in the Interest of C. T. and K. T., Minor Children ( 2012 )

NUMBER 13-12-00006-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF C.T. AND K.T., MINOR CHILDREN
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
This is an appeal of the termination of parental rights to C.T. and K.T., two minor
children. Appellants are: Alice, the biological mother of C.T.; Christina, the biological
mother of K.T.; and Paul, the father of both children.1 Paul argues that: (1) the
evidence was insufficient to support the jury’s findings regarding five different criteria
enumerated in family code section 161.001, see TEX. FAM. CODE ANN. § 161.001 (West
Supp. 2011); (2) the evidence was insufficient to show that termination was in the best
1
To protect the privacy of the parties, we refer to the children by their initials and to appellants by
fictitious names. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2011); TEX. R. APP. P. 9.8(b)(2).
interests of the children; (3) the trial court violated the notice and verification provisions
of the Indian Child Welfare Act (“ICWA”); (4) the trial court erred in admitting certain
testimony; and (5) he was deprived of his right to a fair trial because opposing counsel
was acquainted with one of the jurors. Christina joins in Paul’s evidentiary sufficiency
issues and also contends that: (1) the jury charge deviated from statutory language and
therefore deprived her of due process; and (2) she was afforded ineffective assistance
of counsel. Alice joins in Paul’s issues regarding the sufficiency of the evidence under
family code section 161.001 and ICWA notice, and she also contends that the trial court
lacked personal jurisdiction over her.2 We affirm as modified.
I. BACKGROUND
C.T. was born on March 26, 2000, to Paul and Alice. K.T. was born on March
29, 2009, to Paul and Christina. As of 2010, Paul and Christina lived together with the
two children. On June 16, 2010, the Department of Family and Protective Services (the
“Department”) filed petitions to terminate the appellants’ parental rights with respect to
C.T. and K.T. A trial was held before a Nueces County jury from November 28 to
December 2, 2011. The following facts were established at trial.
A. Michael Ilse
Corpus Christi Police Department officer Michael Ilse was dispatched to Driscoll
Children’s Hospital on June 15, 2010. He arrived to learn that ten-year-old C.T. was
being treated for second- and third-degree burns to her back, buttocks, and legs. Paul
informed Officer Ilse that C.T. had burned herself in the shower “several days earlier.”
Paul said that he “did do some treatment” on her but “then it got to the point” where he
felt she needed to be seen at a hospital. Christina, who arrived at the hospital later,
2
We have rearranged and renumbered appellants’ issues for the sake of clarity.
2
also told Officer Ilse that C.T. had burned herself with scalding hot water in the shower
several days earlier. At the hospital, Officer Ilse viewed pictures of C.T. that showed
what “appeared to be belt marks” on her body. According to Officer Ilse, Paul “said he
does spank [C.T.], and he did spank her that previous week; and it was likely that he
could have given her those marks, but he wasn’t sure.”
Paul consented to a search of the family’s apartment. Officer Ilse noted that the
apartment was clean, but while K.T.’s bedroom looked “like a child’s room would look,”
C.T.’s bedroom had only an air mattress on the floor with no sheets or blankets on it.
Officer Ilse stated: “That was a very big concern for me when I—going from [K.T.]’s
room seeing everything they had there and going into [C.T.]’s room. There w[ere]n’t
even sheets on the mattress.”3 C.T.’s room did, however, contain “first aid items” as
well as a shirt and towel that appeared to have blood and dirt stains on it. There was
also blood on the floor, trash can, and toilet in the bathroom that C.T. used. Officer Ilse
asked the parents about the source of the blood; Christina claimed that it was C.T.’s
menstrual blood. Crime scene technicians measured the temperature of the water
coming from the shower in the bathroom that C.T. used. Officer Ilse recalled that the
temperature of the water coming out of the shower “reached up to about 140 degrees in
a minute.”
3
Officer Ilse stated that the difference in the appearance of the bedroom was a “red flag” and he
elaborated as follows:
[I]nitially, I thought what I was looking at was what is called a targeted child, and a
targeted child is when you might have more than one child in a home and parents pick on
one particular child because maybe they’re not related to them, maybe that child is sickly,
you know, or is different than the other child. And in this particular case, I believe it’s
because [K.T.] was related to both [Paul] and [Christina], and—and [C.T.] was— . . . only
[Paul]’s.
On cross-examination, Officer Ilse acknowledged that the family had just moved into the apartment the
prior month, and that Paul stated he was waiting for a bonus check, which he would have used to
purchase furniture for C.T.’s room.
3
Paul and Christina were taken to the police station for questioning. Officer Ilse
noted that C.T. participated in two videotaped interviews with the Children’s Advocacy
Center (“CAC”)—one at Driscoll Hospital and one after C.T. had been transferred by
helicopter to the burn unit at Shriners Hospital in Galveston. In those interviews, C.T.
reported that Paul and Christina had hit her with a belt and burned her in the shower.
As a result of those accusations, Officer Ilse filed criminal charges against Paul and
Christina for causing serious bodily injury to a child. See TEX. PENAL CODE ANN. §
22.04(a)(1) (West Supp. 2011).
B. Julie Denney
Julie Denney, a forensic nurse examiner, testified that she examined C.T. at
Driscoll Children’s Hospital. Denney found a total of 33 injuries on C.T., including
bruises, cuts, a 60-by-40-centimeter burn area on her back, and red streaking on her
legs which were consistent with hot water burns. C.T. informed Denney that “I was
taking a shower and the water was too hot. I hit myself with my fists because I was in
pain.” C.T. also told Denney that “I walked into a wall and hit my face” and “My sister
scratched my face.” Appellants were not present at the time C.T. made these
statements. Denney agreed with counsel that, in her experience, children “sometimes
start off basically hiding the truth and then progressively com[e] out with the truth.”
C. Christina
Christina testified that she was convicted on four counts of causing injury to a
child and is currently incarcerated. She has been in a relationship with Paul since 2008
and gave birth to their daughter, K.T., in 2009. A court awarded Paul custody of his
other daughter, C.T., in February 2010; prior to that, C.T. had been living with her
paternal grandmother. Paul’s mother did not approve of his relationship with Christina.
4
According to Christina, C.T. was happy living with Paul and Christina, and she did not
want to go back to living with her grandmother. Christina denied ever physically
abusing C.T.
Christina explained that, on June 10 or 11, 2010, a notice was posted on the
door of her apartment advising residents of a problem with the apartment complex’s
water heater, and notifying residents that the water may be hotter than normal.
According to Christina, “the longer you would be in the shower, the water would start
getting hotter and hotter. So we had to adjust the water to colder each time.” Christina
stated that she warned C.T. about the problem. Christina then testified as follows with
respect to the events of June 12, 2010:
[C.T.] got into the shower. I want to say it was Saturday, maybe about
2:00 in the morning[4], and the first shower lasted about 20 minutes.
When I went to go check on her, she said—I asked her if she had taken a
shower properly, and [C.T.] said no, that she hadn’t washed herself
properly. I then told her to take another shower. I closed the door to the
restroom.
I went to the kitchen, and I was in the kitchen maybe about not even a
minute. I went to go check on our little girl and within that time I heard
[C.T.] saying, “It stings. It stings.” And I thought it was the soap or maybe
something in her eye. I didn’t think anything about the water. Then as
she said it again, I heard it in her voice. The tone was different.
I heard her crying. That’s when I ran to the restroom. I opened the door,
and I see [C.T.] pinned up against the wall, and I checked the water and
the water is scalding hot. . . . When I looked at the knob, the knob was on
hot, and I just turned it to cold.
Christina stated that she then checked C.T.’s body, but she did not see any
discoloration or anything else out of the ordinary.
The next day, Christina noticed that C.T. was in pain, and C.T. stated that her
4
Christina testified that Paul worked night shifts, and so the family would regularly spend time
together at odd hours.
5
back hurt. When Christina lifted up C.T.’s shirt, she “saw a bunch of little blisters.” She
described what she saw to police as “a horror show.” She notified Paul but did not take
C.T. to the hospital at that point. She administered Tylenol and applied antibiotic
ointment and gauze. Christina stated that C.T. behaved normally for the rest of that
day. She asked if C.T. was in pain, and C.T. said no. Christina stated that she did not
take C.T. to the hospital at that time in part because Christina had suffered a
miscarriage only two weeks earlier and was not allowed to lift heavy items or walk up
stairs. Moreover, Christina testified that when she “mentioned the hospital, [C.T.] would
cry and she said she didn’t want to go to the hospital.”5
The following Tuesday, however, “the blisters started oozing and the top layer of
the skin started coming off.” At this point, according to Christina, she realized that C.T.
had suffered burns from her shower three days earlier, and so she and Paul decided to
take C.T. to the hospital. Counsel for the Department asked Christina whether “leaving
[C.T.] untreated with what ultimately became second and third degree burns . . . for
more than four days caused her physical danger and . . . emotionally abused her?”
Christina replied: “She wasn’t left untreated. We did everything we could over-the-
counter. We didn’t know the severity of the burns. Once we knew that it was worse, we
proceeded to take her to seek proper medical attention.” Christina stated that she “was
raised on at-home remedies” and “never grew up on going to a hospital.” She said: “[I]f
I got hurt my grandmother and my mother would fix me at home. We never had the
means or wealth of going to the hospital. So when [C.T.] was burned, I thought the best
interest for me to help her [sic] was to put medication and gauze [on the burn].”
5
Counsel for the Department asked whether Christina decided not to take C.T. immediately to
the hospital because “[C.T.] was covered in bruises and you did not want to get in trouble”; Christina said
no.
6
Christina denied that she would discipline C.T. if C.T. failed to do chores.
According to Christina, Paul would discipline C.T. if she misbehaved. She was aware
that Paul had spanked C.T. with a belt; however, she denied that Paul ever spanked
C.T. with his work belt that he used as a corrections officer.6 When asked why C.T.
appeared at the hospital with “at least 33 injuries,” Christina said: “I can’t explain it.
When I saw [C.T.] with no clothes on, I, myself, asked her where those bruises came
from; and she said she didn’t know.” Later, Christina testified that she asked C.T. about
the bruises on her legs, and C.T. replied that “she hit herself because she was in pain.”
When asked about the difference in the appearance of the girls’ bedrooms,
Christina noted that most of the items in K.T.’s room were gifts that she received from
baby showers. She said that C.T. slept on a couch or air mattress and had pillows,
blankets, and sheets. She said that the spartan appearance of C.T.’s room was only
temporary; that C.T. had picked out furnishings for her room from Sears; and that they
were going to “pick up” the furnishings as soon as Paul received an expected bonus
check.
Christina stated that the Department took custody of the children in June 2010.
She was not allowed to see K.T., C.T., or Paul. At the time of trial, K.T. was living with
Christina’s uncle and his wife, both of whom have stable jobs.7 Christina acknowledged
that the Department had provided a service plan, which she signed, that required her to
attend parenting classes, to attend anger management classes, to submit to a
psychological exam, and to seek family and individual counseling. Christina stated that
6
She reasoned that, if Paul ever hit C.T. with his work belt, there would have been cuts as well
as bruising because there were metal pieces on the belt.
7
Christina also testified that K.T. had been placed with Paul’s mother prior to living with
Christina’s uncle and wife. Christina stated that, when she was in the care of Paul’s mother, K.T. suffered
“a busted lip and a busted nose.”
7
she finished the parenting class, underwent a psychological exam, and started the
anger management class and counseling but couldn’t finish them because she was
already convicted and incarcerated.
D. Dr. Arceneaux
Lisa Arceneaux, Ph.D., a pediatric psychologist, counseled C.T. at Shriners
Hospital in Galveston until March of 2011. She testified telephonically as to outcries of
abuse made by C.T. According to Dr. Arceneaux, C.T. reported that her father would
spank her, but she would not get spankings when she was with her grandmother. C.T.
reported that “she would smell even after she would take a shower, and [Christina] took
away her deodorant and toothbrush.” When Dr. Arceneaux asked C.T. why those
things were taken away from her, she replied that “[Christina] said that I wanted to be
stinky and I don’t use them so I don’t need them.” C.T. reported that “her parents didn’t
want anyone talking to her or anyone being close to her because she was stinky, and
that they were embarrassed and they didn’t want other people around her.” Dr.
Arceneaux testified:
I asked [C.T.] if she felt comfortable telling me what happened the day that
she was burned in the shower, and she started crying. And what she told
me was that her dad said it was discipline, and then she said it was
technically her fault. And when I asked her to explain, she talked to me
about how she was taking a shower and she was leaving the bathroom
and her dad told her that she still smelled and she needed to go back and
take a shower. And as she was crying, she was saying that, you know,
that she—she tried to bathe herself really well. She thought she was
clean, but she wasn’t. And when she got back into the shower, she stated
that the water was “hot, hot, hot,” and she said that she wanted to get out,
“but they wouldn’t let me.”
And her next statement was that, “My dad thought I had soap in my eyes,”
and that her stepmom “cl[e]nched her teeth and said in a”—this is in
quotes—“scary voice, don’t get out of the shower.” So I asked [C.T.] why
didn’t she just get out and she stated that she was afraid of what they
would do to her and they wouldn’t let her get out. . . . She stated that they
were in the bathroom, but they did not get in the shower with her. And she
8
reported that . . . she told her dad and stepmom that it stings, and she was
unable to remember how she got out of the shower. . . . She reported that
at the end of the shower that her stepmom turned the water to cold, and
she stated that she was already burned and it was really hurting.
Dr. Arceneaux explained that her clinical impression at that time was that “[C.T.] was
struggling with the guilt of her burn injury being her fault. She repeatedly stated that if
she had been a good child and a clean child, they would not have made her take
another shower.”
C.T. reported several other specific incidents of abuse to Dr. Arceneaux:
 Sometime shortly after the shower incident, when C.T. was “putting away the dishes,
and she didn’t know where a particular dish went,” her father got “really upset with
her.” According to Dr. Arceneaux, C.T. stated that “‘He got really mad and pushed
my back up against the wall and yelled at me. . . . He told me I was stinky, slow, and
stupid.’” The burns on C.T.’s back had not been treated as of that time.
 Another time, C.T. stopped to use the restroom at a Dairy Queen; when she came
back to the family’s car, Christina told her that K.T. had thrown up because “[C.T.]
smelled like a dead animal.” Later that night, Paul “slapped her in the head and said
that she was the one that started this shit.” Christina then told C.T. that “she wasn’t
going to stop him this time”—meaning that she would not stop Paul from spanking
her. Dr. Arceneaux stated:
[C.T.] said that her dad usually spanked her with a belt, but this time he
went to the closet and got his work belt. And she said that this was a
heavier belt and it hurt worse than the other belt. “It hurt a lot, and he hit
me a lot of times, and my dad is really strong.” [C.T.] then stated that she
was sometimes jealous of her little sister because they would hang out
with her little sister, but they didn’t do that to her, and that she didn’t know
why they thought she had to earn it, and that’s why they were hitting her.
 Another time, Paul and Christina “told [C.T.] that she needed to change her clothes
before going to bed, and she said that she didn’t change her clothes.” According to
9
Dr. Arceneaux:
[C.T. said] that her stepmom found her in the bed, “And she told my dad, I
think it’s time for her beatings now.” When I asked her what happened
next, [C.T.] said that, “My dad beat me with his duty belt. He kicked me
and slapped me in the head. Then he got his paddle and hit me with his
paddle, but the paddle broke. And when the paddle broke, he got really,
really mad. He kicked me more, and then kicked me in the butt. They
both kept asking me why I wasn’t crying,” but she said it hurt so much that
she just screamed. “And every time I do something bad, I get hit.”
 C.T “was never allowed to talk about her grandmother when she was with her dad;
and she stated that if she ever did mention her grandmother, she would get slapped
or hit.”
 C.T. once heard Christina saying that one of her cousins “put needles in her arm.”
When C.T. responded, “‘No, she doesn’t,’” Paul slapped her in the head.
 C.T. stated that “‘My dad spanked me because I didn’t vacuum the floor right. . . . I
didn’t move the furniture to vacuum so [Christina] spanked me three times with the
belt, then she told me to place my hands on the wall and not to move my hands and
she made me take off my pants because she thought it didn’t hurt with my pants
on.’”
 Another time, when C.T. could not find clean clothes to wear, Paul spanked her, but
C.T. “kept putting [her] hands behind” to block the spanking. Christina then “became
angry at her dad and told him to just beat her hands and stop being soft . . . .” C.T.
said “‘My dad got mad at her and told my stepmom to hit me. . . . [W]hen she was
spanking me, I kept moving because my butt was sore; and she accidentally hit my
dad with the belt.’” At that point, “‘He kicked me in the head and my back, then he
went and got his work belt and spanked me for a long time.’”
Dr. Arceneaux initially diagnosed C.T. with acute stress disorder; she then
10
diagnosed her with post-traumatic stress disorder.8 A diagnosis of post-traumatic stress
disorder requires that the patient suffer “a life threatening event” and show “avoidance”:
[S]he definitely had avoidance where she didn’t want to be around
anything that reminded her of the burn injury itself. She did have intense
psychological distress at the exposure to anything related to the burn
injury. She had recurrent nightmares and dreams about the events, and
she also had intrusive thoughts and images about what happened
regarding the traumatic injury itself.
She also stated that C.T. had testified at the criminal trial of Paul and Christina and that
the experience was “retraumatizing” for her and caused her to “regress” in her therapy.
Dr. Arceneaux opined that it was in C.T.’s best interest for Paul’s and Christina’s
parental rights to be terminated. She also noted that C.T. was very adamant in not
wanting to be reunited with her biological mother, Alice.
E. John Diaz
John Diaz, an investigator for the Department, testified that both children were
removed from the custody of Paul and Christina because there was an immediate or
imminent danger to the children if they were not removed.
Diaz stated that the last time Alice saw C.T. was when C.T. was six months old.
He did not know whether Alice had made an attempt to see C.T. while she was being
treated at the burn unit. According to Diaz, Alice has a “serious” history with the
Department, including “one prior termination” of one child and a “permanent managing
conservatorship to the father of her other child.” Diaz acknowledged, however, that
Alice continued to have joint managing conservatorship of C.T., that Alice had rights to
visitation, and that Alice had attempted to exercise those rights according to Department
records.
8
Dr. Arceneaux noted that post-traumatic stress disorder can be diagnosed only after four weeks
have elapsed since the traumatic event occurred.
11
F. Trisha Ponton
Trisha Ponton was the Court-Appointed Special Advocate (“CASA”) assigned to
C.T. and K.T. She testified that, at the time of trial, K.T. was in the custody of
Christina’s aunt, Michelle Nunez, and Nunez’s husband. Ponton stated that she has
seen K.T.’s interactions with the Nunezes and that “she’s very much at home, very
stable, very happy . . . .” Ponton testified that K.T. is “very attached and very settled” to
the Nunez family and that it is in her best interest for that situation to become
permanent.
Ponton stated that C.T. is in the custody of her paternal grandmother, Myra. 9
She said that Myra’s apartment was “adequate” to suit C.T.’s needs. C.T. is attending
school near Myra’s apartment and is “making A’s and B’s and has made friendships
again and is very much at home at that school.” Ponton noted that Myra had raised
C.T. from the time she was six months old; whereas C.T.’s biological mother, Alice, was
not part of her life. Ponton testified that it would be in the best interest of C.T. to stay in
the custody of Myra and for Paul’s and Christina’s parental rights to be terminated. On
cross-examination, Ponton acknowledged that Myra has a “limited” ability to walk and
has “limited” health.
G. Donna Enriquez
Donna Enriquez is the Department caseworker assigned to C.T. and K.T. She
visits each child at least once per month. She testified that C.T. and K.T. are able to
see each other two or three weekends per month, that their current caregivers facilitate
the meetings, and that the children are very close to each other. The Department’s
9
“Myra” is a fictitious name. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
12
permanency plan for both children is adoption by their current caregivers. 10
Enriquez stated that she repeatedly attempted to make contact with Alice—by
sending “[a]pproximately 35” letters to 20 different addresses—but that Alice has not
made contact with her. To Enriquez’s knowledge, Alice has never provided any sort of
support for C.T.; but Enriquez noted that she did not search Nueces County child
support records to confirm that.
Service plans established by the Department required each of the three
appellants to submit to psychological examinations, participate in counseling, anger
management and parenting classes, provide the Department with locating information
for themselves and relatives that would be willing to care for the children, and submit to
drug and alcohol assessment. According to Enriquez, neither Paul nor Alice completed
any of these requirements; Christina failed to complete the anger management and
counseling requirements. She believed termination of the parental rights for all three
appellants was in the best interest of both children.
H. Michelle Nunez
Nunez stated that K.T. had been staying with her family for over nine months as
of the time of trial. According to Nunez, K.T. is “very attached” to her new family. She
calls the Nunezes “mama” and “daddy.” K.T. visits C.T. at Myra’s apartment once per
month and has a good relationship with C.T., although K.T. tends to cry when she gets
dropped off. Nunez stated that she wants to adopt K.T. if the jury terminates the
parental rights of Paul and Christina.
I. Paul
Paul testified that he was convicted for causing injury to C.T., but that he is not
10
Enriquez acknowledged that, at one point, K.T. had “fallen off a couch” and “bumped her head”
while in the care of Myra.
13
guilty of those charges. He testified that he got home late on the night of Friday, June
11, 2010, and the family ate dinner, watched TV, and spent time together like they
normally would. C.T. went to take a shower; she then had to take another one “[j]ust to
make sure that—that she was clean.” Paul said: “You know, sometimes I’ll take—I’ll
take one or two showers myself just to make sure I’m fully clean.” Paul denied that
Christina ordered C.T. to take a second shower because she smelled. He testified:
Next thing [Christina] was in the kitchen. I was in the living room. Next
thing I hear is, “It stings, it stings,” and I thought she had gotten soap in
her eye, and that’s when she yelled out again, “It stings.” And in the tone
of her voice, I could tell something was wrong. That’s when we ran to the
shower—to the restroom, I’m sorry, and noticed that the water was hot,
was turned all the way to hot. And that’s when [Christina] turned the water
all the way to cold and turned it off.
When asked how long he thought C.T. was in the hot water before it was turned off,
Paul replied: “As soon as she called out the second time, we ran over there.
Everything happened so fast I don’t know the time.” When asked why a 10-year-old
child would stay in a scalding hot shower if there was no one preventing her from
getting out, Paul replied: “I don’t know. I really don’t know what’s going through her
head at that time.” After C.T. got out of the shower, Paul said that “[h]er back was fine.”
The next day, there were “little blisters” on her back. Paul testified: “[T]o me they didn’t
look that bad because I’m used to seeing things in my—in my line of work in the
military.”11
Paul stated that he learned how to treat burns when he served in the Marines as
11
Paul’s counsel presented him with medical records from the Shriners Hospital burn unit that
had been entered into evidence. Paul read aloud one report from a June 23, 2010 examination. The
report read:
This young girl has mainly superficial burns. I did not look at her completely in the tub but
observed that she has free extremity use; and although she has burns on her feet, they
are not functionally threatening. Likewise, the burns in other areas on the body seem to
be second degree only and it does not appear that she will be needing any surgical
procedures. She says that she is getting along just fine.
14
a field medical technician. He gave C.T. Tylenol every four to six hours. C.T. “showed
no signs of pain” or infection and “repeatedly told [Paul] that she wasn’t in pain.” He
purchased burn relief gel and gauze and popped C.T.’s blisters with a needle.
According to Paul, “the burns were superficial. . . . There was nothing to indicate that
the burns were severe at that time.” The next day, Monday, C.T. again acted normally,
“showed no signs of pain” and “said she wasn’t in pain.” On Tuesday, Paul “knew
something was wrong. I knew that she had taken a turn for the worse . . . that’s when I
immediately decided it was time to go to the hospital.” Paul added: “It wasn’t until that
day when I took her to the hospital that I noticed all those bruises.”
Paul denied that C.T. was required to do chores, and he denied pushing her up
against the wall for not putting away dishes correctly. He did not know why C.T.
reported those things to Dr. Arceneaux. He did admit to spanking C.T. as punishment
“if she lies or if she gets in trouble, anything that’s bad behavior.” He said that he would
use a belt to whip C.T., but he never used his work belt or a paddle. Paul said that, if he
were able to reunite with his daughters after being released from prison, he would no
longer use corporal punishment.
Paul stated that C.T. had been living with his mother, Myra, up until February of
2010. At that time, Myra sought court-ordered child support; Paul then sought custody
of C.T. and obtained it via court order. Paul denied that he only sought custody of C.T.
because his mother, C.T.’s caregiver, had filed for child support. He admitted, however,
that he did not make attempts to visit C.T. when she was in Myra’s care. In early 2010,
the family moved out of a two-bedroom apartment, breaking a lease in the process, and
moved into a three-bedroom apartment, which is where the shower incident occurred
several months later.
15
Paul testified that he is currently taking the anger management classes that were
required of him by the Department’s service plan, but he has not finished those classes.
Paul stated that he also has not completed the parenting class, psychological exam, or
counseling requirements contained in the service plan. He agreed with counsel for the
department that, even if he and Christina are paroled as soon as they are eligible, in
2016, they will still be on community supervision for ten years from the time of
sentencing, and one of the terms of community supervision is that they “not associate or
have any contact with [C.T.] or [her] family.” He acknowledged that, unless a court
changes those terms, C.T. would be in her twenties by the time Christina and he would
be permitted to see C.T. pursuant to the criminal judgment.
J. Myra
Myra, Paul’s mother, testified that she is 61 years old and is “disabled” in that she
has osteoporosis and high blood pressure. She has cared for C.T. “[s]ince she was
born.” Paul lived with Myra and C.T. while he was serving in the military in North
Carolina. C.T. was three years old when the family moved to Texas. At some point,
Paul decided to move in with Christina; C.T. stayed with her grandmother. Some time
later, Myra told Paul that she needed financial help to continue to support C.T.;
however, Paul did not provide any help, so Myra sought assistance from the Attorney
General’s office in obtaining child support.12 According to Myra, she was not awarded
child support but rather was ordered to return C.T. to Paul within one week. Myra
stated that Paul “didn’t want me in their life anymore.” After C.T. was returned to the
custody of her father, Myra was not allowed to see C.T. “because [Christina] didn’t want
12
Myra testified that, between the time that Paul moved in with Christina and the time that she
sought child support, Paul visited C.T. only once. She further stated that, in 2010, C.T. once asked to
speak to her biological mother, Alice, and so Myra called Alice and C.T. was able to speak with her and
her maternal grandmother.
16
me to.”
C.T. is now living with Myra. Myra received special training at Shriners Hospital
to care for C.T.’s injuries. K.T. visits with them every other weekend. There was an
incident where K.T. and C.T. were playing and K.T. fell. Myra brought her to the
emergency room and called the Department to report the incident. The injury was not
serious, and “by the time we got back home, [K.T.] was laughing and grinning.” Myra
conceded that she practiced corporal punishment on Paul, her son, but would not do so
with C.T.
According to Myra, C.T. wants her father and Christina to “leave [her] alone, and
let [her] stay” with Myra. Myra intends to adopt C.T. if Paul’s parental rights are
terminated. She believes that it is in K.T.’s best interest to stay in the custody of the
Nunezes.
In discussing the extent to which public assistance funds would be available to
assist her in supporting C.T., Myra mentioned that C.T. is “half Indian” because “I’m half
Black Foot, and her mom [is] half Cheyenne.” Myra claimed that C.T. would be eligible
for federal grants for college tuition because of her “Indian blood.”
K. Vicky Magana
Vicky Magana, a clinical social worker, provided counseling to C.T. since March
of 2011. She testified, over objection, that C.T. reported to her that Paul and Christina
had abused her physically. According to Magana, C.T. “said that she was beaten on—
close to [a] daily basis being slapped, punched, and kicked for what seemed to her two
to three hours a day. One time she was handcuffed and then beaten.” C.T. reported
that Christina “came in one time and said . . . that [Paul] was not beating [C.T.] hard
enough and so she started beating her.” C.T. reported that Christina “called her
17
derogatory names four to five times a [day]” and fought with Paul on a daily basis.
Magana diagnosed C.T. with “fairly severe” post-traumatic stress disorder. She
reached her diagnosis independently from Dr. Arceneaux. She acknowledged on cross-
examination that post-traumatic stress disorder may arise from an accidental, as
opposed to intentional, trauma.
According to Magana, C.T. wants to be able to visit with her biological mother,
Alice, but does not want to live with her, and C.T. has no problem with Myra deciding
whether or not she can visit with Alice. She stated it is in C.T.’s best interests for Paul’s
and Christina’s rights to be terminated so her grandmother can adopt her.
L. Verdict and Judgment
The jury found by clear and convincing evidence that both Paul and Christina
violated parts (D), (E), (L), (O) and (Q) of family code subsection 161.001(1). See TEX.
FAM. CODE ANN. § 161.001(1)(D) (permitting involuntary termination of parental rights on
grounds that the parent “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of the
child”); id. § 161.001(1)(E) (permitting termination on grounds that parent “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”); id. § 161.001(1)(L)(ix)
(permitting termination on grounds that parent has “been convicted or has been placed
on community supervision . . . for being criminally responsible for the death or serious
injury of a child” under penal code section 22.04); id. § 161.001(1)(O) (permitting
termination on grounds that parent failed to comply with family service plan); §
161.001(1)(Q) (permitting termination on grounds that parent knowingly engaged in
criminal conduct that resulted in the parent’s conviction and confinement “for not less
18
than two years from the date of filing the petition”).
The jury also found by clear and convincing evidence that Alice had violated
parts (N) and (O) of subsection 161.001(1). See id. § 161.001(1)(N) (permitting
termination on grounds that the parent “constructively abandoned the child who has
been in the permanent or temporary managing conservatorship of the [Department] or
an authorized agency for not less than six months, and: (i) the [Department] or
authorized agency has made reasonable efforts to return the child to the parent; (ii) the
parent has not regularly visited or maintained significant contact with the child; and (iii)
the parent has demonstrated an inability to provide the child with a safe environment”);
id. § 161.001(1)(O).
The jury determined that termination of the appellants’ parental rights was in the
best interests of the children, and the trial court rendered judgment on the verdict. This
appeal followed.
II. DISCUSSION
A. Personal Jurisdiction Over Alice
We first address Alice’s fourth issue, in which she argues that the trial court
lacked personal jurisdiction over her because she was never served with process, either
by personal service or by publication. See id. § 102.009(a)(7) (West Supp. 2011)
(requiring service of citation on “each parent as to whom the parent-child relationship
has not been terminated or process has not been waived under Chapter 161”); id. §
102.009(c) (providing that “[c]itation . . . shall be issued and served as in other civil
cases). Alice further argues that the appearance of her court-appointed counsel at trial
did not constitute a general appearance which would waive service of citation. See TEX.
R. CIV. P. 120.
19
If a trial court enters a judgment without acquiring personal jurisdiction over the
parties, the judgment is void. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).
Moreover, because an involuntary termination of parental rights involves fundamental
constitutional rights, we must exercise the utmost care in ensuring that a parent’s rights
are acknowledged and protected. Velasco v. Ayala, 312 S.W.3d 783, 798 (Tex. App.—
Houston [1st Dist.] 2009, no pet.).
A party waives service of process if it makes a general appearance. TEX. R. CIV.
P. 120 (providing that the entrance of a general appearance “shall have the same force
and effect as if the citation had been duly issued and served as provided by law”); see
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14 (1985) (“[T]he personal
jurisdiction requirement is a waivable right.”). A party enters a general appearance
when it: (1) invokes the judgment of the court on any question other than the court’s
jurisdiction; (2) recognizes by its acts that an action is properly pending; or (3) seeks
affirmative action from the court. Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex.
2004).
The Department filed its petition seeking termination of appellants’ parental rights
on June 16, 2010. The same day, the trial court rendered temporary emergency orders
appointing counsel for each of the three appellants and granting custody of both
children to the Department until a full adversary hearing could be held. See TEX. FAM.
CODE ANN. § 262.205 (West 2008). The adversary hearing took place on June 30,
2010.13 Following the hearing, the trial court rendered another temporary order granting
custody to the Department and requiring appellants to comply with the service plans
13
The record does not contain a transcript of the June 30, 2010 adversary hearing.
20
established by the Department. The temporary order stated that “Respondent Mother
[Alice] appeared through attorney of record . . . and announced ready.”
In a “Report of Attorney ad Litem” filed with the trial court on February 11, 2011,
Alice’s court-appointed counsel stated that he “has been unable to contact [Alice]” but
notes that “[Alice] did participate in an earlier hearing via telephone, but that telephone
number is currently disconnected.” In another “Report of Attorney ad Litem” filed on
April 12, 2011, counsel stated that he “has been in telephonic contact with [Alice]” and
that “[Alice] has requested a jury trial in the pending termination suit and expresses an
interest in any services that might be offered her by the Department.” Both reports were
signed by Alice’s court-appointed counsel. Counsel also fully participated at trial,
examining each witness, presenting pre-trial motions and presenting opening and
closing arguments.
It has been held that, while a defendant’s personal appearance before a court
generally indicates a submission to the court's jurisdiction, the mere presence in court
by an attorney retained as counsel by a party does not constitute a general appearance
by the party, unless the attorney seeks a judgment or an adjudication on some question.
Mays v. Perkins, 927 S.W.2d 222, 225 (Tex. App.—Houston [1st Dist.] 1996, no writ)
(construing TEX. R. CIV. P. 120). We agree with this construction of the applicable rule.
Here, Alice never appeared before the court in person, but she did participate in a
hearing via telephone, according to counsel’s February 11, 2011 report. Moreover, her
counsel made requests on her behalf—including a request for a jury trial according to
counsel’s April 12, 2011 report—and he sought judgment denying the Department’s
petition for termination of parental rights on Alice’s behalf. Counsel participated at the
adversary hearing and at trial. Under these circumstances, we conclude that counsel
21
entered a general appearance that waived service of process on Alice. Further, having
reviewed the record, we find that counsel’s representation was sufficient to protect
Alice’s fundamental constitutional rights. The trial court therefore properly exercised
personal jurisdiction over Alice. Her fourth issue is overruled.
B. Evidentiary Sufficiency
All three appellants challenge the legal and factual sufficiency of the evidence
supporting the jury’s findings.
1. Applicable Law and Standard of Review
Involuntary termination of parental rights involves fundamental constitutional
rights and divests the parent and child of all legal rights, privileges, duties and powers
normally existing between them, except for the child's right to inherit from the parent.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778
(Tex. App.—Corpus Christi 2006, no pet.). Termination must be supported by clear and
convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210
S.W.3d at 778. This intermediate standard falls between the preponderance of the
evidence standard of civil proceedings and the reasonable doubt standard of criminal
proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77,
83 (Tex. App.—Fort Worth 2006, pet. denied). It is defined 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.” TEX. FAM. CODE ANN. § 101.007
(West 2008); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Before terminating parental rights, the trier of fact must find that the parent
committed an act prohibited by subsection 161.001(1) of the Texas Family Code and
that termination is in the best interest of the child. Id. § 153.002 (West 2008); id. §
22
161.001; see In re J.L., 163 S.W.3d at 84. The following non-exhaustive list of factors is
considered in determining whether parental termination is in the child's best interest: (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
parenting abilities of the parties seeking custody; (5) the programs available to assist
the parties seeking custody; (6) the plans for the child by the parties seeking custody;
(7) the stability of the home or proposed placement; (8) the acts or omissions committed
by the parent which may indicate that the existing parent-child relationship is not proper;
and (9) any excuse for the acts or omissions committed by the parent. Holley v. Adams,
544 S.W.2d 367, 372 (Tex. 1976). The party seeking parental termination is not
required to prove all nine factors. In re C.H., 89 S.W.3d at 27; In re J.R.S., 232 S.W.3d
278, 284 (Tex. App.—Fort Worth 2007, no pet.) (“These factors are not exhaustive;
some listed factors may be inapplicable to some cases; other factors not on the list may
also be considered when appropriate.”). In some cases, undisputed evidence of just
one factor may be sufficient to support a finding that termination is in the best interest of
the child. In re C.H., 89 S.W.3d at 27.
In reviewing the legal sufficiency of the evidence supporting termination, we “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.L., 163 S.W.3d at 85. We must assume that the trier of fact resolved
disputed facts in favor of its finding if it was reasonable to do so. Id. We must also
consider undisputed evidence, if any, that does not support the finding. Id. at 86.
In reviewing the evidence for factual sufficiency, we must give due deference to
the findings of the trier of fact and must not supplant the judgment with our own. In re
23
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire
record, a fact finder could have reasonably formed a firm conviction or belief that the
parent violated the relevant conduct provision of subsection 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the child. In
re C.H., 89 S.W.3d at 28.
2. Termination of Paul’s Parental Rights
By his first issue, Paul contends that the evidence was legally and factually
insufficient to support the jury’s separate findings that he violated parts (D), (E), (L), (O)
and (Q) of family code subsection 161.001(1). See TEX. FAM. CODE ANN. §
161.001(1)(D), (E), (L)(ix), (O), (Q). By his second issue, Paul contends that the
evidence was insufficient to support the finding that termination of his parental rights
was in the children’s best interests.
We first address the finding made under part (L). That section provides that
termination of parental rights may be based on grounds that the parent has “been
convicted or has been placed on community supervision . . . for being criminally
responsible for the death or serious injury of a child under,” inter alia, section 22.04 of
the penal code. See id. § 161.001(1)(L)(ix).
The evidence at trial, including Paul’s own testimony, established that Paul was
convicted on five separate felony counts under section 22.04. See TEX. PENAL CODE
ANN. § 22.04. The convictions were for two first-degree felony counts and three third-
degree felony counts. See id. Paul was sentenced to prison terms of twelve, ten, ten,
five, and two years.14 Paul concedes that he was convicted but argues that the
14
The twelve-year and two-year sentences, along with one of the ten-year sentences, were
ordered to run concurrently. The other ten-year sentence and the five-year sentence were suspended
and Paul was placed on community supervision for ten years.
24
requirements of part (L) of subsection 161.001(1) were not met because he was not
convicted of causing “serious” bodily injury to C.T. See TEX. FAM. CODE ANN. §
161.001(1)(L)(ix).
It is true, as Paul argues, that “serious” injury to the victim may not have been
among the elements required to convict Paul under section 22.04. See TEX. PENAL
CODE ANN. § 22.04.15 We nevertheless conclude that the evidence supported a finding
that the injuries he caused were “serious” in this case.16 It is undisputed that the injuries
which Paul was convicted of causing were the second- and third-degree burns suffered
by C.T. on June 12, 2010. The evidence established that those burns covered
approximately 22.5% of C.T.’s body, including a 60-by-40-centimeter burn on her back
15
The indictments filed against both Paul and Christina alleged seven counts of intentionally or
knowingly causing injury to C.T. The first two counts specifically alleged that Paul and Christina had
caused “serious bodily injury” to C.T. See TEX. PENAL CODE ANN. § 22.04(a)(1), (e), (f) (West Supp. 2011)
(providing that intentionally or knowingly causing “serious bodily injury” to a child is a first-degree felony,
whereas intentionally or knowingly causing mere “bodily injury” to a child is a third-degree felony). Both
Paul and Christina were convicted on, among others, counts one and two. However, because the
criminal jury charge is not part of the record before this Court, we cannot say definitively that Paul and
Christina were convicted under section 22.04 for causing “serious” bodily injury; that is, it is possible that
the counts on which Paul and Christina were convicted were not identical to those alleged in the
indictment. For purposes of this opinion, we will therefore assume that a showing of “serious” bodily
injury was not necessary to convict Paul or Christina.
16
In a recent memorandum opinion, the First District Court of Appeals noted that the family code
does not define “serious injury” but that the dictionary defines it as an injury “having important or
dangerous possible consequences.” C.H. v. Dep’t of Family & Protective Servs., Nos. 01-11-00385-CV,
01-11-00454-CV & 01-11-00455-CV, 2012 Tex. App. LEXIS 1382, at *16–17 (Tex. App.—Houston [1st
Dist.] Feb. 23, 2012, pet. denied) (mem. op.) (citing W EBSTER'S NEW COLLEGIATE DICTIONARY 1050
(1981)).
Further, in In re L.S.R., the Texas Supreme Court suggested that the elements of part (L) of
family code subsection 161.001(1) were satisfied even though the crime appellant was convicted of did
not require a showing that the victim suffered “serious” injury. 92 S.W.3d 529, 530 (Tex. 2002) (per
curiam). In that case, the appellant was convicted of indecency with a child. Id. The Court of Appeals
affirmed the termination of appellant’s parental rights but deleted grounds under part (L), noting that there
was “no showing that [the victim] suffered death or serious injury as a result of [appellant’s] conduct.” Id.
The Supreme Court denied appellant’s petition for review but “disavow[ed] any suggestion that
molestation of a four-year-old, or indecency with a child, generally, does not cause serious injury.” Id.
Here, viewing all the evidence, we similarly find that Paul was convicted for causing C.T. to suffer
“serious” injury even though the crime he was convicted of did not necessarily require a showing of
“serious” injury.
25
and burns on her thighs, buttocks, and feet. One day later, Christina described the
appearance of the burns as a “horror show.” When C.T. was finally taken to the hospital
for treatment, she was evacuated by helicopter to a specialized burn unit in a hospital
hundreds of miles away, in Galveston, where she was kept in the intensive care unit for
nearly two weeks. The burns required months of treatment and physical therapy. In
short, the evidence plainly allowed a reasonable fact-finder to form a firm conviction or
belief that C.T.’s injuries were indeed “serious” and that Paul was convicted of causing
them. Accordingly, the evidence was legally and factually sufficient to support the jury’s
finding under part (L) of family code subsection 161.001(1).17
We must next determine whether the jury’s finding as to the best interests of the
children was supported by sufficient evidence. We find that it was. Dr. Arceneaux
testified that C.T. reported multiple instances of abuse at the hands of Paul. In
particular, C.T. reported to Dr. Arceneaux that, after she had been burned, Paul “got
really mad” at her for failing to put dishes away properly and “pushed [her] back up
against the wall and yelled at [her]”; she reported that Paul “hit [her] a lot” with his work
belt; she reported that Paul “kicked [her] and slapped [her] in the head” and hit her with
“his paddle.” Magana also testified that C.T. made outcries of abuse to her. C.T. told
Magana that that she was being beaten on “close to [a] daily basis . . . for what seemed
to her two to three hours a day” and that she was once “handcuffed and then beaten.”
17
We note that our conclusion as to this evidence is also applicable to the termination of Paul’s
parental rights to K.T. Part (L) of section 161.001(1) merely requires a showing that the parent was
convicted of causing serious injury to “a” child—not necessarily the child subject to termination
proceedings. See TEX. FAM. CODE ANN. § 161.001(1)(L) (West Supp. 2011). Therefore, the fact that Paul
was convicted of causing serious injury to C.T. satisfies the statute with regard to the termination of his
parental rights to K.T.
Moreover, because the evidence was sufficient to support the jury’s finding that Paul violated part
(L) of family code subsection 161.001(1) with respect to both children, we need not address whether the
evidence was sufficient to support the jury’s findings under parts (D), (E), (O), and (Q) of that section.
See TEX. R. APP. P. 47.1.
26
Although Paul denies these accusations, the fact finder enjoys the exclusive right to
resolve credibility issues and conflicts within the evidence. In re R.D.S., 902 S.W.2d
714, 716 (Tex. App.—Amarillo 1995, no writ). It may freely choose to believe all, part,
or none of the testimony espoused by any particular witness. Id. The jury in this case
could have reasonably believed C.T.’s outcries, as relayed by Dr. Arceneaux and
Magana, and it could have reasonably disbelieved Paul’s denials. See id.; see also
Holley, 544 S.W.2d at 372 (noting that one factor to consider in determining best
interests is “the acts or omissions committed by the parent which may indicate that the
existing parent-child relationship is not proper”).
Other evidence supporting the jury’s finding as to the children’s best interest
included: Dr. Arceneaux’s and Magana’s diagnoses of C.T. as suffering post-traumatic
stress disorder because of the shower incident; Ponton’s testimony that C.T. is thriving
under the care of Myra and that K.T. is “very stable” and “very happy” with the Nunezes;
and Enriquez’s testimony that C.T. and K.T. are able to see each other regularly and
that their caregivers facilitate the visitation. See id. (noting that the emotional and
physical danger to the child now and in the future and the stability of the home or
proposed placement are factors in determining best interests).
Considering the nine factors as set forth by the Texas Supreme Court in Holley,
see id., we conclude that a reasonable fact-finder could have formed a firm belief or
conviction that termination of Paul’s parental rights was in the best interests of both
children. Paul’s first and second issues are overruled.
3. Termination of Christina’s Parental Rights
Christina, by her first issue on appeal, contends that the evidence was legally
and factually insufficient to support the jury’s separate findings that she violated parts
27
(D), (E), (L), (O) and (Q) of family code subsection 161.001(1). See TEX. FAM. CODE
ANN. § 161.001(1)(D), (E), (L)(ix), (O), (Q). She contends by her second issue that the
evidence was insufficient to support the finding that termination of her parental rights
was in the children’s best interests.
Again, we first address the jury’s finding that Christina violated part (L) of
subsection 161.001(1). The evidence established that Christina and Paul were tried
together for causing injury to C.T. and were convicted. Christina was convicted on two
first-degree felony counts and two third-degree felony counts, and she was sentenced
to prison terms of thirteen, seven, five, and two years. 18 The evidence also shows, as it
does for Paul, that Christina’s conviction was for causing “serious” injury to C.T. See id.
§ 161.001(1)(L)(ix). The evidence was therefore legally and factually sufficient to
support the jury’s finding that Christina violated part (L) of family code subsection
161.001(1).19
The evidence was also sufficient to support the jury’s finding that termination of
Christina’s parental rights was in K.T.’s best interests. With respect to the shower
incident, Dr. Arceneaux testified that C.T. reported that Christina ordered her not to get
out of the shower, even though the water was hot enough to burn. Christina’s own
testimony established that, although she saw what she described to police as a “horror
show” of blisters on C.T.’s back, she did not initially take C.T. to the hospital for
treatment. Christina conceded that one of the reasons she did not immediately take
18
The thirteen-year and seven-year sentences were ordered to run concurrently. The five-year
and two-year sentences were suspended and Christina was placed on community supervision for ten
years.
19
Again, this finding is applicable to the termination of Christina’s rights as to K.T., even though
the conviction was for causing injury to C.T. See supra n.17. And again, because there is sufficient
evidence to support the jury’s finding that Christina violated part (L) of family code subsection 161.001(1),
we need not address whether the evidence was sufficient to support the jury’s findings under parts (D),
(E), (O), and (Q). See TEX. R. APP. P. 47.1.
28
C.T. to the hospital was that she had recently suffered a miscarriage and was not
allowed to lift heavy items or walk up stairs. C.T. also told Dr. Arceneaux that Christina
once became angry at Paul and “told him to just beat [C.T.’s] hands and stop being
soft.” According to Magana, C.T. reported that Christina “came in one time and
said . . . that [Paul] was not beating [C.T.] hard enough and so she started beating her.”
C.T. also told Magana that Christina frequently “called her derogatory names.” Ponton
testified that K.T. is happy and stable in her current custody arrangements. All of this
evidence is relevant to the question of K.T.’s best interests and supports the jury’s
finding. See Holley, 544 S.W.2d at 372 (stating that factors to consider in determining
best interests include: the emotional and physical danger to the child now and in the
future; the parenting abilities of the parties; the stability of the home or proposed
placement; and the acts or omissions committed by the parent which may indicate that
the existing parent-child relationship is not proper).
Viewing all the evidence in light of the Holley factors, we conclude that a
reasonable juror could have formed a firm belief or conviction that the termination of
Christina’s parental rights was in the best interests of K.T. We overrule Christina’s first
two issues.
4. Termination of Alice’s Parental Rights
By her first two issues on appeal, Alice argues that the evidence was legally and
factually insufficient to support the jury’s findings that she violated parts (N) and (O) of
family code subsection 161.001(1).20
20
We note that the trial court’s final judgment stated that Alice violated parts (C) and (O) of the
statute. See TEX. FAM. CODE ANN. § 161.001(1)(C) (permitting termination on grounds that the parent
“voluntarily left the child alone or in the possession of another without providing adequate support of the
child and remained away for a period of at least six months”). However, the jury charge asked only
whether Alice violated parts (N) and (O). It is therefore apparent that the trial court erred in stating in its
final judgment that Alice violated part (C). We will modify the judgment to reflect instead the jury’s
29
We first address whether the evidence was sufficient to support the finding under
part (N). That part permits termination of parental rights if the parent:
constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the [Department] or an authorized
agency for not less than six months, and:
(i) the [Department] or authorized agency has made reasonable
efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact
with the child; and
(iii) the parent has demonstrated an inability to provide the child with a
safe environment . . . .
TEX. FAM. CODE ANN. § 161.001(1)(N). Alice concedes: (1) that C.T. has “been in the
permanent or temporary managing conservatorship of the [Department] for not less than
six months”; (2) that the Department made reasonable efforts to return C.T. to her; and
(3) that she has not “regularly visited or maintained significant contact with” C.T. She
disputes only the evidence supporting the third prong under part (N); i.e., that she
“demonstrated an inability to provide the child with a safe environment.” See id. §
161.001(1)(N)(iii).
Alice argues that “there was no evidence indicating that [she] knew about the
service plan adopted by the Court, that she did not attempt to find a place for C.T., that
she did not provide support for C.T., or any other factor displaying instability on the part
of [Alice].” The record, however, shows that: (1) Alice did not complete any of the
requirements of the service plan established for her by the Department and ordered by
the court; (2) the Department sent Alice approximately 35 letters to 20 different
addresses in an attempt to reach Alice, but Alice never responded; (3) Alice had made
contact with C.T. only once in nine-and-a-half years; and (4) Alice had her parental
conclusion that Alice violated parts (N) and (O). See TEX. R. APP. P. 43.2(b).
30
rights to a second child terminated and lost permanent custody of a third child. This
evidence was sufficient to allow a reasonable trier of fact to form a firm belief or
conviction that Alice was unable to provide C.T. with a safe environment. See id.21
Alice does not contend, on appeal, that the evidence was insufficient to support
the jury’s finding that termination of her parental rights was in C.T.’s best interests;
accordingly, we do not address that issue. We overrule Alice’s first and second issues.
C. ICWA Notice and Verification
Paul, by his seventh issue, and Alice, by her third issue, each contend that the
trial court violated ICWA’s verification and notice provisions. Paul and Alice argue that
we must therefore remand the case to the trial court so that proper notice and
verification can be sought and a hearing may be conducted to determine whether C.T.
(and K.T., in the case of Paul) are “Indian” children under ICWA.
ICWA was enacted by Congress in 1978 in response to “an alarmingly high
percentage of Indian families” who are “broken up by the removal, often unwarranted, of
their children from them by nontribal public and private agencies” and the “alarmingly
high percentage of such children” who were being “placed in non-Indian foster and
adoptive homes and institutions.” Doty-Jabbaar v. Dallas County Child Protective
Servs., 19 S.W.3d 870, 874 (Tex. App.—Dallas 2000, pet. denied) (quoting 25 U.S.C. §
1901(4)). ICWA applies to all state child custody proceedings involving an Indian child
when the court “knows or has reason to know” that an Indian child is involved. Id. (citing
25 U.S.C. § 1912(a)); see Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 162 (Tex.
App.—Houston [14th Dist.] 1995, no writ). An “Indian child” is defined in ICWA as an
21
Because we find that the evidence was sufficient to support the jury’s finding that Alice violated
part (N) of subsection 161.001(1), we need not address whether the evidence was also sufficient to
support the finding that Alice violated part (O) of that statute. See TEX. R. APP. P. 47.1.
31
“unmarried person who is under age eighteen and is either (a) a member of an Indian
tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a
member of an Indian tribe.” 25 U.S.C. § 1903(4). Subsection 1912(a) of ICWA
provides:
In any involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, the party seeking the
foster care placement of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and the Indian child’s tribe,
by registered mail with return receipt requested, of the pending
proceedings and of their right of intervention. If the identity or location of
the parent or Indian custodian and the tribe cannot be determined, such
notice shall be given to the Secretary [of the Interior] in like manner, who
shall have fifteen days after receipt to provide the requisite notice to the
parent or Indian custodian and the tribe. No foster care placement or
termination of parental rights proceeding shall be held until at least ten
days after receipt of notice by the parent or Indian custodian and the tribe
or the Secretary: Provided, That the parent or Indian custodian or the
tribe shall, upon request, be granted up to twenty additional days to
prepare for such proceeding.
Id. § 1912(a).
Paul and Alice argue that the trial court “ha[d] reason to know that an Indian
child” was involved in the case—and the notice and verification requirements of
subsection 1912(a) were therefore applicable—because of Myra’s testimony that C.T. is
“half-Indian.” The Department, for its part, agrees that the case should be abated and
remanded to the trial court for a determination as to whether ICWA applies.
We disagree that the case should be remanded or abated, however, because we
do not believe that the trial court “kn[e]w or ha[d] reason to know that an Indian child”
was involved in the case. See id. The only evidence adduced regarding C.T.’s heritage
was Myra’s statement that Myra is “half Black Foot” and that Alice is “half Cheyenne.”
She did not state that either Alice, Paul, C.T., K.T., or herself were “members” of an
Indian tribe, and she did not state that either child would be “eligible for membership” in
32
an Indian tribe. See id. § 1903(4) (defining “Indian child” as a person under eighteen
who either: (a) is a member of an Indian tribe; or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe); see also In re
Trever I., 973 A.2d 752, 758 (Me. 2009) (noting that “the party asserting the applicability
of the ICWA has the burden to provide sufficient information to at least put the court or
Department on notice that the child may be an ‘Indian child,’ within the meaning of the
ICWA, and that further inquiry is necessary”); In re Arianna R.G., 657 N.W.2d 363, 370
(Wis. 2003) (holding that ICWA notice provisions did not apply because “the information
available to the court was too vague for the court to have reason to know” that children
were Indian where only evidence was father’s statement that his children have “Indian
heritage” and that their “ancestry stems from the Ojibwa Tribe in Marinette, Wisconsin”).
Paul’s seventh issue and Alice’s third issue are overruled.
D. Admission of Evidence
Paul argues by three issues that the trial court erred by admitting certain
evidence. We review a trial court’s decision to admit or exclude evidence for abuse of
discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). Even if the trial court abused
its discretion, we may only reverse the judgment on that basis if the error probably
caused the rendition of an improper judgment or prevented Paul from properly
presenting his appeal. TEX. R. APP. P. 44.1(a).
By his eighth issue, Paul contends that the trial court erred in allowing Dr.
Arceneaux to testify as to whether she believed the outcries of abuse made by C.T.
Counsel for the Department asked Dr. Arceneaux: “Do you believe [C.T.] and the
statements she made to you?” Paul’s counsel objected to the question, stating “[t]hat’s
for the fact finder to decide if the person is believable.” Counsel for the Department
33
rephrased her question as follows: “Do you find [C.T.]’s statements to be reliable?”
Paul’s counsel objected again on the same grounds but the trial court overruled the
objection. Dr. Arceneaux replied: “I do find her statements to be reliable.” Paul claims
that this testimony was inadmissible under Yount v. State, 872 S.W.2d 706, 712 (Tex.
Crim. App. 1993) (holding that “expert testimony that a particular witness is truthful is
inadmissible” under Texas Rule of Evidence 702). But cf. TEX. R. EVID. 704 (“Testimony
in the form of an opinion or inference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.”).
Assuming, without deciding, that the trial court erred by admitting this testimony,
we nevertheless conclude that Paul has not shown that he suffered harm as a result of
the error. In conducting a harm analysis, we review the entire record and require the
complaining party to demonstrate that the judgment turns on the particular evidence
admitted. In re D.O., 338 S.W.3d 29, 38 (Tex. App.—Eastland 2011, no pet.). Here,
the record is replete with other evidence—including testimony by Detective Ilse,
Denney, Diaz, Ponton, Enriquez, and Magana—supporting C.T.’s version of events.
This testimony therefore rendered duplicative Dr. Arceneaux’s testimony that C.T.’s
outcries were “reliable.” See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907
(Tex. 2004) (“[E]rror in the admission of testimony is deemed harmless and is waived if
the objecting party subsequently permits the same or similar evidence to be introduced
without objection.”); see also Castillo v. Tex. Dep’t of Family & Protective Servs., No.
03-05-00498-CV, 2006 Tex. App. LEXIS 6700, at *15 (Tex. App.—Austin July 28, 2006,
no pet.) (mem. op.) (concluding that the admission of evidence of child describing abuse
was harmless where “numerous witnesses testified about [the child’s] allegations”).
34
Paul contends that there is a “reasonable possibility that the jury could have
heavily relied on the opinion of the doctor that the child’s statements were truthful and
reliable,” especially given the fact that C.T. did not testify at trial. However, even if that
were true, a “reasonable possibility” that the admitted testimony was dispositive is not
enough to show harm. Paul bore the burden to show that the judgment in this case
“turned on” the admitted evidence. See In re W.E.C., 110 S.W.3d 231, 248 (Tex.
App.—Fort Worth 2003, no pet.) (“A successful challenge to evidentiary rulings usually
requires the complaining party to show that the judgment turns on the particular
evidence excluded or admitted.”). He failed to meet his burden here. Paul’s eighth
issue is overruled.
By his ninth issue, Paul contends that the trial court erred in admitting, over his
counsel’s objection, Magana’s testimony regarding C.T.’s outcries of abuse. He claims
that Magana’s testimony was “cumulative” of Dr. Arceneaux’s previous testimony. See
TEX. R. EVID. 403 (“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence.”). We disagree that the trial court erred in admitting the testimony.
The record reflects that C.T. made her initial outcries to Dr. Arceneaux while being
treated in Galveston; later, after C.T. had been transferred to a hospital in Corpus
Christi, she began therapy with Magana and made separate reports of the same events.
This testimony was probative, and we do not believe its probative value was
substantially outweighed by any unfair prejudice caused by the admission of the
testimony. See id. Moreover, although Paul objected to Dr. Arceneaux’s statement as
to the reliability of C.T.’s reports, he does not object generally to the doctor’s testimony
35
as to the reports of abuse made by C.T.22 Accordingly, any error in admitting Magana’s
testimony is harmless. See Volkswagen of Am., Inc., 159 S.W.3d at 907.
Paul additionally contends by his ninth issue that “cumulative error” deprived him
of a fair trial. The doctrine of cumulative error provides that a reviewing court may
reverse a lower-court judgment when the record shows a number of instances of error,
“no one instance being sufficient to call for a reversal, yet all the instances taken
together may do so.” Country Village Homes, Inc. v. Patterson, 236 S.W.3d 413, 449
(Tex. App.—Houston [1st Dist.] 2007, pet. granted, judgm’t vacated w.r.m.). To show
cumulative error, an appellant must show that, based on the record as a whole, but for
the alleged errors, the jury would have rendered a verdict favorable to it. See Town
East Ford Sales, Inc. v. Gray, 730 S.W.2d 796, 810 (Tex. App.—Dallas 1987, no writ).
Having reviewed the record, and even assuming that the trial court erred in admitting
the challenged testimony, we do not believe that the jury would have rendered a verdict
favorable to Paul but for those errors. We overrule Paul’s ninth issue.
By his tenth issue, Paul contends that the trial court erred in admitting
“unsupported speculative testimony” from Detective Ilse regarding whether C.T. was a
“targeted child” in the home based on his initial investigation of the case. See Coastal
Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)
(“Opinion testimony that is conclusory or speculative is not relevant evidence, because
it does not tend to make the existence of a material fact "more probable or less
22
The trial court admitted Dr. Arceneaux’s testimony regarding C.T.’s reports of abuse after
conducting a hearing outside the presence of the jury. See TEX. FAM. CODE ANN. § 104.006 (West 2008)
(“In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger
that describes alleged abuse against the child, without regard to whether the statement is otherwise
inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the
jury, the court finds that the time, content, and circumstances of the statement provide sufficient
indications of the statement's reliability and . . . the court determines that the use of the statement in lieu
of the child's testimony is necessary to protect the welfare of the child.”). Paul does not contend on
appeal that the trial court erred in making that determination.
36
probable.”). As noted, Detective Ilse testified that the difference in appearance of the
rooms of C.T. and K.T. was a “red flag” and that C.T. may have been “targeted”
because she, unlike K.T., is not related to Christina. Paul notes that subsequent
testimony indicated that the family had recently moved into their apartment and that
they had already picked out furnishings for C.T.’s room but had not yet purchased them.
Detective Ilse testified that he had investigated over one hundred child abuse
cases in 2011 alone and that he has received specialized training in recognizing
physical abuse of children. His comments regarding C.T.’s potential status as a
“targeted child” were based on that experience and were, therefore, not entirely
speculative. Even so, assuming but not deciding that the admission of this testimony
was error, we conclude that the error was harmless in light of the evidence that Paul
and Christina were responsible for physical abuse and medical neglect of C.T. The jury
would likely have reached the same conclusion regarding grounds for termination in the
absence of Detective Ilse’s testimony. See TEX. R. APP. P. 44.1(a). Paul’s tenth issue
is overruled.
E. Right to Fair Trial
Paul, by his eleventh issue, contends that he was deprived of his Sixth
Amendment right to a fair trial with an unbiased jury because the Department’s counsel
revealed during trial that she was acquainted with one of the jurors. Specifically, at the
end of the fourth day of trial, the Department’s counsel stated:
As I was doing jury selection, I thought there was someone that I might
know on the jury, but he didn’t say anything. I don’t know him that well.
He has been selected. While I was sitting here, my friend sends me a text
and asked me if [the juror] is on our jury because he posted on Facebook
he’s been on a jury for four days.
And so I thought that I needed to bring that to the Court’s attention. I don’t
have his phone number. I am friends on Facebook. Of course, I have not
37
posted anything on Facebook, but I felt that I needed to bring that to the
Court’s attention.
The following morning, the Department’s counsel informed the trial court that the entire
content of the juror’s Facebook post was: “Lunch alone at the Surf Club, fourth day of
jury duty on a high profile trial.” Counsel also read out five separate responses to the
Facebook post, none of which mentioned or alluded to anything about the case. At that
point, Alice’s counsel and Christina’s counsel each stated that they had no objection
and the trial court stated: “Yeah, I think that’s okay.” Paul’s attorney did not object. At
no time did any party object to participation of the juror, either on Sixth Amendment
grounds or on any other grounds.
To preserve a complaint for appellate review, a party must complain to the trial
court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mansions in
the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 317 (Tex. 2012). Even
constitutional complaints must be preserved. See In re L.M.I., 119 S.W.3d 707, 711
(Tex. 2003). The Texas Supreme Court has stated that, in the context of terminating
parental rights, “adhering to our preservation rules isn’t a mere technical nicety; the
interests at stake are too important to relax rules that serve a critical purpose.” In re
L.M.I., 119 S.W.3d 707, 708 (Tex. 2003). “Appellate review of potentially reversible
error never presented to a trial court would undermine the Legislature's dual intent to
ensure finality in these cases and expedite their resolution.” In re B.L.D., 113 S.W.3d
340, 353 (Tex. 2003); see In re J.F.C., 96 S.W.3d 256, 304 (Tex. 2002) (Schneider, J.,
dissenting) (“Texas’s preservation of error rules promote the child’s interest in a final
decision and thus placement in a safe and stable home, because they preclude
appellate courts from unduly prolonging a decision by appellate review of issues not
properly raised in the trial court.”). Here, Paul did not preserve his complaint by making
38
a timely request, objection, or motion; and he has not presented on appeal any reason
for this Court to deviate from the general rule requiring preservation of error. His
eleventh issue is overruled.
F. Jury Charge Error
Christina contends by her seventh issue that the trial court erred, depriving her of
her due process rights, “by deviating from the statutory language in Questions 10 and
11” of the jury charge. Question 10 of the jury charge asked whether Christina
“knowingly placed or knowingly allowed a child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child.” Question 11 asked
whether Christina “engaged in conduct or knowingly placed a child with persons who
engaged in conduct which endangers the physical or emotional well-being of the child.”
The jury answered “yes” to both questions. However, as Christina notes, these
questions do not precisely track the language of family code subsection 161.001(1). In
particular, the language of the statute makes clear that it must be the child subject to
termination—not any child—whose physical or emotional well-being is endangered in
order for this section to be satisfied. See TEX. FAM. CODE ANN. § 161.001(1)(D)
(permitting termination on grounds that the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child” (emphasis added)); id. § 161.001(1)(E) (permitting
termination on grounds that the parent “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” (emphasis added)). The jury charge therefore erroneously
allowed the jury to find that Christina violated parts (D) or (E) of subsection 161.001(1)
without specifically finding that it was C.T. whose physical or emotional well-being was
39
endangered. The Department argues that Christina failed to preserve this issue
because her counsel did not object to the jury charge at trial.
Even assuming that the jury charge was erroneous and that the error was
preserved, we conclude that any error would be harmless and therefore not reversible.
We have already concluded that the evidence was legally and factually sufficient for the
jury to have concluded that Christina violated part (L) of subsection 161.001(1). See id.
§ 161.001(1)(L)(ix) (permitting termination on grounds that the parent was convicted of
causing injury to a child under penal code section 22.04). Therefore, even if questions
10 and 11 of the jury charge perfectly mirrored the statute, and even if the jury
answered “no” to those questions as a result, the outcome of the proceedings would not
have been different. See TEX. R. APP. P. 44.1(a). Christina’s seventh issue is
overruled.
G. Ineffective Assistance of Counsel
By her eighth issue, Christina contends that her counsel provided ineffective
assistance at trial because he failed to object to questions 10 and 11 of the jury charge
for the reasons previously discussed in our analysis of Christina’s seventh issue.
In a suit filed by a governmental entity seeking termination of parental rights,
indigent parents who respond in opposition to the termination are entitled to the
appointment of counsel to represent their interests. TEX. FAM. CODE ANN. §
107.013(a)(1) (West Supp. 2011). This statutory right to the appointment of counsel
necessarily embodies the right to effective assistance of counsel at every critical stage
of the proceeding. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). To establish
ineffective assistance, the movant must show: (1) counsel’s performance was deficient;
and (2) there is a reasonable probability that, but for counsel’s deficient performance,
40
the result of the proceeding would have been different. Id. (citing Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984)).
We have already determined that, even if Christina preserved her issue
regarding jury charge questions 10 and 11, there is no reversible error. Accordingly,
she cannot show that, but for her counsel’s performance, the result of the proceeding
would have been different. See id. We overrule her eighth issue.
III. CONCLUSION
The judgment of the trial court is affirmed with respect to appellants Paul and
Christina. With respect to appellant Alice, we modify the trial court’s judgment to reflect
the jury’s finding that Alice violated parts (N) and (O) of family code subsection
161.001(1), rather than parts (C) and (O), and we affirm the judgment as modified. See
TEX. R. APP. P. 43.2(b).
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
27th day of December, 2012.
41