Opinion
No. 05-15-01069-CV
02-22-2016
IN THE INTEREST OF A.C.M., A MINOR CHILD
On Appeal from the 256th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-12-19569-Z
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Schenck
Appellant Justin M. (Father) appeals from a judgment terminating his parental rights as to his son A.C.M. On appeal, in six issues, Father argues he was not afforded effective assistance of counsel, the trial court erred in not permitting him to call witnesses, and the evidence is legally and factually insufficient to support any of the statutory grounds upon which his parental rights were terminated. For the following reasons, we affirm the trial court's judgment. Because the dispositive issue in this case is settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
A.C.M. was born on October 11, 2007. Father and A.C.M's mother (Mother) have never been married, and their relationship had, for the most part, ended by the date of A.C.M's birth. Father's parental rights were terminated at the request of Mother. Mother initially sought to terminate Father's parental rights in May 2011. At that time, Father was incarcerated. Father was released from prison in June 2012. After his release, the court-appointed amicus attorney announced he would not approve the termination. As a result, Mother nonsuited the case.
A few months later, Father was again incarcerated for another offense. As a result, Mother filed a second suit seeking to terminate his parental rights. Father answered pro se. On June 24, 2013, while Father was still incarcerated, Mother served discovery requests upon him. Father did not timely respond and, on August 21, 2013, Mother moved to compel him to respond. On August 29, 2013, Father filed a letter in response to Mother's motion, advising the trial court that he was incarcerated, did not have access to documents he needed to respond to the discovery requests, and did not have the legal knowledge necessary to respond to the discovery requests. Father asked the trial court to re-appoint the counsel that had been appointed to represent him in the first case to assist him in the second case. On September 18, 2013, the trial court ordered Father to respond to the discovery requests by October 18, 2013. Father did not respond to the discovery requests by October 18. Instead, he sent a letter to the trial court asking the trial court not to grant any motions filed by Mother until he was represented by counsel, requested an extension of time to respond to the discovery requests, and requested re-appointment of his prior counsel to represent him. On March 25, 2014, Mother filed a motion to strike Father's pleadings for failure to answer discovery requests. On March 26, 2014, an associate judge entered an order granting the motion, striking Father's pleadings, and prohibiting Father from presenting any evidence in defense of Mother's claim.
On October 9, 2014, the trial court appointed attorney James Fordham, Jr. to represent Father. The case proceeded to trial on June 15, 2015. At trial, Mr. Fordham asked the trial court to reconsider the order striking Father's pleadings and preventing him from presenting evidence. He admitted that Father sent him draft answers to discovery when he was appointed as counsel, but he misread what it was and only realized it was the responses a few days before trial. He stated he would have sent the responses to opposing counsel, but he did not know how to scan and e-mail documents. The trial court denied the motion to reconsider, but allowed Father to testify by telephone from prison due to the serious nature of the proceeding, and out of a concern for the best interest of the child. The other witnesses at trial were Mother and Mother's husband. Mr. Fordham also asked the trial court to continue the trial setting until Father is released from prison, which Mr. Fordham argued and Father testified later at trial would be in November. The trial court denied that motion as well. At the conclusion of the trial, the court ordered Father's parental rights terminated. This appeal followed.
ISSUES PRESENTED
Father raises six issues on appeal. He argues (1) he did not have effective assistance of counsel, (2) the trial court abused its discretion in prohibiting him from calling witnesses, and (3) the evidence is legally and factually insufficient to prove (a) Father knowingly placed or knowingly allowed A.C.M. to remain in conditions or surroundings which endangered his physical or emotional well-being, (b) Father engaged in conduct or knowingly placed A.C.M. with persons who engaged in conduct which endangered his physical or emotional well-being, (c) Father failed to support A.C.M. in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition, and (d) termination of Father's parental rights is in the best interest of A.C.M.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Texas Supreme Court has adopted the standard set forth by the United States Supreme Court for criminal cases in Strickland v. Washington in parental-rights termination cases. In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003). Thus, a parent must show both that his attorney's performance was deficient and fell below an objective standard of reasonableness, and the deficient performance prejudiced his defense. Id. at 545. To show prejudice, the parent must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Father claims his trial counsel's performance was deficient because he did not timely seek to set aside the order striking his pleadings and preventing him from presenting evidence, and because he did not send responses to discovery despite having received them from Father. Assuming, without deciding, trial counsel's performance was deficient, the record does not contain Father's discovery responses or establish who his witnesses would have been and what they would have testified to, or otherwise establish the evidence he would have presented would have made a difference in the outcome of the trial. Consequently, Father has not shown that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. We overrule Father's first issue.
The U.S. Supreme Court has noted that Texas procedure makes it "virtually impossible" for appellate counsel to present an adequate ineffective assistance of trial counsel claim on direct review. Trevino v. Thaler, 569 U.S. —, 133 S. Ct. 1911, 1918 (2013). This is because the inherent nature of most ineffective assistance of trial counsel claims means that the trial court record "will often fail to 'contai[n] the information necessary to substantiate' the claim." Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc)). In the context of criminal convictions, a defendant can raise ineffective assistance of counsel in post-conviction writ proceedings. TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015). Such a proceeding is not available in the context of parental termination. --------
EXCLUSION OF EVIDENCE
In his second issue, Father argues the trial court erred in denying Father the opportunity to call witnesses. We review the trial court's admission or exclusion of evidence under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Texas Rule of Civil Procedure 193.6 permits a trial court to admit evidence not provided during discovery if the offering party shows either (1) good cause for its discovery failure or (2) the lack of unfair prejudice or unfair surprise to the opposing party. The trial court has discretion to determine whether the offering party met its burden. Bellino v. Comm'n for Lawyer Discipline, 124 S.W.3d 380, 383-84 (Tex. App.—Dallas 2003, pet. denied).
Father claims good cause existed for his failure to timely answer the discovery requests because he was incarcerated during the pendency of the case, and lacked the resources to work on his own case while he was in jail. In addition, Father claims his failure to identify witnesses did not unfairly surprise or prejudice Mother because she recognized the people in the courtroom. Father has failed to demonstrate how his incarceration impeded his ability to identify persons he might call to testify on his behalf. In addition, Father has not cited any authority to support a finding of lack of unfair surprise or prejudice simply because Mother recognizes the people Father planned to call to testify on his behalf, and we find none. We conclude Father failed to demonstrate that there was good cause for his failure to timely identify his witnesses, and that he failed to establish a lack of unfair surprise or prejudice to Mother. Consequently, the trial court did not abuse its discretion in excluding Father's witnesses under rule 193.6. We overrule Father's second issue.
SUFFICIENCY OF THE EVIDENCE
In his third through sixth issues, Father challenges the sufficiency of the evidence to support termination of his parental rights. Proceedings to terminate parental rights under the Texas Family Code require proof by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015). The code defines "clear and convincing evidence" as "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." Id. §101.007. When the legal sufficiency of the evidence is challenged:
[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. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. 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.In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). When factual sufficiency of the evidence is challenged, only then is disputed or conflicting evidence under review. Id. at 345. "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." In re J.F.C., 96 S.W.3d at 266. In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a factfinder's findings. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The trial court's termination order was based on three predicate violations (section 161.001(b)(1) (D), (E), (F)), and on a best-interest-of-the-child finding under section 161.001(b)(2). If multiple predicate violations are found by the trial court as a basis for termination, we will affirm on any one violation that is established by clear and convincing evidence. See In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied).
Mother concedes that she failed to present sufficient evidence that Father failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition. This is the predicate violation under subsection (F). We therefore sustain Father's fifth issue and consider whether the evidence is sufficient to support termination under subsections (D) or (E).
Subsection (D) requires evidence that the parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered their physical or emotional well-being. TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Subsection (E) requires evidence the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being. TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
Endangerment means to expose to loss or injury, to jeopardize. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Under subsection (D), it is necessary to examine evidence related to the environment of the children to determine if the environment was the source of endangerment to the children's physical or emotional well-being. In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort Worth 2001, pet. denied) (op. on reh'g). Conduct of a parent in the home can create an environment that endangers the physical and emotional well-being of a child. In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). Parental and caregiver illegal-drug use and drug-related criminal activity supports the conclusion that the children's surroundings endanger their physical or emotional well-being. See In re S.D., 908 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).
Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ). Additionally, termination under subsection (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. In re D.T., 34 S.W.3d at 630. Drug addiction and its effect on a parent's life and ability to parent may establish an endangering course of conduct. Dupree, 907 S.W.2d at 84. Mere imprisonment will not, standing alone, constitute engaging in conduct that endangers the physical or emotional well-being of the child. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). However, if all the evidence, including imprisonment, shows a course of conduct that has the effect of endangering the physical or emotional well-being of the child, a finding under subsection (E) is supportable. See id. at 533-34.
Because the evidence concerning these two statutory grounds for termination is interrelated, we consolidate our examination of them. In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (recognizing the link between a parent's conduct and a child's conditions and surroundings). The record contains the following evidence of subsection (D) environmental endangerment and subsection (E) course of conduct endangerment of the physical or emotional well-being of A.C.M. This was the second proceeding whereby Mother sought to terminate Father's parental rights. After the first case was dismissed, Father continued his illegal-drug use and committed other crimes in furtherance thereof. He did so knowing his parental rights were in jeopardy. More particularly, Father used heroin. Father admitted to having been charged with approximately ten felonies and approximately the same number of misdemeanors. At the time of trial, Father was incarcerated for five felonies—all for theft. Father admitted to having used heroin, methamphetamine, ecstasy, and marijuana. He used marijuana in the presence of A.C.M and allowed A.C.M. to be in the presence of friends who used drugs. A.C.M. was present at Father's residence when another man died from an overdose. A.C.M. was also present when police handcuffed and arrested Father for driving a stolen car.
We have carefully reviewed the entire record. Looking at all the evidence in the light most favorable to the trial court's finding, giving due consideration to evidence that the trial court as the factfinder could reasonably have found to be clear and convincing, we hold that a reasonable trier of fact could have formed a firm belief or conviction that Father knowingly placed or knowingly allowed A.C.M. to remain in conditions or surroundings that endangered his physical or emotional well-being and that he engaged in conduct or knowingly placed A.C.M. with persons who engaged in conduct that endangered A.C.M.'s physical or emotional well-being. We overrule Father's third and fourth issues.
In his sixth issue, Father challenges the sufficiency of the evidence to support the trial court's finding that termination is in the best interest of A.C.M. Some of the factors an appellate court may consider in ascertaining the best interest of a child include the nonexhaustive list set forth in Holley v. Adams as the principal balancing factors used to determine the best interest of the children. 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the children; (6) the plans for the children by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.
Father's criminal convictions show a pattern of conduct that is detrimental to child-rearing and thus demonstrate that the existing parent-child relationship is not a proper one and Father's actions pose emotional and physical danger to A.C.M. Father has not attempted to have a relationship with A.C.M and thus has not attended to the emotional and physical needs of A.C.M. A.C.M. was born on October 11, 2007. Father has had no contact with A.C.M. since May 9, 2009, the date of the overdose at Father's residence. A.C.M. has the financial and emotional support of his Mother and her husband and thus is in a stable home where his emotional and physical needs are being addressed. Based on all these considerations, we conclude the evidence supports a finding that termination is in the best interest of A.C.M. We overrule Father's sixth issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 151069F.P05
JUDGMENT
On Appeal from the 256th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-12-19569-Z.
Opinion delivered by Justice Schenck. Justices Lang-Miers and Brown participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee recover her costs of this appeal from appellant. Judgment entered this 22nd day of February, 2016.