Opinion
NO. 03-15-00811-CV
04-21-2016
E. A. and R. A., Appellants v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 19286, HONORABLE JOHN GAUNTT, JUDGE PRESIDINGMEMORANDUM OPINION
A jury determined that father E.A. and mother R.A. had knowingly allowed their two-year-old son, Alex, to remain in conditions or surroundings that endangered his well-being, engaged in conduct that endangered Alex's well-being, and failed to comply with a court order establishing necessary actions to regain custody and that termination of their parental rights was in Alex's best interest.See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (2). The jury also found that R.A. suffered from a mental or emotional illness or mental deficiency that rendered her unable to provide for Alex's needs and that would likely continue to render her unfit until Alex was at least eighteen years old. See id. § 161.003. The trial court signed an order terminating R.A.'s and E.A.'s parental rights, and both parents appealed. We affirm the order of termination.
We will refer to the child by a pseudonym and to the adults involved by their initials. See Tex. R. App. P. 9.8.
Factual Background
In July 2014, the Department of Family and Protective Services filed a petition seeking conservatorship of Alex, who was ten months old at the time, due to a report of an incident of domestic violence between R.A. and E.A. in which R.A. went to a neighbor's house naked and bleeding from a head wound; Alex was in the home during the incident. E.A. was uncooperative and denied injuring R.A. R.A. initially stated she had been beaten by E.A. but later recanted those accusations. A Department caseworker spoke to R.A. and was concerned that she was not mentally able to care for a child: R.A. had difficulty speaking and answering questions, she had "a blank expression on her face and her eyes would have a very glossy look just staring out into the abyss," and she had to be told to feed Alex, change his diaper, or put him down to sleep. R.A. has a history of mental illness and repeated hospitalizations. Throughout the case, appellants were uncooperative with caseworkers and experts who were supposed to provide services, and E.A. did not pay all of his court-ordered child support.
Dr. James Shinder conducted psychological evaluations of appellants. He testified: that E.A. was unwilling to acknowledge significant personal problems and was determined to present himself favorably; that his unwillingness to reveal areas of concern made him a poor candidate for treatment; that "[t]he missing information was of greater concern than the information he provided"; that E.A. was suspicious and distrustful and would likely resist efforts to assist him; that he had paranoid and narcissistic personality traits and a false sense of superiority; and that he was "not a suitable independent parenting resource." Dr. Shinder testified that R.A. had severe psychiatric problems, a low IQ, and characteristics of paranoid schizophrenia. R.A. initially told Dr. Shinder that E.A. had abused her but then recanted when E.A. was with her. Dr. Shinder believed that appellants' relationship was "dysfunctional, if not toxic." He was also concerned that R.A. had stopped taking medication prescribed to her during one of her hospitalizations.
A Department caseworker testified that Alex cried and screamed during visitations with appellants and that E.A. sometimes behaved inappropriately during the visits. Further, Alex's behavior changed after his visitations, and for several nights following a visitation, he needed consoling in the middle of the night and could not sleep alone. Aside from those changes following visitations, Alex did not show signs of distress in his foster home, where he was active, happy, and friendly.
Department witnesses testified that Alex was happy and well-adjusted in his foster home and that his foster parents hoped to adopt him if appellants' rights were terminated. Alex was developmentally delayed when the Department took custody of him, and he was being given early childhood intervention services. Although E.A.'s mother, M.G., who lives in New Jersey, was approved as a foster placement by an interstate study, the New Jersey caseworker and Department caseworkers were concerned that M.G. might not be protective. M.G. reported that she does not believe that E.A. had hurt R.A., and one Department caseworker testified, "[W]e don't know if we give her [Alex] that she just won't give him back to the father and allow for whatever to go on." Alex's Court-Appointed Special Advocate (CASA) testified that she asked M.G. whether she would allow E.A. to visit Alex, and M.G. said, "Of course. He's my son." Asked whether she would leave Alex alone with E.A., M.G. told the CASA, "Why wouldn't I? He's his father." However, M.G. testified at trial that she would abide by the provisions of a court order related to Alex.
Discussion
Appellants raise three issues on appeal. First, they assert that the trial court erred in admitting evidence related to parenting assessment tools developed by Dr. Shinder that they contend were invalid. Second, they assert that the evidence was insufficient to support the determination that they had failed to comply with a court order that established actions necessary to regain custody of Alex. See id. § 161.001(b)(1)(O). Finally, they challenge the trial court's naming of the Department as permanent managing conservator, arguing that the court improperly assumed the role of factfinder and that the evidence was legally and factually insufficient to support that decision.
Because appellants only challenge the sufficiency of the evidence supporting one of the grounds for termination, we need not address their second issue. See In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014) (if clear and convincing evidence establishes that parent committed any one statutory ground for termination and that termination is in child's best interest, court may terminate parent's rights); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section [161.001(b)(1)] is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest."). Even if the evidence was not sufficient to support termination under section 161.001(b)(1)(O), without a challenge to the evidence supporting the other grounds, the jury's verdict and trial court's order of termination must stand. See In re E.A.G., 373 S.W.3d 129, 145 (Tex. App.—San Antonio 2012, pet. denied) (mother challenged witness's qualification to testify as expert, but witness's testimony went only to best interest, and mother did not challenge that finding on appeal; court therefore overruled issues without determining whether witness was qualified as expert).
Similarly, although appellants assert that Dr. Shinder's parenting assessment tool should not have been admitted and was likely "a strong factor in the jury's decision to terminate" appellants' rights, they do not address the other evidence introduced to establish termination under section 161.001(b)(1)(D) and (E), the evidence supporting termination of R.A.'s rights under section 161.003, or the evidence supporting a determination that termination was in Alex's best interest. Dr. Shinder testified about appellants' psychological evaluations, testimony that was unrelated to his use of his parenting assessment tool, and the Department also presented testimony from a police officer who responded to the domestic violence report that initiated the Department's involvement with the family, a nurse who treated R.A. after the incident, three Department caseworkers who worked with the family, and Alex's CASA. Even if the parenting assessment tool and Dr. Shinder's testimony related to that tool were improperly admitted, appellants have not shown or even asserted that the remaining evidence was insufficient to support findings that termination was proper under sections 161.001(b)(1)(D), (E), or 161.003 or that termination was in Alex's best interest. We thus need not address the merits of appellants' first issue.
Dr. Shinder testified that he created his own parenting assessment questionnaire, using "various testing instruments for parenting [that] were placed on the market," as well as "collect[ing] some of the information and format I had developed myself." He said that most of the assessment is factual information about parenting skills, such as normal body temperature and "standard information" about other "health-related developmental information,"and that there is "a factual answer" for each question. Dr. Shinder testified that he had not published the general knowledge portion of his assessment for peer review, saying, "It was a survey of the individual's factual knowledge. There is, in my opinion, no need. I will go back to my example on body temperature. I don't know any need to peer review what is normal body temperature." Dr. Shinder decided on the questions based on "frequent recurring difficulty that resulted in parents either bringing their children into emergency rooms or other areas for medical treatment or CPS referrals." He testified that the questions and his interpretations of them were "definitely objective" "[b]ecause either a person knows the factual information [or] what to do in a given situation or they don't," although appellants questioned whether some of the questions asked for information that could be affected by a parent's religious or cultural background. He was then asked about a "potential rate of error," and said, "All I'm looking at when I'm interpreting the answers is accurate, inaccurate, or potentially dangerous. Sometimes I have people give me responses that are almost frightening what they would do in a given situation. . . . All I'm looking at: Is that a possible solution that will solve the problem, is it neutral, or could it be dangerous?" Dr. Shinder was asked if his approach to parenting assessments was "generally accepted by the scientific community," and he answered, "It is a basic question-and-answer format, and I consider that to be acceptable. You know, as I said, when I first started to use this, there was nothing else available. Since then there's more that's been out on the market, but it's all essentially the same."
As for the decision to name the Department as permanent managing conservator, conservatorship determinations are reviewed for an abuse of discretion and will be reversed only if the decision is arbitrary and unreasonable.In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Further, there is no presumption favoring a grandparent over other non-parents in determining conservatorship. A.C., 394 S.W.3d at 644; see Tex. Fam. Code § 161.207 (if parental rights are terminated, court shall appoint "suitable, competent adult," Department, or licensed child-placement agency as managing conservator); In re J.R.P., 55 S.W.3d 147, 152 (Tex. App.—Corpus Christi 2001, pet. denied) (section 161.207 "does not specifically include grandparents and allows the trial court to balance the best interests of the children in appointing managing conservators").
The primary concern in making a conservatorship decision is the child's best interest, which requires consideration of the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Once we overrule a parent's challenge to a termination order, "the trial court's appointment of the Department as sole managing conservator may be considered a 'consequence of the termination pursuant to Family Code section 161.207.'" In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *12 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.) (quoting In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)); see In re N.E., No. 05-15-00361-CV, 2015 WL 5244334, at *14 (Tex. App.—Dallas Sept. 8, 2015, pet. denied) (mem. op.) (after challenge to termination is overruled, appointment of Department as sole managing conservator may be considered consequence of termination); In re C.L.B., No. 10-13-00203-CV, 2014 WL 702798, at *13 (Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.) (same).
The order terminating appellants' parental rights "divest[ed]" appellants of their legal rights and duties related to Alex, see Tex. Fam. Code § 161.206(b), and a challenge asserting that M.G. should have been appointed conservator must be raised by M.G. herself.See K.C. v. Texas Dep't of Family & Protective Servs., No. 03-11-00354-CV, 2012 WL 3055484, at *2 (Tex. App.—Austin July 26, 2012, no pet.) (mem. op.) ("appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others," and father did not show he was harmed by omission of jury question asking if sister should be appointed conservator; "We are also not persuaded that [father] can raise this issue when [sister] has not raised the complaint herself."); see also In re E.N.J., No. 06-15-00019-CV, 2015 WL 5917726, at *2 (Tex. App.—Texarkana Aug. 13, 2015, no pet.) (mem. op.) (applying same reasoning as K.C.); In re L.K., No. 12-11-00169-CV, 2012 WL 6674417, at *7 (Tex. App.—Tyler Dec. 20, 2012, pet. denied) (mem. op.) (same).
M.G. did not intervene or attempt to intervene in this case. --------
Further, the record does not show that appellants asked the trial court to submit a jury question related to conservatorship. See K.C., 2012 WL 3055484, at *2 ("party must complain to the trial court of the omission of a jury question in some fashion when the charge is prepared in order to preserve the complaint for appeal"). Even if the issue had been preserved, aside from asking the jury the "controlling question" of whether appellants' parental rights should have been terminated, the trial court was not required to submit questions concerning conservatorship. See Ayala v. Texas Dep't of Family & Protective Servs., No. 03-09-00121-CV, 2010 WL 3672351, at *4 (Tex. App.—Austin Sept. 16, 2010, no pet.) (mem. op.) (citing Texas Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)). On this record, we would not be able to hold that the trial court abused its discretion in deciding not to name M.G. as conservator. See J.A.J., 243 S.W.3d at 616. We overrule appellants' third issue on appeal.
Conclusion
We affirm the trial court's order of termination.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: April 21, 2016