been sexually abused by Harris's boyfriend. Harris initially disbelieved her daughter but later acknowledged the abuse. The boyfriend later pled guilty to the charge and was sentenced to prison. Although she agreed not to allow the boyfriend who abused her daughter to have contact with the children, Harris brought the children with her to prison to visit and possibly confront him about the abuse. In May 2000, another referral was made, alleging that Harris was frequenting a "crack house," exposing her children to that dangerous environment, spending time with another known sex offender, and allowing him contact with her children. The Department took custody of the three older children at this point and later proceeded to seek the termination of her parental rights.
At trial, Department caseworkers testified that in their dealings with her related to her older children, she was uncooperative and confrontational. The Department initially attempted to allow Harris visits with her older children twice a month, but caseworkers testified that Harris did not cooperate, sometimes refused to attend visitations unless all three children would be there, and once left a visit early because she believed her rights were being violated. However, Harris had also completed many of the court-ordered requirements, including two parenting classes, a drug and alcohol screening, and a psychological assessment, and attended Alcoholics Anonymous meetings.
Caseworkers testified that Harris sometimes refused Department requests for drug testing, once tested positive for marihuana, (5) and admitted to smoking marihuana that one time; Harris and C.C.H. tested negative for illegal substances when C.C.H. was born. Caseworker Leslie Ontiveros testified that in May 2000, the police told her that Harris had gone to a "known crack house" and had brought her children to a house where a sex offender named Elvis Harris lived. Ontiveros believed that Elvis Harris, who was deceased at the time of trial, was related to Harris's husband's family, although Harris, her husband, and her father-in-law denied this. Although Elvis Harris was characterized as a known sex offender, Ontiveros admitted that his conviction "may have" occurred after Harris's children were removed, and Harris introduced records showing that Elvis Harris was convicted in 2002, three years after the Department alleged endangerment because Harris had "exposed" her children to him and one year after her rights to her older children were terminated.
Scott Johnson, a San Marcos police detective, testified that he met Harris and her children in late 1999, after Harris's daughter made her outcry. He also dealt with Harris more recently, when the Department removed N.H. He said that he saw no signs that Harris had neglected or injured her children. He said that N.H. was clean and that Harris's house was "fairly well kept," although it looked like Harris was packing to move. Gayle Michalek, a licensed professional counselor who worked with Harris from August to December 2000, testified that Harris admitted to substance abuse starting in high school, but denied any recent use. (6) She also testified that Harris attended AA or NA meetings about three times a month.
Chris Farrell, another of Harris's therapists, met with her in February, March, and April 2001, starting very shortly after C.C.H. was born and removed from her care. Farrell testified that Harris told him that her mother was a drug addict when Harris was a child and that Harris had been in foster care when she was young. He testified that she was very angry, expressed violent thoughts toward the Department, and believed she was being persecuted by the Department. During their sessions, Farrell attempted to point out that Harris's anger and attitude toward the Department were not helping her regain custody of her children. Farrell thought he was building rapport and making progress with Harris, but after six sessions, she got angry and left when he
ran late with another client and never returned.
Farrell testified that Harris, who was working in a nursing home at the time, related a conversation she had with the daughter of a patient. The woman was angry and threatening, and Harris responded by reminding the woman "that her mother was in [Harris's] care." Farrell took this remark to mean that Harris was saying that "she could have hurt the woman's mother in retaliation for this woman calling [Harris] and threatening her." Harris then made what Farrell took to be similar threats towards Department caseworkers, saying they should hope never to be in a nursing home where Harris worked. Farrell said he was "shocked" to hear that level of anger and violence, saying that he was accustomed to clients being angry and venting about the Department with general remarks such as, "I'm so angry I could kill them." Farris, however, felt that Harris's remarks were very specific and showed him that Harris "was thinking in her mind about how she could hurt this woman's mother." Farrell believed Harris was "very angry" and violent, made poor choices for which she did not take responsibility, blamed others for her problems, and "retaliate[d] against others when they fail to conform to her wishes and desires." Farrell testified that during their fourth session he told Harris that he could be "subpoenaed to testify against her and use whatever confidential information she gave [him] against her."
Sherryl Boyd, the court-appointed special advocate for C.C.H., testified that he was happy and safe in his foster home with his siblings. She testified that he had not known any other home since his birth almost four years earlier. She also testified about some of the negative things the older children told her about living with Harris and said that the children told her that Harris was neglectful and violent and used drugs in front of them. C.C.H.'s foster mother, who with her husband has adopted the older three children, testified that C.C.H. was doing well in their home and was very attached to his oldest brother. She believed it was in his best interest to terminate Harris's rights so that he could be adopted into their family.
Cleiffort Cooks-Harris, Harris's estranged husband, denied that he or Harris used drugs or abused C.C.H. or N.H., their youngest son, and he felt that the Department was harassing him and Harris. (7) Cooks-Harris, who is African-American, testified that the Department got involved in his life only after he married Harris, who is Caucasian. At the time of trial, Cooks-Harris was in jail for violating Harris's protective order against him, which he thought had been removed, when he took care of N.H. in Harris's home while Harris worked. The protective order provided Cooks-Harris with visitation rights to N.H. and allowed Cooks-Harris and Harris to agree to additional visitation. However, the order bars Cooks-Harris from entering Harris's home; visitation must take place at another location. Cooks-Harris testified that Elvis Harris was not a relative, that Elvis's brother was married to one of Cooks-Harris's cousins, and that he never knew Elvis had been convicted of a sex crime. Cooks-Harris's father testified that he did not think Harris or his son used drugs. He also testified that the alleged crack house was instead a relative's home and that he never knew that Elvis Harris was a sex offender.
Harris's mother, Karen Bryant, testified that Harris had attended AA and NA meetings, got an AA sponsor, and did not abuse drugs or alcohol. She denied many of the Department's allegations, including allegations that she herself was a drug addict. Bryant denied any drug use and testified that her mother, Harris's grand-mother, was an alcoholic and drug abuser and that Bryant herself was very opposed to drug use. She believed Harris was a good mother who tended to spoil her children but never neglected or abused them. She testified that she thought it was in C.C.H.'s best interest for him to be raised by Harris. Karen Rust, Harris's employer, testified that Harris had worked for her for more than two and one-half years, providing in-home care for elderly and disabled patients. She said that Harris was an excellent and professional care giver and that she had never received any complaints about Harris or reports that Harris had threatened a patient. Rust testified that Harris had described her dealings with the Department and told Rust that she thought the Department was "being overly aggressive and unfair." One of Harris's neighbors testified that he never saw any evidence of drug use by Harris or Cooks-Harris or any signs that N.H. was abused or neglected.
Taylor Skaar, a domestic violence counselor at a women's shelter, testified that Harris used the shelter "as a place to get help." Skaar said Harris had the paperwork to initiate a divorce and talked about taking N.H. and moving to get away from both Cooks-Harris and the Department but was also conflicted about whether to reconcile with her husband and abandon the protective order against him. Skaar did not find Harris to be delusional or paranoid and said Harris was angry and believed she was being abused by the Department. Skaar thought Harris struggled with "being poor, not having money, not having a support system, and still being required to take care of her child and to earn money." Skaar heard similar complaints from other women about the Department's requirements. Skaar had never viewed Harris as violent and could not imagine her threatening to harm anyone. She had seen Harris angry but never aggressive or "explosively" angry. Skaar testified that Harris did not direct her anger at her children or Skaar, but instead at the Department and the situation in which she felt trapped. Skaar testified that she never saw any signs that N.H. was abused or neglected, saying, "One thing I know for sure is that Ramona really cares about her child."
Harris testified and denied most of the Department's charges leveled against her in this and the earlier termination proceeding. (8) She admitted that when her daughter made her outcry of abuse by Harris's former boyfriend, Harris initially doubted the accusation because she thought her daughter, who was not always honest and was a "daddy's girl," was trying to drive Harris back to her ex-husband. She later came to believe the outcry and recognized that bringing her children to see the abusive boyfriend in jail was a poor choice. She testified that although she learned later that her boyfriend was on probation for robbery, she did not know that at the time. Harris denied telling Farrell that her mother was a drug addict. She further denied using crack cocaine but admitted to smoking marihuana once shortly after her daughter's outcry and her children's removal. She denied bringing her children to a crack house and testified that the alleged crack house was actually the home of Cooks-Harris's uncle where the Harris family socialized, and she, Cooks-Harris, and Cooks-Harris's father testified that the uncle was neither a drug dealer nor user. (9) She denied threatening anyone and said that her remark to Farrell meant that she thought the Department staffers should "remember the golden rule" and should be nice to people because "one day they might need you, and you might treat them the same way that they're treating you." She also said that Farrell told her that "it was best for [her] to just quit and give [her] children away"; after that remark, she felt he was not working for or helping her. She denied refusing to visit her children and said she "might have been late for a visit." Harris had worked for the same care-giver agency for several years and made between $15,000 and $19,000 a year.
Harris testified that she attempted to vacate the protective order because she needed Cooks-Harris's help to babysit for N.H. She called the assistant district attorney who had helped her obtain the protective order and was told that the attorney "would look into it," which she thought meant the protective order would be dropped. She stated that she obtained the protective order after a fight with Cooks-Harris, but denied alleging that he had physically abused her. She said she called the police out of anger but then realized that the Department would try to take N.H. away from her. She said she went to the shelter for safety from the State, not from Cooks-Harris. She said she had filed for divorce from Cooks-Harris and although "to a degree" she was "wanting to reconcile," she and Cooks-Harris both testified that they intended to go through with the divorce. Harris also denied that she had "subjected" her children to a known sex offender. She testified that in 1999, when she heard that Elvis Harris might be a sex offender, she went to the Sheriff's Office to inquire, and was told that he was not included in the sex offender registry. Harris introduced evidence showing that not until 2002, well after her inquiry, was Elvis Harris convicted of a sex offense.
In determining the placement of a child, the child's best interest is the primary consideration. Tex. Fam. Code Ann. § 153.002; Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet.). In making that determination, the fact-finder is to consider the following factors: the child's desires, the child's present and future emotional and physical needs, emotional and physical danger posed to the child now and in the future, the parenting abilities of the individuals seeking custody, programs available to assist the would-be parents, the individuals' or agency's plans for the child, the stability of the proposed homes, any acts or omissions by the parent that might show an improper parent-child relationship, and any excuse for such acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
Most of the Department's evidence related to Harris's behavior with her older children, and the jury could have determined that leaving C.C.H. in the Department's care would be in C.C.H.'s best interests. However, the jury did not make that finding. Instead, it found that naming Harris as managing conservator would best serve the child's interests. That decision only needed to be, and was, supported by legally sufficient evidence.
It was not the trial court's role to re-weigh the evidence; the court was instead limited to ensuring that some credible evidence supported the jury's findings. See Tex. Fam. Code Ann. § 105.002(c)(1). Aside from stating that the jury's finding in favor of Harris was "against the greater weight and degree of the credible evidence," however, the trial court made no findings of fact and provided no details of the manner in which the jury's finding was unreasonable or unsupported by legally sufficient evidence. Nor did the court find that naming Harris as managing conservator would significantly impair C.C.H.'s physical or emotional well-being. See id. § 263.404(a)(1). Further, the trial court was not empowered to disregard the jury's verdict merely based on factual sufficiency; the court could only controvert the verdict if it found the verdict was not supported by legally sufficient evidence. See Tex. Fam. Code Ann. § 105.002(c); Lenz, 79 S.W.3d at 19-20. However, by its finding that the jury's verdict was "against the greater weight and degree of the credible evidence," the trial court made a finding that the verdict was against the preponderance of the evidence. See, e.g., Columbia Rio Grande Reg'l Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 864 n.4 (Tex. App.--Corpus Christi 2006, pet. filed) ("preponderance of the evidence" is defined in Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises, & Products PJC 40.3 (2003), as "the greater weight and degree of credible evidence"). Thus, the trial court made it clear that it conducted a factual-sufficiency review, not a legal-sufficiency review. See Long v. Long, No. 08-05-00250-CV, 2007 Tex. App. LEXIS 1111, at *6 (Tex. App.--El Paso Feb. 15, 2007, no pet. h.) (to establish error, wife "must challenge that the characterization is against the great weight and preponderance of the evidence [a factual sufficiency complaint] or that separate property status was established as a matter of law [a legal sufficiency complaint]"). This overstepped the trial court's proper role in reviewing the jury's verdict.
Harris has had stable employment for a significant period of time. She denied using crack cocaine, one of the allegations frequently leveled against her by the Department, had never tested positive for cocaine, and produced testimony by several witnesses that they had never seen her using cocaine or acting as if she were under the influence of an illegal drug. Harris produced testimony that when N.H. was in her care, he was well cared for and not neglected or abused. Although it is true that C.C.H. has been in his foster home since his birth and has not had visitation with Harris, it was the Department's decision to deny all visitation that resulted in the lack of contact between C.C.H. and his mother. There was no evidence of any improper behavior by Harris directed at or related to C.C.H., and Harris and her witnesses denied most of the Department's allegations related to her older children. It was for the jury, as sole judge of the credibility of the witnesses, to weigh the credibility, decide any evidentiary conflicts, and determine the weight to be given the evidence. See City of Keller, 168 S.W.3d at 819-20. When the jury examined the evidence, it was obligated to consider the rebuttable presumption that C.C.H.'s best interest would be served by allowing Harris, his natural parent, to raise him. See Tex. Fam. Code Ann. § 153.131; Lewelling, 796 S.W.2d at 167 ("It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child."). We cannot hold that the jury acted unreasonably in reaching its factual determinations. See City of Keller, 168 S.W.3d at 819-20, 822-23.
Certainly this is a difficult case with no easy answers. C.C.H. has been in a comfortable home with his siblings since birth. However, he has also been denied contact with his natural parent since October 2001, and this lack of contact is a result of Department decisions, not Harris's decisions or conduct since the October 2001 trial or any indifference on her part. See Lewelling, 796 S.W.2d at 168 n.9. We agree with the dissent that the evidence related to C.C.H.'s best interest "was sparse," but this is in part due to the Department's decision to deny Harris any contact with him since October 2001. Further, it was misconduct by Department witnesses that caused the first trial of this case to end in a mistrial, which has extended the delay in resolving this matter. (10) Harris may be difficult for the Department to work with but that cannot be grounds for cutting off contact between a child and his natural parent whose rights have not been terminated.
The dissent spends a great deal of time discussing the evidence that would support a finding of termination and the standards and statutes that apply to a finding of termination. However, in this case, the jury found and the trial court agreed that Harris's parental rights should not be terminated. We must ask only whether there was any evidence on which the jury could base its decision to award managing conservatorship to Harris, but instead, the dissent conducts a result-oriented inquiry, bending the standards of review in order to reach a decision more palatable to the dissent. (11) We may not act in such a result-oriented manner and instead must conform our inquiry to the standards set out in the family code and by the supreme court. We may not substitute our judgment for that of the jury on matters of evidentiary conflict and must apply the law the same in this case as we would in any other.
Finally, we take great issue with the dissent's assertion that because Harris's rights to her older children were terminated, the "undisputed evidence" (12) "conclusively establishes a ground for termination that supports the trial court's disregard of the jury finding." The dissent goes on to say that "[b]ecause this evidence also constitutes undisputed evidence that Harris's parental relationship endangered the safety of her children and that termination was in their best interest, it is conclusive as well on the finding of best interest as it relates to the issue of C.C.H.'s conservatorship." (Citations omitted.) The dissent's approach would mean that once a parent commits an act permitting termination, there is no need to conduct further inquiry into best interest, something section 161.001(2) specifically requires. Further, this would mean that if a parent ever has his or her parental rights terminated, even if it occurred ten years earlier or was based on false testimony, that parent's parental rights to other children could be terminated without any factual inquiry at all. Even if his or her rights were not terminated, the parent could never hope to regain conservatorship. This misguided approach would drastically alter the termination statutes' provisions and would shift the burden of proof to parents defending themselves against termination cases, rather than requiring the State to show by clear and convincing evidence both grounds for termination and the child's best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2006); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Conclusion
Because legally sufficient evidence supported the jury's finding that it was in C.C.H.'s best interest for Harris to be named sole managing conservator, the trial court erred in contravening that finding and instead naming the Department as managing conservator. We reverse the trial court's order and render judgment in conformity with the jury's finding that Harris should be named C.C.H.'s managing conservator.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear;
Dissenting Opinion by Justice Patterson
Reversed and Rendered
Filed: June 15, 2007
1. Harris's parental rights to her older children were terminated in an earlier proceeding. See Harris v. Texas Dep't of Protective & Regulatory Servs., No. 03-01-00643-CV, 2003 Tex. App. LEXIS 2842, at *1 (Tex. App.--Austin Apr. 3, 2003, no pet.) (memo. op.). The Department first sought to terminate Harris's rights to C.C.H. in that proceeding but could not yet establish grounds for termination as to C.C.H. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2006) (grounds for termination). The trial court's decree terminated Harris's rights to her older children and appointed the Department as C.C.H.'s managing conservator. The older children have been adopted by their foster parents, the same parents fostering C.C.H. Harris also has one younger child, N.H., who was removed from her care by the Department shortly before this trial but was not part of this proceeding.
2. An earlier trial on the termination of Harris's rights to C.C.H. ended in a mistrial, and as a result, these proceedings extended past the eighteen-month deadline for a termination suit. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2006). Shortly before trial, Harris filed a motion to dismiss the termination suit for lack of jurisdiction "as provided for by Chapter 263 of the Texas Family Code." The trial court denied the motion, and Harris does not discuss this issue on
appeal.
3. The dissent states that "[f]or reasons not in the record, Harris was generally denied visitation." This is incorrect. The record reflects that Harris had a few visits with C.C.H. before the termination trial related to the older children, but after that trial, the trial court entered a final order terminating Harris's rights to her older children and appointing the Department C.C.H.'s managing conservator. Because the order did not appoint Harris as possessory conservator, the Department refused to allow her visitation from that point on. Former Department caseworker Kellie Ragland testified to that effect, and the record includes a letter to
Harris from Ragland dated October 21, 2002, in which Ragland stated that Harris was not entitled to visitation with C.C.H. and that visitation would be "disruptive to his schedule as well as his caregivers['] schedule" and "emotionally problematic" for him.
4. The dissent seems to believe that by making this observation, we somehow are devaluing or disregarding the evidence related to Harris's interactions and treatment of her older children. This is not the case. We agree that Harris's conduct related to the older children is relevant in this cause. See In re S.F., 32 S.W.3d 318, 322 (Tex. App.--San Antonio 2000, no pet.). We simply make this observation to place the evidence in context.
5. Caseworker Leslie Ontiveros testified that Harris tested positive for marihuana once, but Kellie Ragland testified that she "believed" Harris had tested positive two or three times. However, Ragland did not have any records to show more than one positive test, and she testified that she would not be surprised if Ontiveros testified that there was only one positive test. Harris denied any positive tests other than the one test after she admitted to smoking a marihuana cigarette shortly after she learned of her daughter's outcry and her three older children were removed.
6. Both Farrell and Michalek testified that Harris admitted to drug abuse in the past, but neither stated that she admitted to recent drug use. Michalek testified to the contrary, stating that Harris denied any recent drug abuse.
7. The Department took custody of N.H. at some point, but the record is somewhat unclear as to exactly when that occurred. Caseworker Rodrigo Gonzales testified that the Department attempted to remove N.H. in 2002 but that the trial court found that the Department did not have grounds to remove the child. He also testified that in 2003 he responded to a report that N.H. had been slightly injured in a fight between Harris and Cooks-Harris (he was struck by a telephone cord when Cooks-Harris pulled the phone away from Harris), but that neglectful supervision referral was "ruled out" because Harris had taken N.H. and gone to a women's shelter and was properly protecting N.H. After that incident, Harris sent Gonzales a copy of the protective order she obtained against Cooks-Harris and a copy of a medical report showing that she brought N.H. to a doctor to be sure he was alright. The Department removed N.H. again three weeks before trial, presumably because Harris had allowed Cooks-Harris to babysit N.H. in Harris's home, in violation of the protective order. The record is unclear whether, at the time of trial, a termination action had been filed or whether N.H. was in the custody of Harris or the Department.
8. The dissent states that Harris did not controvert the final order of termination related to her older children. However, Harris denied most of the Department's allegations and testified that she was not a drug addict, had not knowingly exposed her children to a sex offender, and had attempted to comply with the Department's reunification plan.
9. Ragland testified that the Department did not do any investigation of whether the house was actually a "crack house" and that she did not know whether the police ever raided the house.
10. The record reflects that during the first trial of this issue, one of the Department's witnesses broke rule 267 of the rules of civil procedure by talking to Department witnesses who had not
yet testified. As a result, the trial court declared a mistrial.
11. The dissent agrees that we must review the evidence under a legal-sufficiency standard but then goes on to conduct a factual-sufficiency review. The dissent states that "even when considered in the light most favorable to Harris, the evidence supports the trial court's presumed finding." (Emphasis added.) Thus, the dissent makes it clear that its primary approach is not to view the evidence as required but instead to re-weigh the evidence in a light favorable to the trial court, not the jury's verdict. The dissent states that "[w]e may not allow a determination of the best interest of the child to turn on personal preferences, speculative concepts of proper child rearing, or who 'deserves' the child," but this is exactly the kind of analysis the dissent then employs, showing its disfavor for Harris, her lifestyle, and her attitude toward the Department.
12. Although it is undisputed that Harris's parental rights to her three older children were terminated, Harris and her witnesses testified in opposition of much of the Department's evidence and allegations supporting the termination of her older children.
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