Opinion
04-22-00045-CV
07-27-2022
IN THE INTEREST OF J.B.P. a/k/a J.B.S., J.J.M., and J.R.P., Children
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-02425 Honorable Martha Tanner, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Beth Watkins, Justice
MEMORANDUM OPINION
LUZ ELENA D. CHAPA, JUSTICE
This is an accelerated appeal from an order terminating appellant C.P.'s parental rights to her children, J.B.P. a/k/a J.B.S., J.J.M., and J.R.P. C.P. argues the trial court committed reversible error and violated her due process rights by: (1) denying her legal representation; (2) relying on information from an extrajudicial source; (3) engaging in an ex parte communication; and (4) excluding one of C.P.'s witnesses from testifying. C.P. also argues the evidence is legally and factually insufficient to support the trial court's finding under subsection E of section 161.001(b)(1) of the Texas Family Code. We affirm the trial court's order of termination.
To protect the identities of the minor children in this appeal, we refer to the parent and children by their initials. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
The Texas Department of Family and Protective Services became involved with C.P. in September 2020 when J.R.P. tested positive at birth for marijuana. The Department attempted to work with C.P. through Family Based Safety Services, but C.P. failed to comply with the Department's requirements. By December 2020, the Department initiated emergency removal proceedings by filing a petition seeking temporary managing conservatorship of the children and termination of C.P.'s parental rights. At the time of removal, J.B.P. was two years old; J.J.M. was one year old; and J.R.P. was two months old.
On December 4, 2020, the trial court signed an emergency order of removal, naming the Department as temporary managing conservator of the children, and the Department placed the children with an unrelated foster family. The trial court also appointed an attorney to represent C.P. and scheduled an adversarial hearing. Following the adversarial hearing, the trial court ordered C.P. to undergo a psychological evaluation, attend counseling sessions, complete parenting classes, complete a drug and alcohol dependency assessment, cooperate with all random drug testing, and comply with all provisions of the Department's service plan. The trial court's order further provided the failure to comply with any of these requirements could result in the termination of C.P.'s parental rights.
After several status hearings, the Department filed a motion requesting to extend the automatic dismissal date from December 6, 2021 to June 4, 2022. The case proceeded to a Zoom trial on December 2, 2021. When the trial court called for announcements, it stated it read the Child Advocates San Antonio (CASA) report, wanted to resolve the case as soon as possible, and asked everyone to state their positions on the Department's motion to extend. C.P.'s attorney was not present during this time, and the trial court heard statements from the Department's attorney and the children's attorney ad litem. The Department argued C.P. was working on her services and making changes, and it was seeking a three-month extension to determine whether C.P. was making the necessary changes as ordered by the service plan. The children's ad litem attorney argued she was ready for trial and further delay would be harmful to the children, detailing at C.P.'s last visitation, C.P. fed J.B.P. food that caused her a bad reaction even though C.P. knew J.B.P. had gastrointestinal problems. C.P. also made a statement regarding her attempt to complete services. While C.P. made her statement, her attorney appeared in the Zoom waiting room, and the court manager admitted her. C.P.'s attorney stated she was not ready to proceed with trial, did not oppose the Department's request for a three-month extension, and explained she was currently on a break from a criminal jury trial pending in another court.
The trial court indicated it would call the first witness with C.P.'s counsel present and then recess until a more convenient day for the attorneys and parties. When asked for its ruling on the Department's motion, the trial court stated the motion was denied. The trial court then heard testimony from a Department caseworker, called for a recess, and set the next trial date for January 14, 2022. At the January trial setting, the trial court heard testimony from multiple witnesses and ultimately found by clear and convincing evidence C.P. engaged in conduct or knowingly placed her children with persons who engaged in conduct endangering their physical or emotional well-beings and failed to comply with court-ordered provisions of the family service plan. See Tex. Fam. Code § 161.001(b)(1)(E) & (O). The trial court also found by clear and convincing evidence termination of C.P.'s parental rights was in the children's best interest. See id. § 161.001(b)(2). C.P. now appeals, arguing the trial court violated her due process rights and the evidence is insufficient to support the trial court's finding under subsection E.
Due Process Rights
Legal Representation
C.P. first argues the trial court violated her due process rights by denying her legal representation. Specifically, she argues the trial court reversibly erred when it called the case for announcements and heard argument concerning the Department's motion to extend the automatic dismissal date without her attorney present. According to C.P., the trial court's consideration of the Department's motion was a critical stage of the litigation, and C.P. had an absolute right to have her attorney present. C.P. further contends the trial court allowed C.P. to make several self-incriminating statements without admonishing her, and such conduct demonstrated the trial court's improper bias.
Section 107.013(a)(1) of the Texas Family Code provides in a suit filed by a governmental entity seeking termination of the parent-child relationship, the trial court shall appoint an attorney ad litem to represent an indigent parent's interests. See id. § 107.013(a)(1). A trial court's complete failure to appoint an attorney to represent an indigent parent constitutes reversible error. In re V.L.B., 445 S.W.3d 802, 806 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Additionally, a trial court's appointment should occur as soon as possible, particularly before the next critical stage of the proceedings. Id. at 807. In a termination proceeding, any stage where substantial rights of the parties may be affected constitutes a critical stage. In re J.O.A., 262 S.W.3d 7, 18 (Tex. App.-Amarillo 2008), modified on other grounds, 283 S.W.2d 336 (Tex. 2009). This includes a hearing, mediation, pretrial conference, or trial on the merits. V.L.B., 445 S.W.3d at 807. Any delay in appointment may render the ultimate appointment a "toothless exercise and irreparably impair the parent's ability to defend the case or regain custody of the child." Id.
We disagree with C.P.'s contention asserting the trial court's conduct deprived her of legal representation and constituted a violation of her due process. Although the lack of representation during a critical stage of a termination proceeding amounts to reversible error, the record here shows this is not what happened. Cf. In re J.A.B., 562 S.W.3d 726, 729-30 (Tex. App.-San Antonio 2018, pet. denied) (concluding presumption of prejudice was warranted as to second prong of ineffective assistance analysis when counsel was absent for virtually all of Department's case-in-chief). In this case, the trial court immediately appointed an attorney to represent C.P. when the Department filed its petition. Then, when the trial court called for announcements, it recognized C.P.'s attorney was absent and waited to rule on the Department's pending motion. Counsel was absent only when the trial court called the case for announcements and started hearing argument on the Department's pending motion. The trial court made a conscious decision to wait to rule on the Department's motion or proceed to trial until C.P.'s attorney was present. Accordingly, we conclude the trial court did not deny C.P. legal representation during a critical stage of trial.
Turning to C.P.'s argument regarding her statement made without the presence of counsel, there is nothing in the record indicating the trial court "prodded" or "prompted" C.P. into making a statement without her attorney present. The record shows while the children's ad litem argued against the Department's request for an extension, the trial court noticed C.P.'s attempt to speak. The trial court advised C.P. she was on mute, and C.P. unmuted herself and told the trial court she wanted to make a statement. She explained she took full responsibility for her actions, acknowledged she started late on her services, and emphasized she had changed and asked for another chance. At no point did the trial court ask C.P. questions, and the court manager admitted C.P.'s counsel when she appeared in the Zoom waiting room.
As to C.P.'s argument asserting the trial court reversibly erred by failing to admonish her, section 107.013 requires a trial court to admonish a parent about her right to legal representation only if the parent is unrepresented. See Tex. Fam. Code § 107.013(a-1). Here, C.P. was represented by counsel, and the trial court waited for C.P.'s counsel to appear before moving forward. Accordingly, we conclude the trial court's conduct did not demonstrate improper bias, and we overrule C.P.'s due process argument alleging the trial court deprived her of legal representation.
CASA Report
C.P. next argues the trial court reversibly erred by independently investigating the matter and relying on the CASA report when it denied the Department's request to extend the dismissal date. To support her assertion, C.P. notes the CASA report had not been admitted into evidence, and therefore, the trial court relied on an extrajudicial source in making its ruling.
A trial court cannot rely on evidence not admitted at trial to support its ruling. See In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.-San Antonio May 22, 2019, no pet.). However, a trial court is presumed to judicially know the status of a case. In re J.E.H., 384 S.W.3d 864, 869 (Tex. App.-San Antonio 2012, no pet.). It is also within a trial court's discretion to consider the procedural history of a case to determine whether to continue the case or to extend the dismissal deadline. See In re A.L.H., No. 04-20-00452-CV, 2021 WL 1110612, at *2 (Tex. App.-San Antonio Mar. 24, 2021, pet. denied) (mem. op.); In re R.H., No. 02-19-00273-CV, 2019 WL 6767804, at *2 (Tex. App.-Fort Worth Dec. 12, 2019, no pet.) (mem. op.).
Here, there is nothing in the record indicating the trial court relied on the contents of the CASA report when it denied the Department's request to extend the dismissal deadline. Instead, the record shows after the trial court called for announcements, it advised the parties what it had reviewed and expressed its desire to start the case before the twelve-month deadline. After hearing argument on the Department's motion and considering C.P.'s counsel's availability, the trial court denied the Department's motion, decided to call the first witness, and reset the case for a later time "[b]ecause of this 12 month coming upon us." At no point did the trial court reference the CASA report or its contents as the basis for its ruling. Accordingly, we conclude the trial court's ruling was not an abuse of discretion, and we overrule C.P.'s contention. See R.H., 2019 WL 6767804, at *2; J.E.H., 384 S.W.3d at 869.
Ex Parte Communication
C.P. contends the trial court violated her due process rights by engaging in an impermissible ex parte communication. According to C.P., the trial court's conduct-specifically, reading the CASA report, hearing the parties' positions on the Department's motion without C.P.'s attorney present, and allowing C.P. to speak without her attorney-constitutes an ex parte communication.
An ex parte communication is a communication involving "fewer than all of the parties who are legally entitled to be present during the discussion of any matter." Amir-Sharif v. Tex. Dep't of Fam. & Protective Servs., No. 05-13-00958-CV, 2015 WL 4967239, at *6 (Tex. App.- Dallas Aug. 20, 2015, pet. denied) (mem. op.). Such communications "are barred in order to ensure that every person who is legally interested in a proceeding is given the full right to be heard according to law." Id. Canon 3 of the Texas Code of Judicial Conduct memorializes the prohibition against ex parte communications, prescribing "[a] judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law" and "[a] judge shall not initiate, permit, or consider ex parte communications." Tex. Code Jud. Conduct, Canon 3.
Here, the record shows all parties legally entitled to be present were present, either in person or by and through their counsel, when the trial court announced it had read the CASA report and heard every party's position on the Department's motion. All parties had access to the CASA report because it was part of the trial court's file. C.P. does not point us to authority, nor have we found any, characterizing court filings as an ex parte communication. Additionally, we are not persuaded by C.P.'s characterization of the trial court's conduct at the beginning of the proceeding as an ex parte communication because the communications of which she complains occurred in open court and did not involve any rulings made without the presence of her counsel. See Amir-Sharif, 2015 WL 4967239, at *6 (concluding complained-of communications taking place without appellant being present did not amount to ex parte communication prejudicing appellant because, among other things, communications occurring in appellant's absence concerned matters raised with appellant present and did not involve any rulings or determinations). The record reflects the trial court accorded C.P. and her attorney the opportunity to be heard before ruling on the Department's motion and deciding how to proceed. Accordingly, we conclude the trial court did not engage in an ex parte communication, and we overrule C.P.'s challenge.
Witness-Sequestration Rule
In her final due process argument, C.P. asserts the trial court committed reversible error by excluding one of her witnesses, Akeela Basley-the visitation monitor-from testifying because Basley violated Texas Rule of Civil Procedure 267. According to C.P., the trial court had complete control over who was allowed in the virtual courtroom, and it allowed Basley to remain in the virtual courtroom after the witness-sequestration rule had been invoked.
Texas Rule of Evidence 614 and Texas Rule of Civil Procedure 267 govern the sequestration of witnesses. Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 116 (Tex. 1999); see Tex. R. Civ. P. 267(a); Tex. R. Evid. 614. Under these rules (collectively, the "Rule"), at the request of any party, witnesses on both sides are sworn and then removed from the courtroom and relocated to another place where they cannot hear the testimony of other witnesses. Flores, 1 S.W.3d at 116-17; see Tex. R. Civ. P. 267(a); Tex. R. Evid. 614. "The Rule is mandatory; it provides that nonexempt witnesses 'shall' be excluded upon request by any party." In re C.N.A., No. 11-14-00153-CV, 2014 WL 6755740, at *3 (Tex. App.-Eastland Nov. 26, 2014, no pet.) (mem. op.). A violation of the Rule occurs when a nonexempt, potential witness stays in the courtroom during the testimony of another witness. Flores, 1 S.W.3d at 117. "When the Rule is violated, the trial court may, taking into consideration all of the circumstances, allow the testimony of the potential witness, exclude the testimony, or hold the violator in contempt." Id. (footnote omitted). We review a trial court's handling of a violation for an abuse of discretion. Id. at 117-18.
When the trial reconvened in January, the trial court called for announcements and asked whether it needed to wait before allowing any of the witnesses into the virtual courtroom. C.P.'s attorney stated she planned to invoke the Rule, and the trial court stated: "Let's go ahead and do that now. We'll just notify everybody that's in the waiting room." The trial court then invoked the Rule and instructed "if you're not a party to the lawsuit, you must remain outside the presence and hearing of any of the testimony." The trial court continued with announcements, and when the Department called its first witness, C.P.'s attorney invoked the Rule. The trial court reviewed who was in the virtual courtroom and instructed one of the witnesses, Department caseworker Boryana Veneva, to exit to the virtual waiting room. The case proceeded, and when C.P.'s attorney called Basley as a witness, Basley stated she had been in the courtroom throughout the entire proceeding. C.P.'s attorney then stated, "Okay. Then I guess I can't call her, Judge, if she's been here the whole time." The trial court agreed, and C.P.'s attorney called her next witness.
Contrary to C.P.'s assertion, there is nothing in the record showing the trial court abused its discretion when deciding to exclude Basley as a witness. When C.P.'s attorney invoked the Rule, she was obligated to ensure her witnesses complied with the Rule, and there is nothing in the record showing C.P.'s attorney brought Basely's presence in the virtual courtroom to the trial court's attention. See Flores, 1 S.W.3d at 120 (stating party who invoked the Rule bears burden to ensure its witnesses comply with the Rule). Instead, the record shows C.P.'s attorney invited the error of which she now complains by informing the trial court on the record she could not call Basley as a witness because Basley had been present. See In re C.G., No. 02-20-00087-CV, 2020 WL 4518590, at *3 (Tex. App.-Fort Worth Aug. 6, 2020, pet. denied) (mem. op.) (reasoning appellant invited error when it encouraged trial court to take specific action and then faulting trial court for taking such action). Accordingly, we conclude the trial court's decision to exclude Basley did not constitute an abuse of discretion, and we overrule C.P.'s final due process argument.
Sufficiency of the Evidence
Lastly, C.P. contends the evidence is legally and factually insufficient to support the trial court's finding under subsection E of section 161.001(b)(1) of the Family Code. She argues there was no evidence she knew J.R.P.'s paternal grandmother habitually used heroin when she left J.R.P. with her, and there was no evidence she left J.R.P. with her paternal grandmother on an ongoing basis. Thus, according to C.P., there was no evidence she knowingly engaged in an endangering course of conduct.
To terminate parental rights under section 161.001 of the Texas Family Code, the Department must prove by clear and convincing evidence: (1) one of the grounds in subsection 161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam. Code §§ 161.001, 161.206(a); see In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We evaluate the legal and factual sufficiency of the evidence to support the trial court's findings under the heightened standard of review established by the Supreme Court of Texas in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). We review for legal sufficiency by examining the entire record in the light most favorable to the findings, assuming any disputed facts were resolved in favor of the findings if a reasonable factfinder could do so and disregarding any evidence the factfinder could have reasonably disbelieved. See id. at 266. We review for factual sufficiency by evaluating the disputed evidence to determine if it is so significant a factfinder could not have reasonably formed a firm belief of or conviction on the challenged finding. Id. While conducting this review, we remain mindful "[t]he trial court is the sole judge of the weight and credibility of the evidence." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.-San Antonio Jan. 30, 2017, no pet.) (mem. op.).
When, as in this case, a parent challenges the sufficiency of the evidence supporting the trial court's finding under subsection E, we must detail our analysis for that ground because it implicates significant due process concerns. See In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (holding termination under subsection E finding can affect parental rights to future children). Subsection E permits termination if clear and convincing evidence establishes 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 Tex. Fam. Code § 161.001(b)(1)(E). "Conduct" includes both a parent's actions and failures to act. In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.-San Antonio 2000, pet. denied). "Endanger" means to expose a child to loss or injury or jeopardize a child's emotional or physical well-being. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam). While subsection E endangerment must be a direct result of a parent's course of conduct, the conduct described does not have to be specifically directed at the child, nor does it have to cause an actual injury to the child or even constitute a concrete threat of injury to the child. In re M.J.M.L., 31 S.W.3d 347, 350 (Tex. App.-San Antonio 2000, pet. review denied). The statute's requirements are satisfied by showing the parent's conduct exposed the child to loss or injury or jeopardized his physical or emotional well-being. See id. at 351.
Here, the Department produced evidence showing C.P. exposed her children to drug use, a factor which can establish endangering course of conduct. See In re B.G.R., No. 04-19-00614-CV, 2020 WL 1015820, *6 (Tex. App.-San Antonio Mar. 3, 2020, no pet.) (mem. op.). When J.R.P. was born, he tested positive for marijuana. According to Department caseworker Veneva, C.P. admitted she used marijuana during her pregnancy. Veneva testified due to the Department's concerns regarding C.P.'s drug usage, the service plan required C.P. to engage in drug treatment. Veneva testified C.P. began engaging in treatment, but then stopped participating, and in July 2021, C.P. relapsed. Veneva also testified during the Department's investigation, J.R.P. tested positive for heroin. Veneva testified when she asked C.P. about the incident, C.P. could not provide her with an explanation. Department caseworker Victoria Caylor testified when she asked C.P. about the incident, C.P. told her she had left J.R.P with her paternal great-grandmother, who allowed J.R.P. to be held by her paternal grandmother, a heroin user. According to C.P., she did not know J.R.P.'s paternal grandmother used heroin, did not know how the heroin made its way into J.R.P.'s system, and did not notice anything wrong with J.R.P. when she picked her up.
The Department also produced evidence C.P. had continued to see J.J.M.'s father despite their violent relationship. "Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment." In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.- San Antonio 2017, no pet.) (quoting In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.)) (internal quotation marks omitted). Here, Veneva testified when she was involved in the case, C.P. was living with J.J.M.'s paternal grandmother, and J.J.M.'s father strangled C.P. Veneva testified she saw bruising on C.P. when she visited her, and C.P. admitted he strangled her and bruised her back. Veneva also testified C.P. admitted J.J.M.'s father continued to use synthetic marijuana while she lived with him at his mother's house. Veneva added she was concerned about the conditions in the house, specifying it was filled with clutter and trash, and each time she visited, she found different inappropriate people-like convicted felons with drug charges-living in the house. Veneva testified she was concerned about the children's safety if they were returned to C.P. because C.P. did not express any concern about the living arrangement. See In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.-Fort Worth 2009, no pet.) ("Conduct that subjects a child to a life of uncertainty and instability also endangers the child's physical and emotional well-being.").
The trial court also heard testimony describing the children's current state when they were removed from the home. Relevant to this case, "[a] finding of endangerment under subsection E . . . may be based on conduct both before and after removal." In re A.L.H., 515 S.W.3d 60, 93 (Tex. App.-Houston [14th Dist.] 2017, pet. denied). Here, when the children came into the Department's care, the CASA volunteer testified J.R.P. had tremors and would shake constantly due to marijuana withdrawal. The volunteer also testified J.R.P. seemed unhealthy and very lethargic. As to J.B.P., the volunteer testified she had a black eye, which was in the healing process, and the Department caseworkers testified C.P. gave them inconsistent explanations about the black eye. C.P. first explained J.B.P. punched herself, and later explained J.B.P. hit a bench under a table. Each caseworker expressed concern because C.P. laughed about the incident. Finally, J.J.M. came into the Department's care with a broken arm, for which C.P. never provided an explanation. There was also testimony C.P. removed J.J.M.'s cast herself and did not take J.J.M. to a follow-up appointment. In addition to this testimony, the foster mother testified the children "came to us very scared, broken, bruised, just screaming."
Giving due deference to the trial court's findings, we hold a reasonable trier of fact could have formed a firm belief or conviction that C.P. knowingly placed the children in conditions and engaged in conduct endangering their physical or emotional well-being. See Tex. Fam. Code § 161.001(1)(E). The Department produced evidence C.P. exposed the children to conditions involving drug use, domestic violence, and strangers with a criminal history. And despite C.P.'s contention she did not know J.R.P.'s paternal grandmother was a heroin user, the Department satisfied subsection E's requirements by producing evidence of multiple incidents where the children were exposed to drug use and an environment that caused them actual injuries. See M.J.M.L., 31 S.W.3d at 351. Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's finding under subsection E.
Conclusion
Based on the foregoing, we affirm the trial court's order of termination.