in Re: Carlos A. Armenta ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00002-CV

                                                ______________________________

                                                  IN RE:  CARLOS A. ARMENTA

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

            While incarcerated in the Telford Unit of the Texas Department of Criminal Justice (TDCJ), Carlos A. Armenta was allegedly assaulted by another prisoner.  Armenta brought suit against the TDCJ and a guard, Walter Ayers, claiming that the TDCJ and Ayers “misused property” and negligently failed to follow procedure, improperly supplied electricity to an outlet in the alleged assailant’s cell, and ignored Armenta’s warnings that the assailant would attack him. The TDCJ moved to dismiss Armenta’s claims against it, arguing that it could not be sued under 42 U.S.C. § 1983.  In his response, Armenta argued that “he did not sued [sic] TDCJ but under Tex. Civ. Prac. Rem. Code Ann. §101.021(2).”  The trial court granted the TDCJ’s motion and dismissed it from the suit, leaving Ayers as the sole defendant.

            In Armenta v. TDCJ-ID, No. 06-10-00039-CV, 2010 WL 1986638 (Tex. App.––Texarkana May 19, 2010, pet. denied) (mem. op.), Armenta appealed the dismissal.  However, this Court dismissed his appeal for lack of jurisdiction because the trial court’s dismissal order did not dispose of all named defendants, and therefore, it was not a final, appealable judgment.  Id.

            Here, Armenta seeks mandamus relief, arguing, as he did in his direct appeal, that the trial court:  (1) “erred and abused its discretion in dismissing defendant TDCJ from the suit”; and (2) failed to analyze and correctly apply the law regarding “whether Armenta has standing to suit [sic] TDCJ for negligence and misuse of property pursuant to Tex. Civ. Prac. Rem. Code Ann. § 101.021.(2).”

            We deny the petition for writ of mandamus because Armenta has an available remedy by appeal.

            Mandamus is an extreme remedy, and to be entitled to mandamus relief, a petitioner must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal.  In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (orig. proceeding).  Armenta may appeal the dismissal of the TDCJ when the trial court enters a final judgment disposing of all claims and all parties.  See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). Armenta does not cite to any authority demonstrating that the available remedy by appeal is inadequate in this case, and we are aware of none.  Accordingly, we deny the petition for writ of mandamus.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          January 18, 2011

Date Decided:             January 19, 2011

e friends. J.M. "manifested what we call sadistic features" on one of the evaluation tools. He explained that people with such features often enjoy watching movies in which others suffer and may enjoy such in real life. Later, he would explain that the Department took this observation out of context when it used that finding as a basis to remove S.M.M. J.M. described himself to Winsted as apathetic. Further, Winsted observed that from J.M.'s perspective, he has a lot of problems with his children or raising children with lots of problems. As a result, he is likely to see his children in a "negative light."

Winsted testified that it was difficult to conclude whether J.M. would be able to meet A.L.M.'s emotional needs. He could not determine whether J.M. was defensive at the evaluation because "the stakes were very high" or whether that was his general nature. If it is his general nature to be defensive, then it would be difficult for J.M. to meet A.L.M.'s emotional needs. J.M. "could probably provide for [the] physical [needs]" of the children. Winsted testified he "would question the emotional and mental [needs], though, explaining that those needs would be "a challenge for him as well."

3. Dr. Winsted's Conclusions Regarding Parenting

On cross-examination, Winsted testified that these psychological evaluations provide a snapshot of the patient in terms of "emotional" observations, pointing out that cognitive and personality observations are more fixed. He testified that with six to nine months of service, a patient's intellect would not vary. There can "certainly be some improvements" in personality functioning, however. It would take most patients, including K.M. and J.M., a couple of years for significant change to occur. Winsted testified that it is in the area of emotional function where the most improvement may be seen in the shortest period of time; depression and anxiety can improve significantly in a matter of months with cognitive behavior therapy.

Importantly, following his evaluations, Winsted concluded that K.M. and J.M. could parent S.M.M. as long as S.M.M. did not have any "significant medical problems."

[P]eople that have that [cognitive] function and that level do tend to have some struggles or difficulties with raising children and generally do need some kind of extra help.

. . . .

The other thing I'd like to say though is the issues, especially with [K.M.], that she's struggling with [are] probably going to require in addition to [help from church members], which is very important to have a good support community, [are] going to require some professional therapeutic intervention as well.

4. Evaluating this Evidence

Winsted's testimony is sufficient to show that K.M. and J.M. do suffer from a mental deficiency. However, it fails to establish by clear and convincing evidence that the parents are unable to meet the needs of the children. In fact, with respect to S.M.M., the doctor's testimony indicates that in his opinion, K.M. and J.M. can adequately parent him. With respect to A.L.M., the doctor's testimony suggests that certain aspects of parenting will be a challenge for the parents. Evidence that parenting may be difficult, though, falls short of forming a firm belief or conviction that K.M. and J.M. are unable to meet the needs of the children.

E. Evidence of Exposure of Children to Alleged Sex Offender and Convicted Sex Offender

Testimony from K.M. and J.M. fails to meet the elevated standard of proof to support termination. Likewise, testimony from those associated with the Department and S.M.M.'s foster mother fails to establish by clear and convincing evidence that K.M. and J.M. are unable to meet the needs of the children. Finally, as we have just seen, Winsted explained that he believed that K.M. and J.M. are capable of parenting S.M.M., but may face some challenges meeting the needs of A.L.M. Again, recognizing that parenting in general is fraught with challenges, we conclude that testimony that certain aspects of parenting may be difficult for a parent is legally insufficient to support termination. We are left, then, with the task of evaluating the evidence that K.M. and J.M. exposed the children to the accused abuser of B.L.S. and to J.M.'s father, a convicted sex offender.

We note that the State relies a great deal on the parents' repeated reliance on family members, one who had been accused of sexually abusing the boy's older sister, B.L.S., and another being J.M.'s father, a registered sex offender. ⁽¹²⁾ We begin by noting that there is not the slightest evidence of abuse of any of the three children at the hands of J.M.'s father, de la Rosa. There is no evidence or allegation of Robertson's abuse of A.L.M., and there is no evidence that S.M.M. has ever had any contact whatsoever with Robertson. S.M.M. only lived with his mother and father for three months, and during that time, they were living with the maternal grandparents and later in their own apartment.

With that, we are left to evaluate evidence of the parents' exposure, several times over a number of years, of the oldest child (again, whose relationship is not at issue) to her accused abuser. We neither minimize the impact such exposure may have had on the oldest child, nor do we suggest that such exposure would not have an impact on a younger sibling. Again, we point out that this is not a case in which we focus on endangerment under Section 161.001 in which exposure of B.L.S. to abuse may serve as evidence that the parents endangered the younger children. See In re A.S., 261 S.W.3d 76, 88 (Tex. App.--Houston [14th Dist.] 2008, pet. denied); In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.--Fort Worth 2004, pet. denied). In the endangerment cases, the decision to terminate the parent-child relationship does not require that the endangering conduct be directed toward the child, but it does require that it be committed in the presence of the child. A.S., 261 S.W.3d at 88.

Here, we must look at the parents' overall failure to provide for the needs of the children at issue.

In affirming termination under Section 161.003, the Salas court mentioned that along with a wealth of other supporting evidence, the mother was unable to prevent the sexual and physical abuse of her children. See Salas, 71 S.W.3d at 790. So, while we recognize that prevention of abuse may be a consideration here, with respect to A.L.M. and S.M.M., we have no evidence that the parents failed to prevent abuse. S.M.M. was born January 11, 2008, and the Department removed him from the home less than three months later. So the record shows S.M.M. was not born when the family lived with or near any abuser or offender. Nothing in the record suggests that A.L.M. or S.M.M. experienced sexual or physical abuse. There was no evidence in the instant case, or even any allegation, that A.L.M. or S.M.M. experienced any abuse.

Section 161.003 of the Texas Family Code requires more than a finding of mental deficiency. That is, we are called on to decide by clear and convincing evidence that because the parents were mentally deficient, they were unable to prevent exposing their oldest child to the family member she accused of sexually abusing her and that such evidence supports a finding that the parents are now rendered unable to provide for the physical, emotional, and mental needs of the children. This is a difficult matter to prove since it first requires proof that the exposure to sexual abuse of the older child was not mere negligence, inattention, or poor parenting, but that it happened because the parents were mentally deficient. Upon making that linkage, there must also be evidence to support a determination that the parents' mental deficiencies exclude them from now and in the future providing for their children. It is theoretically possible that a parent's mental deficiency might indirectly cause abuse of a child--generally expert testimony is presented to make that connection. M.F.G. v. Dep't of Children & Families, 723 So. 2d 290, 292 (Fla. Dist. Ct. App. 3d Dist. 1998) (based on expert testimony and D.H.G.'s own incoherent responses, trial court found by clear and convincing evidence D.H.G. suffered from severe and chronic mental disorder and that she was unable to provide reasonable care for her children); In re N.F., 533 N.E.2d 952 (Ill. App. Ct. 2d Dist. 1989) (court relied on psychiatrist's testimony that mother could not independently parent her child). A primary reason for allowing an expert to give opinion testimony is to make a causal connection between the act or event and the resulting damage or injury. Causal connection must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture. Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966). Here, Winsted's testimony, previously summarized, does not opine that the parents' mental deficiencies render the parents unable to provide for the physical, emotional, and mental needs of the children. In fact, in February 2008, after his psychological evaluation was completed, Winsted expressed the opinion at a staff meeting that K.M. and J.M. could parent S.M.M. ⁽¹³⁾ While we are not holding that expert testimony is always essential in a termination case of this sort, the other evidence in this case consists primarily of conclusory statements by lay witnesses. ⁽¹⁴⁾

Here, there is some evidence that the parents were unsure whether the abuse ever happened, especially initially when the Department's investigation suggested that it did not. Further, even after they began to believe the allegations, financial situations "[l]eft them no choice but to rely on family for shelter." Certainly, we cannot say that financial difficulties are the equivalent of mental deficiency or that the record shows the parents' mental deficiencies were the direct cause of their financial difficulties.

There is no evidence that the parents continued to expose the oldest child to an environment in which her accused abuser was living because of their mental deficiencies. That is, nothing in the record would prove their mental deficiencies were the reason for their decision to bring B.L.S. into the household where Robertson was living. K.M. and J.M. admit that it was a mistake. It was an instance in which the parents did not meet the needs of their children, especially as to B.L.S. But there is no evidence that due to their mental deficiencies, they were unable to meet the needs of the children, only that with respect to this situation they failed to do so. Regarding A.L.M. and S.M.M., the evidence does not suggest that contact with Robertson, the alleged abuser, in any way compromised their need for safety and protection. No allegations were made that either son was abused. Further, there is no evidence the family had contact with Robertson after S.M.M. was born.

We find there is not sufficient evidence to allow a trier of fact to reasonably form a firm belief or conviction about the truth of the allegations concerning the termination of parental rights.

IV. CONSERVATORSHIP

The trial court also appointed the Department as the managing conservator of A.L.M. and S.M.M. The remaining question is whether that order continues to control independent of the termination decision or if the reversal of the termination order necessarily requires reversal of the conservatorship decree.

The Texas Supreme Court has spoken on this matter very recently. The first case addressed was In re J.A.J., 243 S.W.3d 611 (Tex. 2007). In that case, an order terminating the parents' rights was reversed, and even though the parent did not raise an issue regarding the conservatorship appointment, the Texas court of appeals reversed the order appointing the Department as managing conservator. The Texas Supreme Court held that the Department had pled and the trial court had found a ground for the conservatorship order that was independent from the termination order and reversed the court of appeals. ⁽¹⁵⁾

The next year, the Texas Supreme Court addressed another termination case, but in this instance, there was no independent ground for the appointment of a managing conservator. The appointment was made pursuant to Section 161.207 of the Texas Family Code, which requires the appointment of a managing conservator when a termination of parental rights is granted. Since there was no other ground for the conservatorship order, it was subsumed in the appeal of the parental rights termination order and reversal of the termination necessarily required reversal of the conservatorship award. In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008).

In this case, the Department pled that it be named as the managing conservator "pursuant to

Sections 153.005 and 263.404, Texas Family Code . . . ." Section 153.005 defines the parties authorized to be appointed as managing conservators ("a parent, a competent adult, an authorized agency, or a licensed child-placing agency"). Section 263.404 has been held to apply only when the trial court does not order termination of the parent-child relationship, and has no application when the parental rights have been terminated. J.A.J., 243 S.W.3d at 615. Furthermore, the trial court, in appointing the Department as managing conservator, did not find any grounds for the conservatorship independent of the termination. Since the court terminated the parental rights, Section 263.404 did not apply and the court was required to appoint the managing conservator in accordance with Section 161.007, due to the termination. Here, like D.N.C., the conservatorship issue was subsumed with the termination issue and there was no independent ground for conservatorship. ⁽¹⁶⁾

Consequently, the appointment of the Department as managing conservator is reversed.

The effect of our judgment will reverse the order of termination and therefore invokes another section of the Texas Family Code. When an order of termination is denied, the trial court is to "render any order in the best interest of the child." Tex. Fam. Code Ann. § 161.205 (Vernon 2008). An appellate court reviewing a matter months later is not equipped to know if circumstances of the parents or the children have changed since the trial court entered its order. Such a determination requires a fact-finder. Therefore, we remand the case to the trial court for the limited purpose of rendering an order, consistent with Section 161.205 of the Texas Family Code. A.S., 261 S.W.3d at 93.

V. CONCLUSION

The record reveals that K.M. and J.M. may have made certain parental missteps, especially with respect to B.L.S. Assuming without deciding that those missteps could serve as a failure to meet the needs of the two younger children, we nonetheless conclude that none of those missteps is directly linked to the parents' mental deficiencies. That is, the evidence is not clear and convincing that as a result of their mental deficiencies, K.M. and J.M. are unable to meet the needs of the two younger children. We are mindful that the evidence must be clear and convincing to terminate parental rights, rights characterized as "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); see Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Having concluded that the evidence is legally insufficient to support termination based on Section 161.003, ⁽¹⁷⁾ we reverse the trial court's judgment and render judgment denying the Department's petition seeking termination of K.M.'s and J.M.'s parental rights to A.L.M. and S.M.M.

Further, for the reasons expressed, the appointment of the Department as managing conservator is reversed, and the case is remanded to the trial court to proceed pursuant to Section 161.205 of the Texas Family Code.

Jack Carter

Justice

Date Submitted: August 5, 2009

Date Decided: November 20, 2009

1. K.M. signed an affidavit of relinquishment of her parental rights to B.L.S. to facilitate the adoption of B.L.S. by one of K.M.'s sisters, not the one living with the accused abuser. The parents concede that the termination of parental rights to B.L.S. is not at issue. She will be discussed only as she relates to the initial removal of and termination of rights to the other children.

2. Section 161.003 of the Texas Family Code has some distinct elements, including timing elements, not found in the more commonly-used grounds of Section 161.001 of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009).

3. The Department sought termination as to the children based on Sections 161.001(1)(D), (E), (N), and (O). Those grounds, generally, involve dangerous conditions, dangerous conduct, constructive abandonments, and failure to comply with a court order, respectively.

4. Before a final order was signed, the attorneys and trial court realized that trial in regard to S.M.M. started before the Department had been his managing conservator for six months, although it did begin 181 (trial court says 182) days after the Department had filed its original petition as to S.M.M. (on April 1, 2008). Tex. Fam. Code Ann. § 161.003(a)(3), (c). In an attempt to cure the error, on October 21, 2008, the trial court granted a new trial as to S.M.M., took judicial notice of the testimony from the September 29-30 trial, then entered an order only as to S.M.M. and another order as to the two older children. All parties appeared at that hearing and re-urged the evidence presented three weeks earlier at the hearing. On the record, the trial judge stated she had found earlier that J.M. had not paid child support as ordered. The trial court's ruling does not confirm that statement.

5. Pursuant to the parents' motion to reform the order of termination and to combine the separate orders as to S.M.M. and as to B.L.S. and A.L.M. for purposes of appeal, the trial court reformed those two final orders into one final order November 20, 2008.

The trial court had earlier signed an order of consolidation November 7, 2008, to make clear the two causes were combined. No written order consolidating the causes before trial appears in the clerk's record, but the trial court makes reference in its written order to its June 11 oral declaration that the two causes were to be consolidated. The docket sheet for the S.M.M. cause states it was consolidated with the B.L.S. and A.L.M. cause, but no consolidation order was signed before trial.

6. The Fort Worth court suggested that the evidence in In re J.P., No. 02-07-00026-CV, 2008 Tex. App. LEXIS 773 (Tex. App.--Fort Worth Feb. 4, 2008, no pet.) (mem. op.), would have been insufficient. However, as the court noted, the Department did not allege Section 161.003 as grounds for termination in that case.

7. Published portion found at In re C.M., 996 S.W.2d 269 (Tex. App.--Houston [1st Dist.] 1999, no pet.).

8. At the beginning of the Department's investigation, a worker visited the family home to find no food and inadequate sleeping arrangements. The children were hungry, thirsty, and unkempt, and one child had very bad tooth decay. Id. at 785.

9. Mason discontinued counseling services because she became concerned about S.M.M. still being in the home at that time and requested that the family be directed to another counselor. Mason wrote a letter about the safety of S.M.M. and her concerns about that. Her position was yet another reason the Department sought removal of S.M.M.

10. Winsted first detailed his observations following his evaluation of A.L.M., explaining that A.L.M. may have emotional or behavioral problems as suggested by some gender identity confusion and sexual acting out. He later conceded that A.L.M.'s elevated behavioral and emotional issues could have been caused or exacerbated by removal from his parents.

11. Winsted interjected that it was understandable, under the circumstances, for K.M. to have trust issues.

12. The Department seems to emphasize the parents' decision to live with Robertson and with de la Rosa, characterizing them both as sexual predators. It is important to note that J.M. did not grow up around his father and was told that he went to jail for DWI when, in fact, it appears that he was incarcerated after being convicted of sexual abuse of a daughter. J.M. found this out during the Department's investigation, and, after he learned of the sex offense conviction, the family did not live with de la Rosa again. So, it appears the family did not know of de la Rosa's sexual abuse history. Moreover, there is no evidence that de la Rosa abused or attempted any abuse as to any of the children at issue here. S.M.M. never lived with de la Rosa.

13. Winsted testified that his opinion was contingent on the parents' continued participation in services. As described in a later footnote, the parents participated in the services offered.

14. The other primary testimony was offered by McMillan, a caseworker whose testimony has been previously summarized. McMillan testified about the service plan established with K.M. and J.M. Generally, her testimony was that K.M. and J.M. complied with the plan. The testimony showed that the parents attended required parenting classes and had a safe and appropriate home. However, McMillan volunteered that a suitable house was not relevant because "if they can't protect their children, then there is no need to look at the house . . . in my opinion." Other parts of the plan completed were furnishing a health and social history of the children, and attending counseling. In May 2008, the Department transferred the counseling to Winsted, and K.M. and J.M. attended sessions in June and August (this hearing was September 29, 2008). McMillan was critical because they had not attended more counseling sessions. Counseling was changed to Winsted because the previous counselor "did not want the liability" of leaving the infant S.M.M. with his parents. This concern was one of the reasons S.M.M. was then removed. Drug usage was never a problem, as verified by drug testing. After S.M.M. was removed in March 2008, the goal of the Department was to see if the parents could demonstrate the ability to parent so the "children could be returned to them." But McMillan said instead they showed a "complete lack of parenting skills." Examples of this were the pineapple juice incident and having to redirect K.M. to hold a baby bottle correctly. Finally, she concluded they put themselves ahead of the children because they had cigarettes, but did not buy the children kiddy meals and because of the dispute about watching Barney on television. Needless to say, none of this evidence approaches the high standard of proof required to terminate the parental rights of the parents.

15. The Texas Supreme Court held that the Department requested conservatorship based on Section 153.131(a) of the Texas Family Code. The trial court specifically found that the appointment of the parents would significantly impair the child's physical health or emotional development as required by this section.

16. In re A.S., 261 S.W.3d 76, 92 (Tex. App.--Houston [14th Dist.] 2008, pet. ref'd). In a case where the Department used precisely the same language as found here for the grounds for conservatorship ("pursuant to Sections 153.005 and 263.404") and also alleged Section 153.131 grounds (appointment of parent would significantly impair child's physical health or emotional development), but the trial court failed to make such findings, the Houston Fourteenth Court found the conservatorship order was based solely on the termination order and with its demise, the conservatorship order necessarily was reversed. Here, the Department did not allege Section 153.131 as grounds for conservatorship, and the trial court found none.

17. The Department has requested that if the evidence is found to be legally insufficient, this Court modify the judgment to find termination on either Section 161.001(1)(D) or (E), relating to endangering conditions and endangering conduct, respectively. We may not grant such relief. See In re J.R.S., 232 S.W.3d 278, 285 (Tex. App.--Fort Worth 2007, no pet.); Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 194 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).