Opinion
No. 09-10-00304-CV
Submitted on October 12, 2010.
Opinion Delivered October 21, 2010.
On Appeal from the 1st District Court, Jasper County, Texas, Trial Cause No. 28203.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
The father of Y.C. and the mother of J.S., B.I., and Y.C. appeal the order of termination of their parental rights following a jury trial. Appellants raise four issues that they contend require reversal of this case on appeal. We affirm the trial court's judgment.
The trial court ordered the appellants to pay $2,000 toward the cost of the reporter's record. The trial court also found that an appeal would be frivolous. The appeal has been submitted on the record of the hearing, conducted pursuant to section 263.405 of the Texas Family Code. See TEX. FAM. CODE. ANN. § 263.405(d), (g) (Vernon 2008). We review the record of the hearing to determine whether the trial court erred in finding that an appeal would be frivolous. See In re M.S., No. 09-08-266-CV, 2008 WL 3928487, at *1 (Tex. App.-Beaumont Aug. 28, 2008, no pet.) (mem. op.).
First, appellants contend the trial court abused its discretion by permitting a court-appointed special advocate for the guardian ad litem, CASA ("CASA"), to sit directly in front of thirteen-year-old B.I. while B.I. testified. Because the trial was conducted in a very small courtroom, the representative of the guardian ad litem sat within four or five feet of B.I. According to appellants, the CASA advocate smiled encouragingly at B.I. while B.I. testified about sexual abuse committed upon her by her step-father, the appellant D.C. Appellants complain that the CASA advocate's proximity to the witness lent credibility to the child witness. Appellants concede that another intermediate appellate court decided this issue adversely to the appellants' position in an appeal in a criminal case. See Mosby v. State, 703 S.W.2d 714, 716-17 (Tex. App.-Corpus Christi 1985, no pet.). They argue that this case is distinguishable from Mosby because the ad litem in that case sat fifteen to twenty feet behind the witness chair, while the CASA advocate in this case sat four to five feet in front of the witness. During the post-trial hearing, counsel for the Department explained that the guardian ad litem sat next to the attorney ad litem and to the counsel for the Department because there were only two tables available. Appellants do not suggest that any coaching occurred.
In a termination suit filed by a governmental entity, the trial court may appoint a charitable organization composed of volunteer advocates to appear at court hearings as a guardian ad litem for the child. TEX. FAM. CODE. ANN. § 107.031(a) (Vernon 2008). A guardian ad litem is entitled to appear at all hearings. TEX. FAM. CODE. ANN. § 107.002(c)(4) (Vernon 2008). The trial court also controls the presentation of testimony. See TEX. R. EVID. 611(a). The Family Code allows a CASA advocate to be present at the hearing, and the appellants have not suggested that the CASA advocate behaved improperly. Given the trial court's discretion in controlling the courtroom, we conclude that issue one presents no substantial error for our review.
In their second issue, appellants contend the trial court erred in permitting an unsworn witness to remain in the courtroom during testimony by other witnesses. The trial court did not place the father of J.S. and B.I. under the Rule. See TEX. R. EVID. 614. The judgment establishes that the father of J.S. and B.I. appeared in the case as a respondent. The trial court appointed this person as the permanent managing conservator of J.S. and B.I. in the judgment. Because the rule relating to exclusion of witnesses does not apply to a party to the case, issue two does not raise a substantial question for review. Id.
Issue three challenges the legal and factual sufficiency of the evidence supporting the jury's finding that termination would be in the best interest of the child Y.C. See TEX. FAM. CODE ANN. § 161.001(2) (Vernon Supp. 2010). Appellants do not challenge the jury's findings that the appellants endangered the children. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E) (Vernon Supp. 2010). The evidence that the Department presented to support the endangerment findings concerned appellant D.C.'s sexual abuse of his step-daughter, B.I., and appellant V.C.'s failure to protect B.I. from the sexual abuse that occurred in the appellants' household. Based on B.I.'s testimony at trial, the abuse occurred when she was either eight or nine years of age, or when she was ten years of age, as she had stated in her initial videotaped interview. Y.C. is a seven-year-old female.
Appellants argue that the jury's finding that termination would be in the best interest of Y.C. is not supported by the evidence. Appellants' arguments assert that Y.C. is too young to express her desires, the Department presented no evidence that Y.C. has any special emotional needs, and the Department failed to show that the relationship between Y.C. and her parents was not a proper one. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). However, the absence of evidence about some of the considerations that may be factored into a best interest determination "would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Conduct "inimical to the very idea of child-rearing" could certainly have a bearing on the parents' fitness to raise a child. Id. at 28. Sexual abuse is conduct that endangers a child's physical or emotional well-being, and sexual abuse of one child in the home endangers the physical and emotional well-being of other children in the same home. In re L.C., 145 S.W.3d 790, 796 (Tex. App.-Texarkana 2004, no pet.). Given the history of child sexual abuse in the household, the jury could form a firm conviction or belief that termination of appellants' parental rights is in the best interest of Y.C. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). The appellants' third issue does not present a substantial question for appellate review.
The fourth and final issue contends the trial court erred in permitting counsel for the Department to refer to an out-of-court statement by a person who did not testify during the trial. During closing argument, counsel apparently stated that Y.C., rather than B.I., had made outcry. Appellants contend the argument violated the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Sixth Amendment applies only to criminal prosecutions. See U.S. CONST. amend. VI. Issue four does not present a substantial question for appellate review.
The trial court did not err in determining that an appeal would be frivolous. We affirm the trial court's judgment.
AFFIRMED.