In re H.E.B.

Full title: IN THE INTEREST OF H.E.B., A CHILD

Court: Court of Appeals Seventh District of Texas at Amarillo

Date published: Jan 31, 2018

No. 07-17-00351-CV (Tex. App. Jan. 31, 2018)

Opinion

No. 07-17-00351-CV

01-31-2018

IN THE INTEREST OF H.E.B., A CHILD

James T. Campbell Justice

On Appeal from the 223rd District Court Gray County, Texas
Trial Court No. 38,336, Honorable Phil N. Vanderpool, Presiding

MEMORANDUM OPINION

Before CAMPBELL and PIRTLE and PARKER, JJ.

Appellant, the father, appeals the final order rendered in a suit affecting his parent-child relationship with his child, H.E.B.¹ Appellee, the Texas Department of Family and Protective Services, filed suit and the case proceeded to final hearing before a jury on the issue of conservatorship. Following the jury's verdict, the trial court rendered judgment appointing H.E.B.'s maternal grandmother sole managing conservator and appointing the father and the child's mother possessory conservators. We will overrule each of the father's four issues and affirm the trial court's final order.

1 To protect the child's privacy, we will refer to appellant as "the father," the child's mother as "the mother," the child's grandparents by initials, and to the child by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). The mother does not challenge the trial court's final order on appeal.

Background

The father and the mother were never married but lived together before H.E.B.'s birth. The child was born prematurely in December 2015, and at birth tested positive for methamphetamine. When questioned by a Department investigator, the mother admitted she ingested methamphetamine three days before H.E.B.'s birth.²

2 At the final hearing, the mother testified she used methamphetamine more than two times per week while pregnant with H.E.B.

Because of the mother's admitted drug use, the Department obtained temporary managing conservatorship of H.E.B. in January 2016. H.E.B. remained hospitalized for six weeks. He was then placed with his maternal grandparents, M.W. (grandfather) and S.W. (grandmother), and remained in their care until the time of final hearing. M.W. is the pastor of a church while S.W. is a caseworker for the Department.³

3 Evidence at the final hearing indicated, other than serving as placement family, S.W. was not involved in H.E.B.'s Department case.

In January 2016, the Department filed suit for protection of H.E.B., conservatorship, and termination of the parent-child relationship. The father's paternity was established at a June 2016 hearing. During the pendency of the SAPCR, the father was granted weekly two-hour visitation sessions with H.E.B, supervised by the father's sister.

In January 2017, M.W. and S.W. intervened in the SAPCR seeking appointment as H.E.B.'s managing conservators, and the case was tried on this issue. At the final hearing, the Department called the father adversely and he was questioned at length by the Department, the other parties, and his own counsel. At several points during the final hearing the father spoke out in open court, without the court's permission. The father returned to the witness stand for testimony during his case-in-chief. While testifying, he volunteered information that the court previously excluded. As a sanction, the court ruled the father could give no further testimony. Without additional comment, the father responded to the trial court's ruling, "Yes, sir." Following the close of evidence, responding to a single question, the jury found S.W. should be appointed H.E.B.'s sole managing conservator. The final order followed the verdict and included the court's order appointing the father and the mother H.E.B.'s possessory conservators. The final order removed the Department as H.E.B.'s temporary managing conservator and released it from further obligation arising under that status.

Analysis

Factual Sufficiency of the Evidence

In his first issue, the father asserts the evidence was factually insufficient to rebut the presumption that he should be named H.E.B.'s managing conservator. The father preserved this complaint through a motion for new trial which apparently was overruled by operation of law.

In the jury trial of a suit affecting the parent-child relationship, the role of the jury is addressed by Family Code section 105.002. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). In part, this section provides a party is entitled to a jury verdict on appointment of a child's sole managing conservator. TEX. FAM. CODE ANN. § 105.002(c)(1)(A) (West Supp. 2017). The trial court may not contravene the jury's verdict on sole managing conservatorship. Id. When determining conservatorship between a parent and a nonparent, "a presumption exists that appointing the parent as the sole managing conservator is in the child's best interest; this presumption is deeply embedded in Texas law." In re M.J.C.B., Jr. and M.C.B., No. 11-14-00140-CV, 2014 Tex. App. LEXIS 12387, at *3 (Tex. App.—Eastland Nov. 14, 2014, no pet.) (mem. op.) (citing TEX. FAM. CODE ANN. § 153.131; Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)). The presumption may be rebutted with evidence proving that appointing the parent as managing conservator would significantly impair the child's physical health or emotional development. In re M.J.C.B., Jr. and M.C.B., 2014 Tex. App. LEXIS 12387, at *3. The presumption is subject to the prohibition in section 153.004 involving a history of domestic violence. In re M.F.M., No. 07-16-00117-CV, 2017 Tex. App. LEXIS 10710, at *4-5 n.5 (Tex. App.—Amarillo Nov. 14, 2017, n. pet. h.) (per curiam, mem. op.).

In the present case, the jury was asked through a single question whether, by a preponderance of the evidence, the father or S.W. should be appointed H.E.B.'s sole managing conservator. Accompanying instructions informed the jury that a parent must be appointed permanent managing conservator of his child unless the appointment would not be in the child's best interest because it would significantly impair the child's physical health or emotional development. A second instruction directed the jury to consider evidence of the intentional use of abusive physical force, by a party directed against his or her spouse, against a parent of the child, or against any person younger than eighteen years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. As noted, the jury answered in favor of S.W.

An appellate court applies the ordinary factual sufficiency review standard to a jury's findings underlying a conservatorship appointment. In re J.A.J., 243 S.W.3d 611, 616 n.5 (Tex. 2007) (citing Corrales v. Dep't of Family & Protective Servs., 155 S.W.3d 478, 488 (Tex. App.—El Paso 2004, no pet.)). When conducting a factual sufficiency review, an appellate court considers all the evidence and sets aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 572 (Tex. App.—Amarillo 2010, pet. denied) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)). The jury as trier of fact is the exclusive judge of the credibility of the witnesses and the weight given their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). As such, it is authorized to believe some, all, or none of a witness's testimony. In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *16-17 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.).

The Department and the grandparents shouldered the burden of rebutting the parental presumption. In re M.F.M., 2017 Tex. App. LEXIS 10710, at *5-6. The mother testified the father slapped her face, burned her beautician supplies, threw bleach on her, and threw a can at her which struck her causing a bruise. According to the mother, the father once threatened to have someone "kick [her] a--, or something along those lines." She further stated the father spit in her face when she told him she was pregnant with H.E.B. According to the mother, on one occasion the father threatened her life, but she did not testify of the details. The mother agreed the father's temper is sometimes "volatile," going from calm to "extremely angry." In her opinion, the father exhibited fits of anger on a weekly basis. The father denied much of this alleged conduct but admitted he once dragged the mother out their house and called her insulting names "a couple" of times. When a therapist who treated the father between April and June 2016 was asked in testimony if, as circumstances existed at the time of his last session with the father, he perceived any danger to H.E.B. should the father have custody, the therapist expressed the opinion that an "extreme danger" would lie because the father provided him "example after example" of times he responded with violence when circumstances did not go his way.

The father testified he had been arrested at least fourteen times. He also testified of three convictions for driving while intoxicated and two convictions for driving with a suspended license. Other evidence showed he received eighteen-months' deferred adjudication community supervision for the offense of failure to stop and render aid. A copy of a 2002 "permanent" protective order issued against the father by the district court of Beckham County, Oklahoma, was admitted in evidence.

At the time of final hearing, the father was under a community supervision order as part of a plea-bargain agreement for the disposition of a felony DWI charge. According to the plea agreement, the father was sentenced to ten years' confinement in prison, probated for four years, and fined $2,000. Additionally, his driver's license was suspended for twelve months from April 5, 2017, the date of judgment, and he was required to install an alcohol-detecting interlock device on his vehicle. Notwithstanding the suspension of his license, the father admitted at final hearing he continued to drive and had not installed the interlock on his vehicle. The father also acknowledged he had not paid community supervision fees.

The father further acknowledged once having a misdemeanor order of probation revoked and serving a thirty-day sentence in the county jail. When asked how he intended to successfully complete felony probation, the father responded he planned to do nothing differently, and added, "hopefully, I don't get involved with somebody that messes things up real bad."

The mother referred, during her testimony, to alcohol as the father's "go-to" drug. She testified he did not consume alcohol every day or every weekend but when he drank it was to excess and "horrible." She explained the father would black out. According to the mother's testimony, the father has told her he sometimes hears voices. She explained this occurred when he was sober.

According to the father's testimony, he "never really drank a whole lot. [He] just ha[d] really bad luck." Although the terms of the father's community supervision order prohibit his consumption of alcohol, he testified he enjoyed drinking and that he might again imbibe once he completes community supervision, H.E.B. is taken care of, and he is employed. A CASA (court appointed special advocate) volunteer testified that on one occasion the father came to the Amarillo CASA office after hours. She recalled his eyes were bloodshot and he smelled of alcohol. Another CASA volunteer testified the father received a criminal trespass warning at the Department's Amarillo office. For safety reasons, she was told to have no contact with the father except through his attorney and in court.

A sheriff's deputy testified that on an unspecified date, over a year prior to the final hearing, the father and his father, C.B., were fighting. C.B. told the deputy the father was beating him severely, so he fired one or two warning shots with a gun and then shot the father in the stomach. The father was critically injured and spent some four months in an Amarillo hospital as a result.

The father's parental rights to a daughter in Oklahoma were previously terminated for failure to pay child support. At the time of final hearing the father was unemployed. He testified he made $400 the month before the hearing but denied having any savings or funds in a checking account. He acknowledged having no steady income. The father testified he relies on his brother "for a lot of things" but also testified his brother and his father are "full-blown" drug addicts.

The father offered evidence to rebut the Department's proof of conduct impairing H.E.B.'s wellbeing. As for his alleged abuse of alcohol, he testified an assessment indicated he has no problem with alcohol addiction. He added he no longer uses alcohol. The father completed the court-ordered services required for reunification with H.E.B., except for the Battering Intervention and Prevention Program (BIPP).⁴ A representative of BIPP testified the father was eligible for readmission to the program. A pastor testified he teaches parenting classes and the father completed the class requirement. He acknowledged the father participated in class and asked questions. The father testified he occupies a two-bedroom brick home and has a room ready for H.E.B. His sisters and mother will assist with child care. While at the time of final hearing the father was "between jobs," he testified he likely could obtain a position with a company, performing "oil field work." According to the father's testimony, he previously worked at a Wal-Mart and has experience as a welder. He also testified he once worked at an eight-liner establishment in Pampa. Evidence showed the father opposed the mother's drug use and tried to take her drug paraphernalia. To this end, he even called the police. The mother agreed on cross-examination that those actions showed the father cared for her and their unborn child.

4 The Department caseworker handling H.E.B.'s case testified he observed no benefit to the father from the services he completed.

After reviewing all the evidence in a neutral light, we find the jury's implicit finding that appointment of the father as H.E.B.'s sole managing conservator would not be in the child's best interest because the appointment would significantly impair H.E.B.'s physical health or emotional development was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See In re N.L.D., 412 S.W.3d 810, 818, 824 (Tex. App.—Texarkana 2013, no pet.); In re K.N.D., 403 S.W.3d 277, 287 (Tex. App.—Houston [1st Dist.] 2012) rev'd on other grounds, 424 S.W.3d 8 (Tex. 2014); In re G.R.W., 191 S.W.3d 896, 898-902 (Tex. App.—Texarkana 2006, no pet.); Kirby v. Chapman, 917 S.W.2d 902, 911-914 (Tex. App.—Fort Worth 1996, no writ); Thomas v. Thomas, 852 S.W.2d 31, 36 (Tex. App.—Waco 1993, no writ) (each finding evidence sufficient to rebut parental presumption). The father's first issue is overruled. Second Issue: Enforcement of Restricted Possession or Access

In relevant part, the final order provides:

IT IS ORDERED that Respondent [the father], named as possessory conservator of the child [H.E.B.], shall have possession and access as follows:

* * *

Effective December 26, 2018, [the father] shall have supervised visitation for two hours twice each week as mutually agreed by the parties and in the absence of mutual agreement as designated by [S.W.]. [S.W.] or her designee shall supervise the visitation.

Through his second issue the father contends this ordering language, effective when H.E.B. reaches age three, grants S.W. complete discretion over the father's possession of H.E.B., potentially denying him access to the child, and denying the father the remedy of contempt because of its lack of specificity.

An appellate court will not disturb a trial court's conservatorship order unless the complaining party demonstrates a clear abuse of discretion. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, or without reference to guiding principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). An appellate court may not substitute its judgment for that of the trial court if the order is supported by some evidence of a substantive and probative character. Echols, 85 S.W.3d at 477.

It is rebuttably presumed that a standard possession order is in a child's best interest and provides reasonable minimum possession of a child for a parent named as a possessory conservator. TEX. FAM. CODE ANN. § 153.252 (West 2014). A trial court may, however, condition parental access, for example, by imposing supervised visitation, when it is in the child's best interest. In re Marriage of Koenig, No. 14-16-00319-CV, 2017 Tex. App. LEXIS 5747, at *10 (Tex. App.—Houston [14th Dist.] June 22, 2017, no pet.) (mem. op.); see also In re A.L.E., 279 S.W.3d 424, 432 n.7 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("It is beyond question that, in an appropriate case, a trial court may order a parent's visitation to be supervised"). Restrictions or limitations placed on a parent's right of possession or access may not exceed those necessary to protect the best interest of the child. TEX. FAM. CODE ANN. § 153.193 (West 2014). The order must state how the parties shall comply with the possession order in language that is sufficiently specific to permit an aggrieved party to enforce the order by contempt. See In re Collier, 419 S.W.3d 390, 398 (Tex. App.—Amarillo 2011, no pet.) (finding possession order which provided the father's "'visitation with the child shall be at the discretion of [the mother]'" was effectively a complete denial of the father's access to the child and was unenforceable by contempt). "To be enforceable by contempt, an order must set out the terms of compliance in clear and unambiguous terms." In re Coppock, 277 S.W.3d 417, 418 (Tex. 2009) (citing Ex parte Brister, 801 S.W.2d 833, 834 (Tex. 1990) (orig. proceeding)). "Moreover, a person cannot be sentenced to confinement unless the order unequivocally commands that person to perform a duty or obligation." Id. (citing Ex parte Padron, 565 S.W.2d 921, 921 (Tex. 1978) (orig. proceeding)).

The father's issue expresses his concern that the court's order for visitation after H.E.B. reaches age three is unenforceable. The concern is unfounded. The possession order unequivocally states the frequency and duration of the father's access to H.E.B. S.W. must allow the father a two-hour visitation session with H.E.B., twice each week. For this, S.W. has no discretion and her failure to comply as ordered is enforceable by contempt. See George v. Jeppeson, 238 S.W.3d 463, 471 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (order providing possessory conservator mother with access and possession of children twice monthly, during supervising third-party program's hours of operation, and until each child either reached majority or was discharged from the program not unenforceable for lack of certainty because it notified mother, father, and program of mother's twice monthly possessory rights; therefore, any failure of supervisory program to permit mother her twice monthly access would be readily enforceable in trial court). The father's second issue is overruled. Third Issue: Ineffective Assistance of Counsel

By his third issue the father asserts his court-appointed trial counsel rendered ineffective assistance by failing to file a motion for continuance meeting the requirements of Rule of Civil Procedure 252. TEX. R. CIV. P. 252. We will assume, but do not decide, the motion did not fully satisfy the requirements of Rule 252.

In Texas, there is a statutory right to counsel for indigent persons in a suit filed by a governmental entity in which appointment of a conservator is requested. TEX. FAM. CODE ANN. § 107.013(a) (West Supp. 2017); see In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (concerning the effectiveness of court-appointed counsel in termination of parental rights case). A court applies the established criminal-law Strickland test when gauging the effectiveness of counsel in such proceedings. See id. at 545 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To establish an ineffective assistance of counsel claim under Strickland, the defendant must satisfy the following prongs:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's

errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687. Said simply, it is the parent's burden to demonstrate his counsel's performance was deficient and the deficient performance prejudiced the parent's case. In re M.S., 115 S.W.3d at 545; In re L.G.R., 498 S.W.3d 195, 208-10 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

To address a contention that counsel's representation was deficient, a court considers all the circumstances surrounding the case and determines whether counsel was "reasonably effective." In re M.S., 115 S.W.3d at 545. The court affords counsel's performance great deference, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (quoting Strickland, 466 U.S. at 689). It is only if counsel's conduct is "so outrageous that no competent attorney would have engaged in it," that a court will find counsel's performance deficient. Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

A parent's ineffective assistance of counsel claim must be firmly grounded in the record; thus, the record must affirmatively demonstrate the alleged ineffectiveness and the resulting harm. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). A record which is silent as to why counsel took or failed to take certain actions is generally not adequate to establish ineffective assistance of counsel. McBean v. State, 167 S.W.3d 334, 340 (Tex. App.—Amarillo 2004, pet. refused). In the face of a silent record as to counsel's reasons for his actions, a court may not speculate and find him ineffective. P.W. v. Tex. Dep't of Family & Protective Servs, 403 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism'd) (recognizing that courts will ordinarily presume that the challenged action is sound trial strategy when the record is silent as to counsel's motivations).

The record here does not contain trial counsel's explanation for why he prepared the father's motion for continuance as he did. Absent such evidence, and based on the record before us, the presumption that counsel's actions were the product of reasonable professional judgment prevails. We will not speculate on counsel's mental processes as the basis for concluding that he was ineffective. McBean, 167 S.W.3d at 341. Because counsel's ineffectiveness has not been shown under the first Strickland prong, we do not consider the prejudice prong. See Lopez v. State, 343 S.W.3d 137, 144 (Tex. Crim. App. 2011) (holding requirements of second Strickland prong need not be considered if appellant fails to satisfy first Strickland prong). Moreover, even considering Strickland's second prong, because the record does not identify the father's absent witnesses, the expected substance of their testimony, and the testimony's materiality to the father's case, we could not say the father's case was prejudiced. See Ryder v. State, 514 S.W.3d 391, 404-05 (Tex. App.—Amarillo 2017, pet. ref'd) (explaining under Strickland standard a defendant does not meet his burden by merely showing an error had some conceivable effect on the outcome of trial). The father's third issue is overruled. Fourth Issue: Excluded Testimonial Evidence

Through his fourth issue, the father argues when the trial court sanctioned him by ruling he could give no more testimony, it infringed on his Sixth Amendment right to testify denying him a fair trial.

The record does not indicate the father preserved in the trial court the error he assigns on appeal through this issue. TEX. R. APP. P. 33.1(a). Even constitutionally based complaints can be forfeited if not preserved. In re A.H., No. 02-17-00222-CV, 2017 Tex. App. LEXIS 10544, at *34 (Tex. App.—Fort Worth Nov. 9, 2017, pet. denied) (per curiam, mem. op.). To preserve a complaint that the trial court wrongfully excluded evidence, it was incumbent on the father to make an offer of proof informing the trial court of the substance of the testimony he expected to give, had he been allowed to continue testifying. TEX. R. EVID. 103(a)(2). The record does not contain an offer of proof nor does it afford even a hint of the testimony the father intended. The father argues, however, the trial court's "blanket" prohibition of further testimony "certainly encompass[ed]" an offer of proof. We disagree. At no point did the trial court deny the father permission to make an offer of proof of the excluded testimony.

The father also contends we should consider his unpreserved complaint, because in violating his Sixth Amendment right to testify, the trial court committed fundamental error. In criminal cases an appellate court may consider unpreserved fundamental error affecting a substantial right. TEX. R. EVID. 103(e). But in civil cases "[f]undamental error survives today in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas." Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam); see Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (discussing limited applicability of fundamental-error doctrine and citing McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957)). Thus, besides jurisdictional error apparent on the face of the record, the fundamental-error doctrine has been applied to review certain types of error in juvenile delinquency cases because of the quasi-criminal nature of those proceedings. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). But generally, fundamental error is a discredited doctrine in civil cases because of strong policy considerations favoring error preservation. In re Commitment of Fontenot, No. 01-17-00207-CV, 2017 Tex. App. LEXIS 11267, at *22 (Tex. App.—Houston [1st Dist.] Dec. 5, 2017, n. pet. h.). "Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds." In re B.L.D., 113 S.W.3d at 350. Because the trial court was unable to consider the substance of the father's excluded testimony, and because the complained-of error was not fundamental, we overrule the father's fourth issue.

Conclusion

Having overruled each of the father's issues, we affirm the trial court's final order.

James T. Campbell

Justice