Opinion
NO. 12-16-00001-CV
06-08-2016
IN THE INTEREST OF A.D.H.-G., A CHILD
APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
J.H. and R.D.G. appeal the termination of their parental rights. In seven and nine issues respectively, they challenge the trial court's termination order. We affirm.
BACKGROUND
J.H. and R.D.G. are the parents of A.D.H.-G., born January 9, 2014. On April 8, 2014, the Department of Family and Protective Services (the Department) filed an original petition for protection of A.D.H.-G., for conservatorship, and for termination of J.H.'s and R.D.G.'s parental rights. The Department was appointed temporary managing conservator of the child. The foster parents, J.A.T. and S.L.T., filed a petition in intervention, for termination of the parent-child relationship of both parents, and for adoption of the child.
At the conclusion of the trial on the merits, the jury found, by clear and convincing evidence, that J.H.'s and R.D.G.'s parental rights should be terminated. Thereafter, the trial court found, by clear and convincing evidence, that J.H. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsections (D), (E), (M), and (O) of Texas Family Code Section 161.001(b)(1). The trial court also found, by clear and convincing evidence, that R.D.G. had engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), (N), and (O) of Section 161.001(b)(1). And finally, the trial court found that termination of the parent-child relationship between A.D.H.-G. and his parents is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between A.D.H.-G. and his parents be terminated. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In their first, second, third, and fourth issues, respectively, J.H. and R.D.G. argue that the evidence is legally and factually insufficient to support the jury's finding that they had engaged in one or more of the acts or omissions necessary to support termination of their parental rights. More specifically, J.H. and R.D.G. contend that the evidence does not support termination of their parental rights under either subsections (1)(D) (endangerment by conditions or surroundings) or (1)(E) (endangerment by conduct) of Texas Family Code Section 161.001(b). However, J.H. does not challenge the jury's findings on the grounds for termination alleged under subsections 1(M) (prior termination of her parental rights to another child) or (1)(O) (failure to comply with a court-ordered service plan). R.D.G. does not challenge the jury's findings on the grounds for termination alleged under subsections 1(N) (constructive abandonment) or (1)(O) (failure to comply with a court-ordered service plan). Further, neither parent challenges the jury's finding that termination of their parental rights is in A.D.H.-G.'s best interest.
A finding of only one ground for termination alleged under Section 161.001(b)(1) is sufficient to support a judgment of termination. In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). Thus, to be successful on appeal, J.H. and R.D.G. must establish that the trial court's findings on all the Department's pleaded grounds are unsupported by the evidence. See Fletcher v. Dep't of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2009, no pet.). When a parent does not challenge an independent ground that may support an order of termination, and the trial court found that termination was in the child's best interest, we cannot address any of the grounds for termination. See In re A.V., 113 S.W.3d 355, 361-62 (Tex. 2003); Fletcher, 277 S.W.3d at 64. Instead, we must overrule the challenges the parent has chosen to assert. See In re A.V., 113 S.W.3d at 361-62; Fletcher, 277 S.W.3d at 64.
Because J.H. and R.D.G. do not challenge every ground upon which the jury could have based its decision to terminate their parental rights or the best interest finding, we do not address the unchallenged findings or the grounds they chose to challenge in their briefs. Accordingly, we overrule J.H.'s and R.D.G.'s first, second, third, and fourth issues.
JURY CHARGE—PREDICATE GROUNDS
In J.H.'s sixth and seventh issues, and in R.D.G.'s eighth and ninth issues, they argue that the trial court erred in submitting two predicate grounds for termination in the jury charge, i.e., subsections (1)(D) and (1)(E) of Section 161.001(b), over their objections. Standard of Review and Applicable Law
We review challenges to the jury charge under an abuse of discretion standard. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). The trial court abuses its discretion only when it acts without reference to any guiding principles. Id. "In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions." TEX. R. CIV. P. 277. Absent extraordinary circumstances, the court must submit broad form questions. E.B., 802 S.W.2d at 649.
Although multiple grounds for termination are submitted to a jury in a standard broad-form question, only one predicate finding is necessary under Section 161.001(1)(b) to support a judgment of termination when there is also a finding that termination is in the child's best interest. See In re A.V., 113 S.W.3d at 362; Spurck v. Tex. Dep't of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin 2013, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.). "If multiple grounds for termination are alleged and the trial court submitted the termination issue using a broad-form question asking the jury whether the parent-child relationship should be terminated, the jury's finding will be upheld on any ground supporting the finding." King v. Tex. Dep't of Protective & Regulatory Servs., No. 08-03-00100-CV, 2004 WL 1505703, at *6 (Tex. App.—El Paso July 2, 2004, no pet.) (mem. op.) (citing E.B., 802 S.W.2d at 649). The controlling question is whether the parent-child relationship between the parent and the child should be terminated, not what specific ground or grounds the jury relied on to answer affirmatively the questions posed. See E.B., 802 S.W.2d at 649. Consequently, the jury is not required to specify the basis for its termination finding. See id.Analysis
Here, the Department alleged multiple grounds for termination for each parent, including subsections (1)(D) and (1)(E). At trial, J.H. and R.D.G. objected, contending the evidence is legally insufficient to support grounds (1)(D) and (1)(E). They requested that those grounds be excluded from the charge, but the trial court denied their requests. Ultimately, the jury charge included four predicate grounds for termination for each parent. It also included a broad-form submission of the controlling question for each parent: whether the parent-child relationship between that parent and the child should be terminated. The jury was not asked to specify the grounds on which the termination finding for each parent was based.
In their briefs, J.H. and R.D.G. contend that because the broad-form question was submitted to the jury, it is impossible to determine which statutory ground the jury found to be true by clear and convincing evidence. They urge that inclusion of the (1)(D) and (1)(E) grounds created confusion, misled the jury, and erroneously allowed the jury to rely on grounds that are unsupported by the evidence.
As we noted in our discussion of J.H.'s and R.D.G.'s first four issues, J.H. has not challenged the sufficiency of the evidence to support termination of her parental rights under subsections 1(M) or (1)(O). Nor has R.D.G. challenged the sufficiency of the evidence to support termination of his parental rights under subsections 1(N) or (1)(O). Because these grounds are unchallenged, they support the jury's termination findings. See Fletcher, 277 S.W.3d at 64. Therefore, even if the trial court erred by including grounds 1(D) and 1(E) in the jury charge, the error is harmless. See In re A.V., 113 S.W.3d at 361-62; see also TEX. R. APP. P. 44.1 (error of law not reversible error unless it probably caused rendition of improper judgment).
We overrule J.H.'s sixth and seventh issues, and R.D.G.'s eighth and ninth issues.
JURY CHARGE—MANAGING CONSERVATOR
In J.H.'s fifth issue, she argues that the trial court erred in failing to instruct the jury to consider her great-aunt and her aunt as permanent managing conservators of the child. Standard of Review
We review a trial court's decision to submit or refuse a particular jury instruction under an abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its discretion when it acts unreasonably or "without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). "The trial court has broad discretion in submitting jury questions, subject only to the limitation that controlling issues of fact must be submitted to the jury." Ayala v. Tex. Dep't of Family &Protective Servs., No. 03-09-00121-CV, 2010 WL 3672351, at *3 (Tex. App.—Austin Sept. 16, 2010, no pet.) (mem. op.); see also Triplex Comms. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995) ("If an issue is properly pleaded and is supported by some evidence, a litigant is entitled to have controlling questions submitted to the jury."). When submitting a jury charge, the trial court is afforded more discretion when submitting instructions than when submitting questions. In re A.R., 236 S.W.3d 460, 478 (Tex. App.—Dallas 2007, no pet.). Applicable Law
J.H. relies on Section 263.404 of the Family Code to support her contention that the trial court should have submitted her requested instruction. TEX. FAM. CODE ANN. § 263.404 (West Supp. 2015). This section is entitled "Final Order Appointing Department as Managing Conservator Without Terminating Parental Rights." It provides as follows:
(a) The court may render a final order appointing the department as managing conservator of the child without terminating the rights of the parent of the child if the court finds that:
See id.Analysis(1) appointment of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development; and
(2) it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator.
The jury question at issue asked if the Department, J.H., R.D.G., or the foster parents should be named A.D.H.-G.'s managing conservator. At trial, J.H. requested that the question also include her great-aunt and her aunt as possible managing conservators. She asserts that according to Section 263.404, a jury is permitted to appoint a nonparty relative as permanent managing conservator of a child. By its plain language, Section 263.404 applies only when the trial court does not order termination of parental rights. In re J.A.J., 243 S.W.3d 611, 615 (Tex. 2007). It does not apply when the trial court terminates parental rights. In re D.O., 338 S.W.3d 29, 38 (Tex. App.—Eastland 2011, no pet.). Here, the jury terminated both J.H.'s and R.D.G.'s parental rights. Therefore, Section 263.404 does not apply in this case.
Additionally, J.H. contends that the trial court's failure to include a question in the charge relating to her great-aunt and aunt as potential permanent managing conservators deprived the jury of a vehicle by which it could choose not to terminate her parental rights and, instead, place A.D.H.-G. with relatives. In similar cases, appellate courts have determined that the controlling question in parental termination cases is whether the parent's rights should be terminated. See E.B., 802 S.W.2d at 649; In re J.T.G., 121 S.W.3d 117, 129 (Tex. App.—Fort Worth 2003, no pet.) ("In parental termination cases, the controlling question is whether the relationship between the parent and each child should be terminated."). A trial court that asks the controlling question, i.e., termination, does not abuse its discretion by refusing to submit additional questions concerning conservatorship. See E.B., 802 S.W.2d at 649; see also In re J.T.G., 121 S.W.3d at 129 ("It is well settled law that a jury charge that tracks the statutory language and then asks the controlling question does not amount to an abuse of discretion."); J.A.B. v. Tex. Dep't of Family & Protective Servs., No. 03-13-00273-CV, 2013 WL 4487513, at *2 (Tex. App.—Austin Aug. 14, 2013, pet. denied) (mem. op).
Because the trial court asked the controlling question concerning termination of J.H.'s parental rights, it did not abuse its discretion by refusing to submit her version of the jury question concerning managing conservatorship. We overrule J.H.'s fifth issue.
ADMISSION OF EVIDENCE
In his fifth, sixth, and seventh issues, R.D.G. argues that the trial court abused its discretion by admitting evidence of his prior convictions, drug test results, and J.H.'s affidavit. Standard of Review and Applicable Law
We review a trial court's evidentiary rulings for abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if its actions are arbitrary and unreasonable. Downer, 701 S.W.2d at 241-42. We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Malone, 972 S.W.2d at 43.
For the admission of evidence to constitute reversible error, the complaining party must show that (1) the trial court committed an error, and (2) the error was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. State v. Cent. Expressway Sign Assoc., 302 S.W.3d 866, 870 (Tex. 2009); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); The Burrescia Fam. Revocable Living Trust v. City of Dallas, No. 05-14-01311-CV, 2016 WL 1393989, at *2 (Tex. App.—Dallas Apr. 7, 2016 pet. filed) (mem. op.); seealso TEX. R. APP. P. 44.1(a)(1). In making this determination, a court must review the entire record. Cent. Expressway Sign Assocs., 302 S.W.3d at 870.
A successful challenge to a trial court's evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence admitted. Nissan Motor Co., Ltd. V. Armstrong 145 S.W.3d 131, 144 (Tex. 2004); Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Whether the erroneous admission of evidence is harmful is more a matter of judgment than precise measurement. Nissan Motor Co., 145 S.W.3d at 144.
Moreover, erroneously admitting evidence "will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling." Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)). In other words, an error in the admission of evidence is deemed harmless if the same or similar evidence was introduced without objection. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Breof BNK Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 67 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Erroneous admission of evidence is harmless if it is merely cumulative. See Nissan Motor Co., 145 S.W.3d at 144. Therefore, "counsel must object every time allegedly inadmissible evidence is offered." Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). R.D.G.'s Prior Convictions
At trial, the Department offered certified copies of judgments of conviction for R.D.G. in Anderson County, Texas. Exhibit 15 is an October 7, 2014 judgment of conviction for possession of marijuana that occurred on December 27, 2013. Exhibit 16 is a December 1, 2014 judgment of conviction for tampering with or fabricating physical evidence with the intent to impair its verity, legibility, and availability as evidence. This offense occurred on December 26, 2013. R.D.G.'s attorney objected to both exhibits, arguing that there was no evidence of any kind to establish the proper predicate that the person named in these judgments was R.D.G. Therefore, he contended, the exhibits were not relevant. The trial court overruled R.D.G.'s objections and admitted exhibits 15 and 16.
R.D.G. argues that the Department offered no proof that he was the person named in the judgments. But even if the trial court erred in admitting the judgments, J.H. and two Department workers testified about R.D.G.'s criminal history without objection.
J.H. testified that R.D.G. went to jail on December 26, 2013, because he possessed marijuana. She also testified that she bonded R.D.G. out of jail three months after A.D.H.-G. was born in January 2014. Sara Gatlin, a Department conservatorship worker, stated that R.D.G. was in jail when she presented him with a safety plan. Jessica Walker, a Department supervisor, testified that R.D.G. was "constantly engaging in criminal activities." She said that R.D.G. was released from jail in November or December 2014, was arrested on October 7, 2015, during the month that trial began, and is currently in jail and facing prison. This testimony renders harmless any error the trial court may have committed by admitting the judgments of conviction. See Volkswagen of Am, Inc., 159 S.W.3d at 907; Breof BNK Tex., L.P., 370 S.W.3d at 67. R.D.G.'s Drug Test Results
At trial, the Department offered an affidavit to authenticate business records from the Texas Alcohol and Drug Testing Service, Inc. Exhibit 13 contains the results of two drug tests administered to R.D.G. on April 22, 2014. One was positive for marijuana, and the other was positive for marijuana and methamphetamines. R.D.G.'s attorney objected, stating that the Department did not establish the proper predicate for this exhibit because it failed to show the proponent of this evidence was qualified and reliable, and that the evidence was relevant. The trial court admitted the evidence.
In his brief, R.D.G. argues that the Department did not establish the necessary predicate to introduce this exhibit for admission. We agree. There is no evidence to show that the sponsoring witness had personal knowledge of how the tests were conducted. See In re K.C.P., 142 S.W.3d 574, 580 (Tex. App.—Texarkana 2004, no pet.); see also TEX. R. EVID. 803(6) (business records not admissible under Rule 803(6) if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness"). There is no evidence regarding the qualifications of the persons who tested the samples, the types of tests administered, or whether such tests were standard for the particular substance. See In re K.C.P., 142 S.W.3d at 580. Also, there is no evidence about the types of devices used to conduct the tests or the methods used by the independent laboratory that conducted the tests. See id. Further, there is no evidence to show that the devices used to conduct the tests were properly supervised, maintained, or operated by a person who was competent to do so. See id. And the Department made no effort at trial to provide this information to the court through any other method. See id. Thus, there is insufficient indicia of trustworthiness or reliability to bring those drug tests results within the business records exception to the hearsay rule. See id.;Philpot v. State, 897 S.W.2d 848, 852 (Tex. App.—Dallas 1995, pet. ref'd); see also TEX. R. EVID. 803(6).
But even if the trial court erred in admitting the results of the drug tests, J.H., two Department workers, and the CASA volunteer testified about R.D.G.'s drug history without objection. J.H. testified that R.D.G. went to jail on December 26, 2013, because he had possessed marijuana. She stated that he smoked K-2, fake marijuana, on March 30, 2014, when they were both arrested for family violence. Cecelia Vasquez, a Department investigator, testified that she investigated J.H. and R.D.G. beginning in March 2014. During her investigation, she met with R.D.G. who informed her that he and J.H. used drugs, i.e., methamphetamine, during J.H.'s pregnancy with A.D.H.-G. Gatlin stated that J.H. told her that between July and October 2014, she had voluntarily gone back to R.D.G. and that they had spent the last four to five months "ducking and dodging" law enforcement. J.H. told Gatlin that she and R.D.G. had been using drugs during those months. Janet Adamo, a CASA volunteer, testified that R.D.G. was an avid drug user. This testimony renders harmless any error the trial court may have committed by admitting the drug test results. See Volkswagen of Am, Inc., 159 S.W.3d at 907; Breof BNK Tex., L.P., 370 S.W.3d at 67. J.H.'s Affidavit
At trial, the Department offered an application for a protective order filed by J.H. against R.D.G. on April 2, 2014. The application, exhibit 6, also included J.H.'s affidavit in support of the protective order in which she described R.D.G.'s abuse before, during, and after her two pregnancies with his children, her inability to leave him for any length of time, his threatening behavior towards her, her children, and her family, and his criminal history. R.D.G.'s attorney objected to J.H.'s affidavit, stating that it was hearsay and improper bolstering of a witness. The trial court implicitly overruled R.D.G.'s objection by admitting the affidavit.
In his brief, R.D.G. argues that J.H.'s affidavit was hearsay. "Hearsay" means a statement that the declarant does not make while testifying at the current trial or hearing, and a party offers in evidence to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d).
But even if the trial court erred in admitting J.H.'s affidavit, J.H. testified to facts that were the same or similar to those in her affidavit without objection. She testified regarding her previous knowledge of R.D.G., his prior criminal history, and his violence towards her when she became pregnant with their first child. She stated that during her 2012 pregnancy, R.D.G. beat her, gave her a concussion, threatened to kill her, kept her away from her family, and forced her to use drugs. She and the baby tested positive for drugs when the baby was born. J.H. said that R.D.G. forced her to check out of the hospital against medical advice, and beat her at his parents' house in front of his parents and her brother. She stated that afterwards, R.D.G. abused her daily, including slapping and beating her, holding her captive, and threatening to shoot her. She left R.D.G., but returned to him despite the fact that he had another girlfriend. J.H. testified that after she discovered she was pregnant with A.D.H.-G., R.D.G. continued to abuse her, threatened her father, threatened to kill her and her unborn child, and chased her with his vehicle. She stated that R.D.G. would tell her some "sick things," such as threatening her that he "would smell the flesh coming off of [her] children's feet."
J.H. stated after R.D.G. went to jail in December 2013, she took A.D.H.-G. with her to visit him in jail. She bonded him out of jail when the child was three months old, and they lived together for about two weeks. At the end of those two weeks, she and R.D.G. went to a funeral, took A.D.H.-G. to R.D.G.'s sister's house, and began to drink. J.H. said that they began to fight, he dragged her out of the vehicle and hit her, and she head-butted him. Law enforcement responded, and they were arrested and jailed for family violence. This testimony renders harmless any error the trial court may have committed by admitting J.H.'s affidavit. See Volkswagen of Am, Inc., 159 S.W.3d at 907; Breof BNK Tex., L.P., 370 S.W.3d at 67.
We overrule R.D.G.'s fifth, sixth, and seventh issues.
DISPOSITION
Having overruled all of J.H.'s and R.D.G.'s issues on appeal, we affirm the trial court's judgment.
GREG NEELEY
Justice Opinion delivered June 8, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
JUDGMENT
Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 14-0071)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.