Opinion
No. 04-04-00770-CV
Delivered and Filed: October 12, 2005.
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-PA-00887, Honorable Fred Shannon, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Jeffrey Politte and Clarissa Morford appeal the judgment terminating parental rights to their three minor children, C.J.P., E.P., and T.I.P. Politte and Morford both contend that the evidence is factually insufficient to support the trial court's judgment. Morford further argues that the manner in which the trial court conducted the trial, particularly by admitting hearsay statements and documents, denied her due process right to a fair trial. We disagree and affirm the trial court's judgment.
Factual and Procedural Background
The evidence at trial showed that on March 19, 2003, after receiving a referral, Rhonda Sanchez and Patti DeLeon-Prieto, employees of the Texas Department of Protective and Regulatory Services ("DPRS"), visited the home of Jeffrey Politte and Clarissa Morford. During this first visit, Politte was at home with their three children; Morford, however, was at work. At first, Politte denied that his name was Jeffrey Politte, giving the DPRS workers a different name. Eventually, he admitted that he was Jeffrey Politte. The DPRS workers observed the home conditions, later describing the home as filthy, with exposed wires and electrical cords easily accessible to children. There were trash bags and food on the floor, dirty dishes in the kitchen, and roaches crawling all over the house. The children were scavenging for food, picking at dried cereal and crumbs on the floor. At one point during the visit, E.P., who was then two-years old, picked up a roach and put it in his mouth. Because Politte was the only parent home, he was given a safety plan for him and Morford to implement. The plan required them to improve the safety and cleanliness of the home, find a crib for the baby, and take appropriate action to obtain food stamps for the family. The DPRS workers returned two days later to find the home somewhat improved, although the parents still had failed to set up the crib or take steps toward obtaining food stamps. On March 25, 2003, DeLeon-Prieto followed up by visiting the home to go over some of the family-based services available to Morford to assist her in parenting the children. Politte, however, was arrested that same day, and, due to his incarceration, was absent throughout the subsequent DPRS visits. At trial, Politte testified that, upon sentencing, he had been given the option of serving four years in prison or being placed on probation, and that he had voluntarily chosen imprisonment.
On April 30, 2003, because Morford had not been cooperating with family-based services, DeLeon-Prieto, along with family-based services, returned to the home. At that point, the condition of the house had deteriorated, and, once again, there were piles of clothing in all the bedrooms, including a pile in the baby's crib, trash on the floor, and food particles lying around. There were also roaches all over the floor to the extent that the DPRS workers could not avoid stepping on them; some roaches even crawled onto the DPRS workers' paperwork. The three children were filthy and wearing only underwear. On May 15, 2003, the Department obtained a court order to remove the three children from the home. Upon removal, Morford and her mother, who was living in the home along with her boyfriend, became hysterical, and the police had to be called to effect the removal. Once the children were removed, they were placed in foster care. It was then discovered that their teeth were significantly decayed.
In late March 2004, because Morford had made progress by cooperating with family-based services and obtaining employment, the children were returned to her. Almost immediately following the children's return, however, Morford lost her job, and the home again began to deteriorate. On July 14, 2004, after discovering that C.J.P. had sustained two accidental injuries, DPRS workers Cillie Anderson and Katherine Avila visited the home unannounced. The three-year old answered the door, the one-year old attempted to crawl out the door, and the oldest child was asked to go get his mother. Although it was 10:30 a.m., the children had not eaten. The DPRS workers were concerned that Morford was not properly supervising the children and that the situation in the home was deteriorating.
DPRS also had concerns that Morford was associating with people who were a threat to the children's safety and well-being. This concern was reinforced when DPRS workers observed the children acting out sexually. During one unannounced visit, the three-year old, E.P., was continuously patting the buttocks of one of the DPRS workers. Additionally, E.P. had gestured to one of the DPRS workers in what she considered a sexually suggestive manner, by creating a "v" with his fingers, sticking his tongue through the "v", and wiggling it up and down. On August 6, 2004, DPRS worker Amy Muniz visited the children at their day care center. During the visit, C.J.P. disclosed to Muniz that a "big, big boy" was living with them whose name was "Monster" or "Juano." "Monster" was later discovered to be an alias of Ronald Hernandez. According to C.J.P., "Monster" had hit him on the chest and throat and had hit his brother, E.P., in the face. DPRS workers saw Hernandez with Morford in court on two different occasions, but he refused to identify himself. Hernandez had previously been convicted for indecency with a child, assault bodily injury (married) and was, before trial, again arrested for indecency with a child. Additionally, his own children had been removed by the State. On his Bexar County criminal history form, Hernandez listed Morford's home address as his address. Although Morford admitted that she knew of Hernandez, she denied having any kind of relationship with him. She did admit, however, that he accompanied her to court on one occasion. She also admitted that Hernandez's common law wife or girlfriend, Sandra Andrate, and her two children were, for a period of time, living with Morford and her children. DPRS later discovered that Andrate had a pending investigation with DPRS and was on probation for a felony offense. DPRS became concerned about Morford's general lack of cooperation.
On August 18, 2004, one of the DPRS workers interviewed C.J.P. at his school. C.J.P. told her that he and his brothers had been swimming in their apartment pool when his youngest brother's float tipped over, and he had to flip it back up. According to C.J.P., Morford had gone upstairs to talk to her friends. He also stated that he and his brothers had been left alone in the pool on more than one occasion. Morford denied that she had ever left her children unattended at the pool.
On August 31, 2004, DPRS again removed the children from Morford's possession, and on October 12-13th, a trial was held. Both Politte and Morford appeared at the trial and waived their right to a jury. The children were represented by a guardian ad litem who recommended that both parents' rights be terminated. At trial, Morford admitted that she had not provided a proper environment for her children and that she did not, at first, cooperate with DPRS. She also admitted that she had made a mistake by allowing her friend, Sandra Andrate, who was also under investigation by DPRS, to stay with her. And, Morford admitted to having tested positively for drugs at the beginning of DPRS's investigation. But, according to Morford, she had changed, and she had the help and support of two of her aunts. Both aunts and one of her friends testified on Morford's behalf, essentially stating that she had provided a clean home for her children and that her parental rights should not be terminated. Tricia Boone, a therapist who had treated Morford during the course of DPRS's investigation, also testified on Morford's behalf. Boone testified that Morford had made progress while undergoing therapy, and, as such, Boone could see no reason why Morford could not provide a positive home for her children.
Dr. Thomas Gaines, Jr., a psychologist who had performed an evaluation of Politte, also testified. Dr. Gaines diagnosed Politte as having an adjustment disorder with mixed anxiety and depressed mood, and having a history of marijuana abuse, which was in remission due to his incarceration. Dr. Gaines testified that Politte had adult antisocial behavior, with borderline intellectual functioning. Dr. Gaines was of the opinion that the care of the children should be transferred to relatives or foster parents. He did feel Politte could benefit from counseling and that he should participate in a drug rehabilitation and treatment program. Additionally, Dr. Gaines felt that before Politte's children could be returned to his care, he should be required to demonstrate that he had made significant changes in his attitudes and behavior. Dr. Gaines believed that Politte's prognosis was guarded due to the nature and chronicity of his problems.
After hearing the evidence, the court ordered the termination of both parents' rights. Appellants filed motions for new trial, which were denied, and both parents now appeal.
Sufficiency of the Evidence
Both Politte and Morford contend that the evidence is factually insufficient to support the trial court's finding that termination is in the best interest of the children. Politte further contends that the evidence is insufficient to support the trial court's findings that he engaged in certain acts or omissions specifically named in the Texas Family Code as grounds for termination.
Parental rights can be terminated only by a showing of clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegations sought to be established. Id. at 264 (citing Tex. Fam. Code. Ann. § 101.007 (Vernon 2002)).
When reviewing the factual sufficiency of the evidence in a parental termination case, we must give due consideration to evidence the factfinder could have reasonably found to be clear and convincing. Id. at 266. We must consider "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." Id. (citation omitted). We also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. "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.
Section 161.001 of the Texas Family Code permits a court to terminate parental rights if two elements are established. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002). First, the parent must have engaged in any one of the acts or omissions specifically named in the Texas Family Code as grounds for termination. Id. § 161.001(1); In re J.W., 152 S.W.3d 200, 204-05 (Tex.App.-Dallas 2004, pet. denied). Second, termination of the parent-child relationship must be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002); In re J.W., 152 S.W.3d at 204-05.
Here, the trial court found that Politte's and Morford's parental rights were terminated under section 161.001(1)(D), (E), and (O). As to Politte, the trial court also found that Politte did not timely file an admission of paternity, a counter-claim for paternity, or a voluntary paternity before the final hearing as required by section 161.002(b)(1). Additionally, the trial court found, as to both Politte and Morford, that termination was in the best interest of the children. "Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child[ren]'s best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has: . . .
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) 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; . . .
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child; . . .
Tex. Fam. Code Ann. § 161.001(1) (Vernon 2002).
A. Section 161.001(1)(E) — Jeffrey Politte
Upon a review of the record, for the reasons discussed below, we hold that a reasonable trier of fact could have formed a firm belief or conviction that Politte engaged in a course of conduct that endangered his children's emotional or physical well being pursuant to section 161.001(1)(E), and that removal was in the best interest of the children. As such, we need not address Politte's complaints under the other subsections.
As already stated, Morford does not challenge the trial court's findings under Section 161.001(1), but only challenges the trial court's finding that termination is in the best interest of the children.
Section 161.001(1)(E) allows termination when the parent engages in conduct or knowingly places the child with persons who engage in conduct which endangers the physical or emotional well-being of the child. Tex. Fam. Code. Ann. § 161.001(1)(E) (Vernon 2002). It requires us to look at the parent's conduct, including actions or omissions. In re D.T., 34 S.W.3d 625, 634 (Tex.App.-Fort Worth 2000, pet. denied). It is not necessary that the conduct be directed at the child or that the child actually suffer injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The parent-child relationship can be terminated for conduct directed at the other parent or other children, even when the behavior was not committed in the child's presence. Dir. of Dallas County Child Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex.App.-Dallas 1992, no writ). However, there must be evidence of endangerment to the child's physical or emotional well-being as the direct result of the parent's conduct. In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied).
With regard to Jeffrey Politte, the trial court made the following findings:
First, Mr. Politte has an extensive criminal history. He had been arrested numerous times and is a convicted felon. Mr. Politte was sentenced to four years in prison for Burglary of a Habitation and Retaliation. Also, Mr. Politte has been arrested several times for Theft and Assault Bodily Injury-Married. Furthermore, the court found that Politte will, in all reasonable probability, present a clear and present danger to his children in the future. The trial court additionally found that Politte was in the home and was well aware of the filthy conditions of the home. And, he chose to go to prison instead of serving probation which left his children to fend for themselves.
The evidence supports the trial court's findings. When the DPRS workers first visited the home, Politte was the only parent present. The three children were eating food off the floor, and one child actually tried to eat a roach. There were roaches crawling all over the house. There were dirty dishes in the kitchen and food and trash bags on the floor. Politte signed the family service plan and was present when the caseworker explained what the family should do to improve the home conditions. Furthermore, the evidence supports the finding that Politte had an extensive criminal history.
Politte argues that because he was in prison and was not present during most of the investigation, the evidence is insufficient to support termination of his parental rights. While imprisonment alone does not constitute engaging in conduct that endangers the emotional and physical well-being of a child, imprisonment is a fact properly considered on the issue of endangerment. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987); In re D.M., 58 S.W.3d 801, 812 (Tex.App.-Fort Worth 2001, no pet.). If imprisonment is based upon a certain type of voluntary, deliberate, and conscious course of conduct, then it is conduct which has endangered the emotional well-being of the child. In re K.M.M., 993 S.W.2d 225, 228 (Tex.App.-Eastland 1999, no pet.); In re J.N.R., 982 S.W.2d 137, 142 (Tex.App.-Houston [1st Dist.] 1998, no writ), disapproved on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002). Here, before Politte went to prison, he was aware that his children were living in an unsafe and unsanitary environment. Nevertheless, he chose to go to prison for four years rather than serve probation and be available to support his children.
After reviewing the record, we hold that pursuant to section 161.001(1)(E), a reasonable trier of fact could have formed a firm belief or conviction that Politte engaged in a course of conduct that endangered his children's emotional or physical well-being. Thus, the evidence is factually sufficient to support the judgment. See In re J.J. 911 S.W.2d 437, 440 (Tex.App.-Texarkana 1995, writ denied) (holding that a court could infer danger to children's well-being from father's physical abuse of his wife, use of illegal drugs, and imprisonment).
B. Best Interest of the Children: Politte and Morford
Both Politte and Morford challenge the trial court's finding that removal is in the best interest of the children. In considering whether removal is in the best interest of the children, the court weighs several factors: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parenting abilities of the individuals seeking custody, (5) the programs available to assist those individuals seeking custody in promoting the best interest of the child, (6) the plans for the child by the individuals or agency seeking custody, (7) the stability of the home or proposed placement, (8) the parent's acts or omissions indicating that the existing parent-child relationship is not a proper one, and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Trevino v. Tex. Dep't of Protective Regulatory Servs., 893 S.W.2d 243, 248 (Tex.App.-Austin 1995, no writ). This list is not exhaustive, nor is evidence required on all nine factors to support a finding terminating the parent's rights. Holley, 544 S.W.2d at 372; In re U.P., 105 S.W.3d 222, 230 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).
With these factors in mind, we review the evidence regarding the best interest of the children. Because the children were very young, they did not testify at trial, and thus we are unable to ascertain their desires. With regard to the children's emotional and physical needs, Politte and Morford have demonstrated that they are unable to provide for the physical and emotional needs of the children now and in the future. Politte is currently incarcerated, a choice he freely made, and is therefore unable to contribute to the physical and emotional well-being of the children. Morford has repeatedly tried and failed to provide an adequate home environment and has exposed the children to potentially dangerous individuals. Moreover, the present and future emotional and physical danger to the children is a very real concern. When DPRS workers made an unannounced visit, E.P., the three-year old, opened the door to them, the one-year old tried to crawl out of the house, and the children had not eaten by 10:30 a.m. Also, when they were first removed from the home, the children had significant dental decay and were very dirty. Additionally, C.J.P. stated to one of the DPRS workers that he and his brothers would swim in the apartment pool, unsupervised, and that he had to save his one-year old brother when his float flipped over. Finally, the unsanitary conditions which led to the persistent roach problem presented a danger to the children.
With regard to Morford's parenting abilities, the evidence at trial suggests that she is either unable or unwilling to properly parent her children. And, while there are programs available to assist her, her cooperation has been questionable and she has not complied with much of the Department's safety plan on a long-term basis. Politte has been diagnosed with numerous psychological problems, has an ongoing substance abuse problem which is now in remission due to incarceration, is a convicted felon, has been arrested for domestic violence, and chose to go to prison over attempting probation, ensuring he would be unable to provide for his family. Given these facts, he has not demonstrated an ability or willingness to care for his children. The evidence shows that the Department plans to place the three children for adoption.
After reviewing this evidence, we conclude that the trial court's determination that terminating the parental rights of Politte and Morford is in the best interest of the children, is supported by clear and convincing evidence that is factually sufficient. We therefore overrule this issue.
Due Process Right to a Fair Trial
In her second issue on appeal, Morford argues that the trial court, in its manner of conducting the trial, denied Morford her due process rights to a fair trial. To reverse a judgment on the ground of judicial impropriety, we must find both judicial impropriety and probable prejudice to the complaining party. Bott v. Bott, 962 S.W.2d 626, 631 (Tex.App.-Houston [14th Dist.] 1997, no writ). We examine the entire record to determine whether these factors are present. Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex.App.-Houston [1st Dist.] 1994, writ denied).
Specifically, Morford complains that the trial court:
(1) Improperly assumed the role of advocate for the State by directing the course of the trial and conducting questioning of the State's witnesses;
(2) Relied upon affidavits of three Department caseworkers which contained inadmissible hearsay;
(3) Admitted into evidence Morford's drug test results that contained inadmissible hearsay; and
(4) Improperly assumed the role of advocate for the State by directing the course of the trial and conducting questioning of the State's witnesses.
The first three of Morford's complaints relate to evidentiary rulings. She does not assign error to these specific adverse rulings, but instead argues that, taken together, they show an impropriety on the part of the trial judge. Judicial rulings alone, however, almost never give rise to a valid argument for a bias or partiality motion. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). Furthermore, "a trial court has the inherent power to control the disposition of cases `with economy of time and effort for itself, for counsel, and for litigants.'" Id. (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). And, the trial judge may intervene to maintain control of the courtroom, expedite the proceedings, and prevent a possible waste of time. Id. at 241. The trial judge's actions in this case in directing the order in which he wanted to hear evidence and in questioning the caseworkers regarding their affidavits were nothing more than the trial judge's proper exercise of his inherent power to control the disposition of the case and to expedite the proceedings. The trial judge did discuss the DPRS workers' affidavits, but made a number of comments to the effect that he would not consider the hearsay contained in the affidavits. Morford complains that despite the trial court's statements that he would not consider hearsay, he did, in fact, state in his Findings of Fact and Conclusions of Law that he would take judicial notice of the entire Court's file without limitation. Thus, according to Morford, the trial court improperly considered the hearsay statements contained in the caseworkers' affidavits. Morford, however, fails to point out specifically which statements in the affidavits constitute hearsay. Further, a review of the entire record shows that much of the contents of the affidavits were proven by other admissible testimony. And, a review of the record shows numerous favorable rulings by the trial court in response to Morford's attorney's hearsay objections. With regard to the trial court's admitting the results of Morford's drug tests into evidence, Morford herself admitted she had tested positive for drugs on two occasions. Therefore, even if the trial court erred in admitting the evidence, it was not harmful. Likewise, the trial court's admission of the DPRS worker's testimony regarding Ronald Hernandez statement that he had been in Morford's home was not harmful. There was other evidence that Morford and Hernandez had had some contact with one another. Thus, although Morford has pointed to some places in the record in which the court admitted hearsay evidence, there has been no demonstration that the judgment turned on these admissions or that they harmed Morford. Consequently, after reviewing the entire record, we are unable to say that the trial court, in its conduct of the trial, denied Morford her due process right to a fair trial. We overrule Morford's second issue on appeal.
Ordinarily, an appellant's proper remedy is to assign error concerning individual adverse rulings. Grider v. Boston, Inc., 773 S.W.2d 338, 346 (Tex.App.-Dallas 1989, writ denied), disapproved on other grounds by Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex. 2002).
Conclusion
Having overruled all issues on appeal, we affirm the trial court's judgment.