Opinion
NO. 03-17-00816-CV
06-01-2018
E. A. H., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-FM-16-000352 , HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
E.A.H. appeals a final order, following a bench trial, terminating her parental rights to three of her children—A.H., T.L.H.-C., and T.H.-C. The order rested on findings, based on clear-and-convincing evidence, of two alternative statutory termination grounds—E.A.H. had (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children, and (2) failed to comply with the provisions of a court order specifically establishing the actions necessary for her to obtain the return of the children—plus the required additional finding that termination was in the children's best interest. In this appeal, E.A.H. brings three issues challenging the legal and factual sufficiency of the evidence supporting these respective findings. In a fourth issue, E.A.H. insists that the district court improperly relied on "expert opinion not offered in [her] trial" and "independent research." Additionally, E.A.H. raises, as a "preliminary" or threshold matter, an allegation of noncompliance with the federal Indian Child Welfare Act (ICWA).
We refer to the children, their parents, and other family members by their initials in an effort to protect their privacy. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2).
See Tex. Fam. Code § 161.001(b)(1)(E), (O), (2).
See generally 25 U.S.C.A. §§ 1901-1963.
We will affirm the district court's termination order.
INDIAN CHILD WELFARE ACT
ICWA, the federal statute underlying E.A.H.'s threshold complaint, seeks to protect the interests of Native American children, families, and tribes by establishing minimum federal standards in state child-custody proceedings that involve an "Indian child." An "Indian child" under ICWA means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Among the protective measures imposed by ICWA when applicable is a heightening of an already heightened burden of proof to terminate parental rights—there must be a determination supported by evidence beyond a reasonable doubt, including testimony of "qualified expert witnesses," that continued custody of the child is likely to result in serious emotional or physical damage to the child. ICWA further requires that when a trial court "knows or has reason to know" that an "Indian child" is the subject of a termination proceeding, it must ensure that notice complying with specified guidelines is given to "[e]ach Tribe where the child may be a member."
See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36-37 (1989) (discussing ICWA's background and requirements); S.P. v. Texas Dep't of Family & Protective Servs., No. 03-17-00698-CV, 2018 Tex. App. LEXIS 1788, at *2-5 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.) (same).
See id. § 1912(f).
See id. § 1912(a); 25 C.F.R. §§ 23.11, .111.
Prior to and again during the termination hearing, the Department advised the district court that one of the fathers of the children at issue, C.C., had claimed to have Cherokee ancestry. C.C. was called to testify on this subject, and he professed that his late father had been an enrolled member of the Cherokee Nation, a federally recognized tribe in Oklahoma, and that various other members of his extended family also had Cherokee ancestry. The district court recessed the trial for what proved to be approximately six weeks and directed the Department to give the notice required by ICWA. The Department did so, sending notice by certified mail, return receipt requested, to the U.S. Department of Interior's Bureau of Indian Affairs, the Bureau's area director over Texas, the Cherokee Nation of Oklahoma, and two additional federally recognized Cherokee tribes. The notice advised the recipients of the proceedings and of their potential rights in regard to it, and provided the name, date of birth, and birthplace of each child, of C.C., and of E.A.H., as well as names and other information regarding C.C.'s father and other relatives of C.C. having possible tribal connections. All three Cherokee tribes responded, each advising of its determination that none of the children was a member nor eligible to be a member of the tribe. ICWA recognizes the sovereignty of tribes in making their membership determinations, so these determinations ruled out "Indian child" status for the children with respect to any of the tribes. The Department filed these responses with the district court. Satisfied that any requirements under ICWA had been discharged, the district court thereafter continued with the termination hearing and ultimately made its findings under the conventional clear-and-convincing standard rather than the Act's heightened burdens.
C.C. had previously been adjudicated to be the father of two of the children (T.L.H.-C., and T.H.-C.), and his parental rights to all three children were terminated by the same order that terminated E.A.H.'s rights. The order likewise terminated the parent-child relationship, "if any exists," between the third child, A.H., and a second male, L.H., with whom E.A.H. had borne another child not at issue in this proceeding. Neither C.C. nor L.H. has appealed.
The United Keetowah Band of Cherokee Indians in Oklahoma and the North Carolina-based Eastern Band of Cherokee Indians.
See 25 C.F.R. § 23.111(b)-(e) (corresponding notice specifications).
See id. § 23.108(b) ("The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law. The State court may not substitute its own determination regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's membership in a Tribe.").
Although E.A.H. makes a passing (and unconvincing) suggestion that the Department's notice to the Cherokee tribes lacked some component of the information ICWA requires, her chief thrust is to insist that C.C.'s testimony put the district court and the Department on notice of a need to inquire about possible Indian child status with other tribes as well. E.A.H. points to portions of C.C.'s testimony in which, while describing the claimed Cherokee tribal membership of his father and two aunts, he alluded to "[D]awes scroll numbers" or "scroll numbers" supposedly reflecting those affiliations. According to E.A.H., C.C. was referring to the Dawes Rolls, which in fact are lists of persons eligible for membership in the Cherokee, Creek, Choctaw, Chickasaw, and Seminole tribes that were compiled by the federal government between 1898-1914 and that these tribes presently use as the basis for their membership determinations. As E.A.H. sees it, C.C.'s references to the "[D]awes scroll numbers" or "scroll numbers" put the district court and the Department on notice of a possibility that the children were instead connected to one of the four other tribes whose forbears are also recorded on the Dawes Rolls. We cannot agree.
See Dawes Rolls, NATIONAL ARCHIVES, https://www.archives.gov/research/native-americans/dawes/tutorial/intro.html#about (last visited May 30, 2018).
Whether a court correctly applied the ICWA is a question of law reviewed de novo. See, e.g., In re E.G.L., 378 S.W.3d 542, 546 (Tex. App.—Dallas 2012, pet. denied).
In his testimony, C.C. did not elaborate regarding the nature of "[D]awes scroll numbers" beyond indicating that his relatives had them as Cherokee tribal members. All of these references were made in the context of C.C.'s attestations to his claimed Cherokee ancestry. He professed affiliation to no other tribe. In fact, when asked by the Department's counsel whether he was "claiming possible ancestry of any other tribe other than Cherokee," C.C. replied: "[n]o, ma'am. Just Cherokee Nation." The district court accordingly directed notice to Cherokee tribes to inquire about membership status, and the tribes ruled out such status. Especially in the context of C.C.'s testimony, the bare fact that Cherokee historical member rolls are recorded in the same repository as those of other tribes, even if somehow made known to the district court or the Department (and there is no indication it was), would not be "reason to know" that the children were "Indian children" with respect to those other tribes. The district court did not err in concluding that any applicable ICWA requirements had been discharged and proceeding to judgment without applying the Act's heightened standards.
SUFFICIENCY OF THE EVIDENCE
In her second, third, and fourth issues, E.A.H. contends the evidence is legally and factually insufficient to support the district court's findings, by clear and convincing evidence, of either statutory ground for termination or that termination is in the best interest of the children.
Standard of review
In reviewing the sufficiency of the evidence supporting an order terminating parental rights, we examine whether the Department proved, by clear and convincing evidence, that the parent engaged in conduct that amounts to statutory grounds for termination and that termination is in the best interest of the children. Clear and convincing evidence is a heightened burden of proof that requires "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." We apply a standard of review on appeal that reflects this burden of proof.
See In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Tex. Fam. Code § 101.007; see C.H., 89 S.W.3d at 25.
See, e.g., In re J.F.C., 96 S.W.3d 256, 264-66 (Tex. 2002).
"In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." However, "[t]his does not mean that a court must disregard all evidence that does not support the finding." The reviewing court must consider "undisputed facts that do not support the finding." "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient."
Id. at 266.
Id.
Id.
Id.
Id.
Id.
In a factual sufficiency review, "the inquiry must be 'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.'" We "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing," but we also "should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient."
Id. (quoting C.H., 89 S.W.3d at 25).
Id.
Id.
Statutory grounds
Because the statutory termination grounds are alternative, we need determine only whether sufficient evidence supports one ground. We will focus our analysis on the ground that is the subject of E.A.H.'s second issue—Subsection 161.001(b)(1)(E), which authorizes termination of parental rights if the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child."
See Spurck v. Texas Dep't of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin 2013, no pet.) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)).
See, e.g., In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014).
"Termination under subsection [161.001(b)(1)(E)] must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required." "The requisite endangerment may be found if the evidence shows a parent's course of conduct that has the effect of endangering the child's physical or emotional well-being." In this context, Texas courts have defined "endanger" broadly. Although the term "means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." "Rather, 'endanger' means to expose to loss or injury; to jeopardize." Endangerment "can occur through both acts and omissions." "The [endangering] conduct need not occur in the child's presence, and it may occur 'both before and after the child has been removed by the Department.'" "If the evidence shows that the parent has engaged in a course of conduct which has the effect of endangering the child, then the finding under subsection E may be upheld." "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." "Intentional criminal activity that exposes a parent to incarceration" or "a parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct."
In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied)).
Id.
Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citing Allred v. Harris Cty. Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref'd n.r.e.)).
Id. (citing Webster's New Twentieth Century Dictionary of the English Language 599 (1976)).
In re W.J.H., 111 S.W.3d 707, 715 (Tex. App.—Fort Worth 2003, pet. denied) (citing Phillips v. Texas Dep't of Protective & Regulatory Servs., 25 S.W.3d 348, 354 (Tex. App.—Austin 2000, no pet.)).
In the Interest of A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (quoting Walker v. Texas Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)).
W.J.H., 111 S.W.3d at 716 (citing In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.)).
In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (citing In the Interest of S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)).
In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing Boyd, 727 S.W.2d at 533; Allred, 615 S.W.2d at 806).
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (citing In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.); Toliver v. Texas Dep't of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); R.W., 129 S.W.3d at 739).
Here, the evidence in support of the district court's endangerment finding included proof that E.A.H. had a history of alcohol abuse, criminal activity, and imprisonment. In January 2008, E.A.H. was convicted of driving while intoxicated and sentenced to 120 days in jail, probated for two years. Her community supervision was subsequently revoked for committing another driving-while-intoxicated offense, failing to report to her probation officer on four separate occasions, and failing to perform community service hours, and she was sentenced to 20 days in jail.
A.H., the oldest of E.A.H.'s children named in the Department's petition, was born in April 2008. This initial conviction is relevant because it forms part of a continuous course of conduct. See In the Interest of A.M., 495 S.W.3d at 579 ("To determine whether termination is justified, courts may look to parental conduct both before and after the child's birth." (citing J.O.A., 283 S.W.3d at 345)).
E.A.H. gave birth to T.H.-C. in May 2010. Paul Cheever, an investigator with the Department, testified that E.A.H.'s "blood alcohol level was above the normal limit" at the time. Cheever testified without objection that E.A.H. told the doctor attending the birth that "she had been drinking wine and beer several times a week throughout her pregnancy."
E.A.H. was arrested in July 2014 and again in January 2016 for driving while intoxicated with a passenger under 15 years of age. Cheever testified that the three children were passengers in the vehicle both times. Regarding the January 2016 arrest, Cheever testified that E.A.H. was driving on Interstate 35 when Austin police attempted to pull her over, but she exited at Oltorf and continued driving until Fifth Street. According to Cheever, E.A.H. told him afterwards that the children were not restrained within her vehicle because she thought restraints were unneeded. Officer Jennifer Taylor of the Austin Police Department testified that she administered a field-sobriety test to E.A.H. and arrested her when she failed. According to Taylor, E.A.H. had outstanding warrants at the time for public intoxication and felony driving while intoxicated.
Several months later, E.A.H. pleaded guilty to both DWI-with-child-passenger offenses and received concurrent sentences of two years in state jail, probated for five years. E.A.H. entered the SMART program for treatment of substance abuse and was released from the 20-week residential portion in October 2016.
E.A.H. subsequently pleaded true to violating the conditions of her community supervision by using cocaine (evidenced by a positive urinalysis), failing to submit urine samples on eleven occasions, operating a vehicle without a valid Texas drivers' license, failing to install an Ignition Interlock device in her vehicle, and operating a vehicle without an interlock device. Her probation was revoked in June 2017 and she was sentenced to ten months in state jail.
E.A.H. was released prior to the beginning of trial in July 2017 due to time credits.
Relying on her successful completion of the SMART program and the fact that she has not tested positive for alcohol since, E.A.H. argues that her course of endangering conduct has ceased and is no longer relevant. However, "evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of . . . irresponsible choices." Viewing the above evidence in the light most favorable to the endangerment finding, it tends to show that E.A.H. drove while intoxicated at least four times, twice with the children as passengers, violated the terms of her community supervision, and was imprisoned several times as a result. Based on this evidence, the district court could have reasonably formed a firm belief or conviction that E.A.H. engaged in a voluntary course of conduct which endangered the physical and emotional well being of the children. We conclude the evidence is legally sufficient to support the district court's endangerment finding by clear and convincing evidence.
J.O.A., 283 S.W.3d at 346; see In the Interest of S.J.R.-Z., 537 S.W.3d 677, 694 (Tex. App.—San Antonio 2017, pet. denied) (op. on reh'g).
See Tex. Fam. Code § 161.001(b)(1)(E); In re C.A.B., 289 S.W.3d at 883.
We reach the same conclusion after giving due consideration to the disputed evidence in this case. The disputed evidence consists primarily of E.A.H.'s testimony that the children were not in the car during her 2014 arrest and that she did not use cocaine. She calls the positive test result "uncharacteristic" because alcohol was her "drug of choice," but the district court was within its discretion to credit the positive test result. In light of the entire record, we cannot say that the disputed evidence "is so significant that a factfinder could not reasonably have formed a firm belief or conviction" that E.A.H. engaged in a course of conduct that endangered the physical and emotional well being of the children. We conclude the evidence is factually sufficient to support the district court's endangerment finding by clear and convincing evidence.
See, e.g., In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (when sitting as factfinder, trial court is "the sole arbiter when assessing the credibility and demeanor of witnesses" (citing In re J.L., 163 S.W.3d 79, 86-87 (Tex. 2005)).
J.F.C., 96 S.W.3d at 266.
We overrule E.A.H.'s second issue and, as previously explained, need not reach her third.
See Tex. R. App. P. 47.1; S.M.R., 434 S.W.3d at 580.
Best interest
In her fourth issue, E.A.H. challenges the legal and factual sufficiency of the district court's finding that the termination of her parental rights was in the best interest of the children. When deciding the best interest issue we consider the well-established Holley v. Adams factors, which include the children's wishes, the children's emotional and physical needs now and in the future, emotional or physical danger to the children now and in the future, the parenting abilities of the parties seeking custody, programs available to help those parties, plans for the children by the parties seeking custody, the stability of the proposed placement, the parent's conduct indicating that the parent-child relationship is improper, and any excuses for the parent's conduct. The Department need not prove all of the Holley factors as a "condition precedent" to termination, and the absence of some factors does not bar the factfinder from finding by clear and convincing evidence that termination is in a child's best interest. "[T]he need for permanence is a paramount consideration for the child's present and future physical and emotional needs." Moreover, a parent's statutorily offensive conduct is often intertwined with the best-interest determination.
See 544 S.W.2d 367, 371-72 (Tex. 1976).
C.H., 89 S.W.3d at 27; Spurck, 396 S.W.3d at 222.
In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995, no writ)).
See Horvatich v. Texas Dep't of Protective & Regulatory Servs., 78 S.W.3d 594, 601 (Tex. App.—Austin 2002, no pet.) (citing Holley, 544 S.W.2d at 372; Leal v. Texas Dep't of Protective & Regulatory Servs., 25 S.W.3d 315, 321 (Tex. App.—Austin 2000, no pet.), disapproved of on other grounds by J.F.C., 96 S.W.3d 256).
In addition to considering evidence regarding the statutory endangerment ground, the district court considered evidence concerning the well-being of the children. The children's foster mother, G.L., testified how the children had academic and behavioral problems when they were placed with her, including inappropriately touching other students, but that they have improved during their time in her home. In particular, G.L. discussed how the children's school reevaluated placing A.H. in special education and that T.L.H.-C. was "doing a much better job" as he repeated the second grade. G.L. testified that she and her husband believe in providing a "safe, structured home" for the children. Kristina Kennedy, a CASA volunteer familiar with the case, testified that it is in the children's best interest to remain in that home "after the chaotic life that they've come from" with E.A.H.
According to Plummer, the children initially lived with E.A.H.'s father but were removed after a month because he was too ill to care for them.
Kennedy and Jennifer Plummer, a Department caseworker assigned to the matter, both testified that it was not in the children's best interest to return them to E.A.H. because E.A.H. still did not appreciate the risks her previous conduct posed to the children. Plummer explained that she had tried several times to discuss with E.A.H. how her actions put the children in danger of death or serious injury. The substance of E.A.H.'s reply, according to Plummer, was always that the children "didn't die." Based in part on those conversations, Plummer testified that she had no confidence that E.A.H. would not drive while intoxicated with the children in the future. Kennedy agreed that E.A.H. never expressed awareness that she endangered the children.
G.L. testified that she and her husband want to adopt the children. Plummer told the district court that adoption would be possible, explaining that G.L. and her husband are a licensed foster home and have already completed a home study. Kennedy testified that the children want to stay with G.L. and "are adamant about not wanting to go back" to E.A.H.
The district court also considered evidence that E.A.H. refused the Department's directions to take drug tests and threatened Plummer, the caseworker. Plummer testified that E.A.H. refused several requests to give a hair or nail sample for testing because she had "just gotten her hair done" or "just [had] her nails done" but would agree if Plummer paid for E.A.H. to have her hair or nails done again. When E.A.H. did take a hair follicle test and it was positive for cocaine (around the same time as the positive urinalysis), Plummer testified that E.A.H. accused her of altering the result to show a false positive and told her "[y]ou better pray nothing happens to you or your child."
Plummer explained that E.A.H. took urine tests at the direction of her probation officer and hair or nail tests for the Department.
Viewing this and other evidence in the light most favorable to the finding, the district court could reasonably come to a firm belief or conclusion that the children were not safe in E.A.H.'s care and that the current placement would provide a more safe and stable environment for them. We conclude that the evidence is legally sufficient to support the district court's finding by clear and convincing evidence that termination of E.A.H.'s parental rights was in the best interest of the children.
We reach the same conclusion regarding the factual sufficiency of the evidence after giving due consideration to the disputed evidence in the case. E.A.H. testified that she acknowledges that she placed the children in danger and that she has no intention to use alcohol in the future. As evidence she can provide stability, she points to her testimony that she has maintained employment as a home-health-care nurse and rents an apartment that is appropriate for the children. E.A.H. also questions G.L.'s testimony regarding the children's behavioral and academic issues, contending that it is contradicted by the Department's status reports. Deferring to the district court's role to assess the credibility of the witnesses, the disputed evidence is not so significant that a reasonable factfinder could not form a firm belief or conviction that terminating E.A.H.'s parental rights was in the best interest of the children. We conclude the evidence is factually sufficient to support the district court's finding by clear and convincing evidence that termination is in the children's best interest.
E.A.H. offered, and the district court admitted, a copy of the first page of her apartment lease and photographs of the apartment's interior.
See In the Interest of D.M., 452 S.W.3d 462, 474 (Tex. App.—San Antonio 2014, no pet.) (concluding, when considering best interest, that evidence of parent's "sobriety and improvement in behavior" was "not so significant to conclude that the trial court's decision was unreasonable due to [the mother's] history of drug abuse, criminal activity and incarceration").
We overrule E.A.H.'s fourth issue.
ALLEGED EXTERNAL SOURCES
In her first issue, E.A.H. asserts that the district court violated her "due process" rights by relying on "expert opinions" from other cases and by performing "independent research" about E.A.H.'s history. The Department argues initially that E.A.H. did not preserve error because she failed to object. A party must object to a trial court's allegedly improper comment or conduct when it occurs unless the impropriety was witnessed by a jury and was not curable by instruction. E.A.H. did not object to either alleged impropriety at trial, but she would not be entitled to relief even if she had preserved error.
See, e.g., Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam) ("[O]bjection to a trial court's alleged improper conduct or comment must be made when it occurs if a party is to preserve error for appellate review, unless the conduct or comment cannot be rendered harmless by proper instruction." (citing State v. Wilemon, 393 S.W.2d 816, 818 (Tex. 1965)); see also Tex. R. App. P. 33.1(a).
See Neely v. Comm'n for Lawyer Discipline, 302 S.W.3d 331, 351 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (complaint that trial judge received improper ex parte communication from judge who presided over prior attorney disciplinary hearing involving appellant was waived by failure to object); see generally Low v. Henry, 221 S.W.3d 609, 619 (Tex. 2007) (federal due process claim waived by failure to object).
E.A.H.'s first complaint concerns the following exchange with the district court at the end of her testimony:
THE COURT: When you served time, where were you serving your time?
[E.A.H.]: I spent the first six months in Del Valle, Travis County, and then the rest was the five month—we say five months but the 20 week—
THE COURT: You never served in Gatesville?
[E.A.H.]: No, ma'am.
THE COURT: So a case involving [E.]A. with children Lucas Timothy, not your children.
[E.A.H.]: Oh, no.
THE COURT: Just wanted to confirm.
E.A.H. insists that this exchange indicates that the district court conducted "independent research" about her, and did so improperly, because there was no evidence she was ever incarcerated outside of Travis County. Assuming without deciding that such research occurred and would be improper, E.A.H. must also show that she suffered harm as a result. She has failed to do so. On the contrary, the above exchange is consistent with the district court accepting E.A.H.'s denial that she was not the same person imprisoned in Gatesville.
See, e.g., Kroger Co. v. Milanes, 474 S.W.3d 321, 344 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986) (reversal requires showing of judicial impropriety "coupled with probable prejudice and rendition of an improper verdict"))); see also Tex. R. App. P. 44.1(a).
E.A.H.'s second complaint concerns the district court's comments at the conclusion of the trial. Addressing E.A.H. directly, the district court stated:
The—the—what really concerns me most, Ms. [H.] even after three days of evidence, I don't—I don't believe that you have a true appreciation for what alcohol has done to your family. Um, alcohol is—in many ways—not different from elicit [sic] drugs in that it is addictive. And addictions are lifelong. Um, I've had many experts explain the cruelty that alcohol can impose on families. Um, and that without treatment, lifelong support, um, it will return.Shortly afterwards, the district court stated:
And you've got—you've got to not just abstain from alcohol, but did you hear—you heard [C.C.'s mother] talk about triggers. You know why she's talking about that?
She's talking about that because what happens often with alcoholism, any addiction, is that when we have difficult times, we look to self-heal to try to take care of ourselves with alcohol, and you haven't—you haven't gone through the steps to find yourself a mentor or someone who can help ensure that you don't fall back.
E.A.H. contends that these comments reflect that the district court relied on "evidence of experts that had testified in other trials or venues" when concluding that E.A.H.'s lack of a mentor made it less likely that she would stay sober in the future. The Department responds that (1) we are precluded from considering the district court's comments as findings, (2) the district court's comments are supported by other evidence in the record, and (3) E.A.H. has not shown prejudice sufficient to warrant reversal.
See In the Interest of W.E.R., 669 S.W.2d 716 (Tex. 1984) (holding that reviewing courts are "not entitled to look to any comments that the judge may have made at the conclusion of a bench trial as being a substitute for findings of fact and conclusions of law").
We cannot agree with E.A.H. that the district court's comments demonstrate reliance on outside information. Rather, the district court's comments are consistent with permissible inferences drawn from E.A.H.'s testimony. E.A.H had testified that she did not attend Alcoholics Anonymous meetings because she perceived herself unable due to her work schedule. In response to a follow-up question, E.A.H. agreed that people recovering from addiction to alcohol need "some kind of support system that pushes them to do something positive. Going to church or being around family that support them in their sobriety." However, E.A.H. could not readily describe her own "support system" when questioned further:
See, e.g., In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012) (trier of fact may draw "reasonable and logical" inferences from the evidence in parental-termination proceedings).
Q. Do you have a sponsor?The district court could permissibly infer from the above exchange that E.A.H. had not obtained a mentor or other "support system" despite acknowledging its importance in maintaining her sobriety.
A. I don't but I have family that supports me very largely in me being sober.
Q. Who in your family supports you in your recovery?
A. Um, I have cousins; I have aunts; I have, like, cousins and aunts most definitely.
Q. Can you give me their names.
A. What do you need it for?
THE COURT: Just—
Q. To verify the truthfulness of your answer.
A. I do not know. I'[m] telling you that's my family. I have support. [E.A.H.'s counsel] has met them.
THE COURT: You'll need to answer the question that's asked. Who's specifically supporting you in your sobriety?
THE WITNESS: I have a cousin named Katie.
Q. What's Katie's last name?
A. She's married now so I think it's like Willard. I don't know like her husband's last, last name.
Q. Who else?
A. Um, I have my supervisor, Henry. Um, I have—
Q. Excuse me. Your supervisor where?
A. At my job.
Predicated on the same characterization of the district judge's conduct, E.A.H. contends that the district court's actions also breached various provisions of the Model Code of Judicial Conduct. Aside from the flaws in that premise, E.A.H. presents no authority, and we have found none, that a violation of the model code is ground for reversal. Cf. Merritt v. Davis, 331 S.W.3d 857, 863 (Tex. App.—Dallas 2011, pet. denied) (rejecting similar argument concerning Texas Code of Judicial Conduct).
And even if E.A.H. had demonstrated that the district court considered outside information, she has not demonstrated that it probably resulted in the rendition of an improper judgment. As summarized under our discussion of her sufficiency challenges above, the district court heard evidence of a significant history of alcohol abuse (among other substances) that tends to dwarf E.A.H.'s professions of a recent, and comparatively brief, recovery. Viewing the record as a whole, we cannot conclude that the district court's alleged consideration of outside information would have resulted in the rendition of an improper judgment.
We conclude that E.A.H. failed to demonstrate reversible error and overrule her first issue.
CONCLUSION
We affirm the district court's termination order.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: June 1, 2018