Opinion
No. 14-08-01013-CV
Memorandum Opinion filed October 1, 2009.
On Appeal from the 310th District Court Harris County, Texas, Trial Court Cause No. 2008-32563.
Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
MEMORANDUM OPINION
Erica Haywood appeals a final decree terminating her parental rights to her child, R.S. In three issues, appellant challenges the sufficiency of the evidence to support the finding that her parental rights should be terminated and claims her trial attorney provided ineffective assistance of counsel. We affirm the trial court's judgment.
When R.S. was born, appellant refused to let the hospital medical staff attend to the baby. Appellant exhibited bizarre behavior, and the staff was concerned about her mental state. The hospital staff believed appellant required psychiatric therapy and could not provide adequate supervision of the child. Appellant had a black eye, and staff was concerned about her home situation. A caseworker from the Texas Department of Family Protective Services investigated the hospital's concerns that the child was in danger. The Department filed suit and was granted temporary protective orders for custody of the child. After a non-jury trial, the court terminated appellant's parental rights and this appeal followed.
Parental rights can be terminated only upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and (2) termination is in the best interest of the child. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2008). Clear and convincing evidence is "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." Tex. Fam. Code Ann. § 101.007 (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Although the two elements must be proven independently, the same evidence may be probative of both issues. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
The trial court found by clear and convincing evidence that appellant had committed four of the grounds for termination listed in section 161.001(1) of the Texas Family Code. Specifically, the court found appellant violated subsections D, E, M and O of section 161.001(1). The trial court also found that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2) (Vernon 2008).
Family Code Section 161.001 provides in relevant part that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that termination is in the best interest of the child and 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; . . .
(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state; . . .
(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 Family and Protective 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 2008).
As an initial matter, the Department asserts that the Family Code precludes our review of appellant's issues because she failed to file a timely statement of appellate points. See Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008). The Texas Family Code requires that a statement of points on which a party intends to appeal be presented to the trial court within fifteen days after the signing of a final order terminating parental rights. Tex. Fam. Code Ann. § 263.405(b) (Vernon 2008). The Code further provides that an appellate court is to consider only those issues presented to the trial court in a timely filed statement of points. Id. § 263.405(i). Appellant filed her First Notice of Appeal six days after judgment on October 15, 2008. The second page of the notice of appeal contains her statement of points, asserting insufficiency of the evidence and ineffective assistance of counsel, among other issues. The second page of this notice of appeal was not included in the original record, but a copy was filed with the clerk of this court. Accordingly, we ordered supplementation of our record to include the missing page containing the statement of points. Therefore, we may properly consider appellant's issues.
In her first two issues, appellant challenges legal and factual sufficiency of the evidence to support the trial court's findings that her parental rights should be terminated and that termination is in R.S.'s best interest. In conducting a legal sufficiency review in a parental termination case, we are to 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. In re J.P.B., 180 S.W.3d 570, 573-74 (Tex. 2005). In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to the trier of fact's factual determination. In re C.H., 89 S.W.3d at 27. We are to determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. Id. at 25.
In her argument that the evidence is insufficient to support one of the statutory predicate grounds for termination, appellant discusses only the grounds alleged in sections 161.001(1)(D), (E), and (O). There is no mention of section 161.001(1)(M) in appellant's brief. Section 161.001(1)(M) of the Family Code provides as a ground for termination of parental rights a finding that the parent-child relationship was terminated with respect to another child based on a finding of endangerment as set forth in sections 161.001(D) or (E). Tex. Fam. Code Ann. 161.001(M) (Vernon 2008). At trial, a certified copy of the 2006 decree issued by the same trial court terminating appellant's rights to another child based on the finding that she endangered the child pursuant to Section 161.001(E) was admitted into evidence. See In re R.A.P., No. 14-06-00109-CV, 2007 WL 174376 (Tex. App.-Houston [14th Dist.] Jan. 25, 2007, pet. denied) (mem. op.); see also Tex. R. Evid. 201 (permitting courts to take judicial notice of court decisions). We conclude that this evidence is legally and factually sufficient to support the court's finding under section 161.001(1)(M).
In addition, the trial court's findings must be challenged on appeal, or the findings are binding on the appellate court. IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997). Therefore, the unchallenged finding that termination is supported by section 161.001(1)(M) is binding, and the judgment of termination may be supported without considering the other statutory predicate grounds. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that only one finding under section 161.001(1) is necessary to support a termination judgment when there is also a finding that termination is in the child's best interest). The remainder of our review is limited to the sufficiency of the evidence supporting the trial court's finding that termination is in the child's best interest.
There are several factors that should be taken into account when determining whether termination of parental rights is in the best interest of the child. In re R.R, 209 S.W.3d 112, 116 (Tex. 2006). These include factors set forth in section 263.307 of the Family Code that are relevant in the particular case. Tex. Fam. Code § 263.307 (Vernon 2008). In addition, the Texas Supreme Court has promulgated best-interest factors including (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 parental abilities of the parent; (5) the programs available to assist the parent; (6) the plans for the child by the parent; (7) the stability of the home; (8) the parent's acts or omissions that indicate 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, 372 (Tex. 1976). These Holley factors are not exhaustive; some of those listed may not apply, while other factors that are not listed may be appropriate. In re C.H., 89 S.W.3d at 27.
The following statutory factors relevant to this case include:
(1) the child's age and physical and mental vulnerabilities; . . .
(3) the magnitude, frequency, and circumstances of the harm to the child; . . .
(7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; . . .
(10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
(11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the child's family demonstrates adequate parenting skills, including providing the child and other children under the family's care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
(C) guidance and supervision consistent with the child's safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child's needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.
Tex. Fam. Code Ann. § 263.307(b) (Vernon 2008).
At trial, the Department's caseworker on this case, Latasha Hurd, testified about the Department's initial involvement in the case and explained that appellant had previously had her rights terminated as to one child and her rights severely restricted as to another child. Hurd testified that appellant also has an open case in Georgia involving a third child. She testified that appellant was not exercising her supervised visitation of the child to which she retained her parental rights. Appellant rejected the assistance of all services offered by the Department to improve her abilities as a parent and caregiver. She had not demonstrated that she could provide a safe and stable home for R.S. She had not provided any documentation of housing or employment and was not willing to participate in a psychological examination. Hurd also testified that appellant was in a relationship involving domestic violence, and that there would be an immediate risk of harm to R.S. if she were returned to her mother. Appellant had a black eye when she was in the hospital for R.S.'s birth. Several criminal convictions against appellant and the baby's alleged father were also admitted into evidence. The convictions against appellant during 2004 and 2005 included criminal mischief, criminal trespass, failure to identify to a police officer, and resisting arrest. These convictions resulted in jail time of fifteen or twenty days for each offense. Appellant was also charged with a felony count of interference with child custody in late 2005 and was confined in jail for 180 days.
Erica Domain, a Department supervisor, also testified. She testified about the child protective case in Georgia that was opened because of appellant's erratic behavior and domestic violence issues. Domain testified appellant was not cooperative with either the Georgia agency or her department. She also testified appellant rarely visited R.S. She believes appellant is ill and needs help.
Because R.S. is an infant, our review focuses primarily on those best-interest factors related to appellant's ability to care for a young child totally dependent on her caregivers. The Department was granted custody of R.S. shortly after her birth. R.S. was only a few months old at the time of trial. A Department supervisor testified appellant rarely visited the baby. When a child is very young, a court may consider whether the child has any conscious knowledge of the parent in determining the child's best interest. See In re B.M.R., 84 S.W.3d 814, 820 (Tex. App.-Houston [1st Dist.] 2002, no pet.).
There is no evidence that appellant has the ability to care for her daughter or to even provide a home for her. There is no evidence of employment so that appellant could provide for the needs of the child. She refused to cooperate with the Department or take advantage of the services offered. With no income or home, a parent is unable to provide for a child's emotional and physical needs. See In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.-Fort Worth 2003, no pet.).
There is no evidence that appellant had any parenting skills. It is appropriate to consider the parent's past parenting ability in considering best interest of the child. See In re. C.H., 89 S.W.3d at 27. Appellant endangered another child and her rights to that child were terminated. Her rights to another child were severely restricted. At the time of trial, Georgia officials were investigating the conditions surrounding a third child, after reports of appellant's violent domestic relationship.
There is sufficient evidence that appellant cannot provide a safe physical home environment or protection from repeated exposure to violence, even though the violence may not have been directed at the child. Appellant was engaged in a relationship involving domestic violence. She behaved strangely at R.S.'s birth and refused the let the hospital staff care for her daughter. Appellant had an extensive criminal background with frequent stints in jail. See In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.-Houston [14th Dist] 2005, no pet.) (recognizing that a pattern of criminal behavior makes it likely the parent will face incarceration in the future). Imprisonment of a parent, of and by itself, does not constitute endangerment of a child; nevertheless, where such imprisonment is a result of a voluntary, deliberate, and conscious course of conduct, it qualifies as conduct that endangers the emotional well-being of a child. See Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987).
We hold the evidence is legally and factually sufficient to support the trial court's finding that termination of the parent-child relationship is in the best interest of R.S. We overrule appellant's first two issues.
In her third issue, appellant contends her rights should not have been terminated because her trial counsel was ineffective. By statute, indigent parents contesting the termination of their parental rights are entitled to appointed counsel. Tex. Fam. Code Ann. § 107.103(a)(1) (Vernon 2008). This statutory right to counsel in termination cases embodies the right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Indigent parents with statutorily appointed counsel are entitled to effective assistance, and if counsel is not effective a parent may raise ineffective assistance of counsel in contesting a termination order. See In re J.O.A., 283 S.W.3d at 341; M.S., 115 S.W.3d at 544.
The two-pronged Strickland analysis applies to claims of ineffective assistance of counsel in termination cases In re M.S., 115 S.W.3d. at 545 (applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)). To establish ineffective assistance of counsel under Strickland, the complaining parent must show by a preponderance of the evidence her counsel's performance was deficient and the deficient performance deprived the parent of a fair trial. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, including the possibility that counsel's actions are strategic. In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). The parent's burden is to show that counsel's performance fell below an objective standard of reasonableness. In re M.S., 115 S.W.3d at 549. Allegations of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. In re K.K., 180 S.W.3d 681, 685 (Tex. App.-Waco 2005, no pet.).
At the pre-trial conference, appellant's appointed attorney advised the court that she had not been able to contact appellant, and a letter mailed to her last known address had been returned. Counsel filed a motion for continuance and a motion to withdraw, both of which were denied on the day of trial. After the motions were denied, counsel informed the court that she had spoken to her client the week before and appellant advised counsel that she would not appear at trial and she did not want counsel to represent her. Appellant filed several pro se motions requesting, among other matters, that her case be transferred to Georgia. At trial, counsel did not cross-examine the Department's witnesses. Counsel also did not object to hearsay testimony concerning the investigation of appellant in Georgia. Appellant complains this evidence harmed her because it demonstrated another CPS case had been filed against her. We reject this contention because there was sufficient other evidence of cases concerning appellant's other children before the court. Certified copies of the judgments in two other cases concerning appellant's children, one terminating her rights and another severely restricting them, were admitted at trial. See Tex. R. Evid. 803(8) (excepting public records from hearsay). Thus, the effect of the testimony about the Georgia investigation was minimal.
Counsel did object to other hearsay and the admission of uncertified copies of documents.
The Department asserts that appellant is estopped from claiming ineffective assistance of counsel after refusing to cooperate with her attorney in preparing for trial. Appellant directed her attorney not to represent her at trial. She filed pro se pleadings, and she failed to appear for trial after evidence showed she was aware of the trial setting. For a party to be estopped from asserting a position in an appellate court based on actions it took in the trial court, the party must have unequivocally taken a position in the trial court that is clearly adverse to its position on appeal. In re Dep't of Fam. Prot. Servs., 273 S.W.3d 637, 646 (Tex. 2009). Appellant's actions thwarted her counsel's efforts at trial. Appellant also could be said to have invited any error by her counsel. The invited error doctrine applies to situations where a party requests a specific ruling or action, then complains of that action on appeal. Id. The intentional withholding of information by a client cannot result in an ineffective assistance of counsel claim. See Rodriguez v. State, 74 S.W.3d 563, 568-69 (Tex. App.-Amarillo 2002, pet. ref'd). Appellant refused to cooperate with counsel and did not want her representation; thus, she should not benefit from a reversal based on counsel's actions at trial.
The filing of pro se matters does not establish the deprivation of counsel because the practice is common when parties are represented by counsel. Burnett v. State, 959 S.W.2d 652, 659 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd).
We conclude appellant's appointed counsel did not provide ineffective assistance of counsel under the facts presented here. Appellant's third issue is overruled.
Accordingly, the judgment of the trial court is affirmed.