Opinion
NO. 03-17-00790-CV
03-01-2018
S. A., Jr., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 286,872-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING MEMORANDUM OPINION
After a jury trial, the trial court signed an order terminating the parental rights of both S.A., Jr. ("Samuel") and A.A. ("Angela") to their child, "David," who was about seventeen months old at the time of trial. Samuel appeals the termination order, contending that (1) the trial court abused its discretion in failing to grant a mistrial because of Angela's allegedly prejudicial telephone conversation in the presence of prospective jurors during the voir-dire phase of trial, and (2) the evidence was legally and factually insufficient to show that termination of his parental rights was in David's best interest. We affirm the trial court's order.
Angela is not a party to this appeal.
We will refer to the child, his family members, and the foster parents by aliases. See Tex. R. App. P. 9.8 (related to protection of minor's identity in cases involving termination of parental rights).
STANDARD OF REVIEW
A trial court may terminate a parent's rights to his child if clear and convincing evidence shows that (1) a parent has committed conduct that amounts to a statutory ground for termination and (2) termination of his rights would be in the child's best interest. Tex. Fam. Code § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal sufficiency of the evidence in such a case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id.; see In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). We "should not disregard undisputed facts that do not support" the determination, and "even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true." K.M.L., 443 S.W.3d at 113.
In evaluating factual sufficiency, we view the entire record and uphold the finding unless the disputed evidence that could not reasonably have been credited in favor of a finding is so significant that the factfinder could not reasonably have formed a firm belief or conviction that the Department's allegations were true. In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014) (quoting J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002)). We defer to the factfinder's reasonable determination on issues of credibility that involve an evaluation of appearance or demeanor. J.P.B., 180 S.W.3d at 573 (quoting Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)); see A.B., 437 S.W.3d at 503 (requiring reviewing court to defer to "factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses").
We review a trial court's ruling on a motion for mistrial for abuse of discretion, upholding the ruling if it is within the "zone of reasonable disagreement." Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
SUMMARY OF THE EVIDENCE
The testimony and other proffered evidence that might be relevant to the jury's best-interest finding was as follows:
• The affidavit of a Child Protective Services Investigator, which detailed an assault by Samuel on Angela during which he hit her while she was holding David and that, as a result, the infant "went flying out of her hands." Samuel was able to catch David before he hit the floor. In her live testimony, the investigator further elaborated: "He [Samuel] caught the baby, put him on the couch and went back to beating [Angela] again." Angela testified similarly to this incident. Samuel pleaded "no contest" to an assault charge arising from the incident.
• The investigator testified that Angela had told her that Samuel's domestic violence had been occurring for five of the six years the couple had been together, that Samuel had "poured hot boiling water" on Angela a few months before David was born, and that Samuel used and sold illegal drugs in the home.
• Samuel's criminal records indicate a conviction for possession of a controlled substance, less than one gram (methamphetamine), after he violated the terms of his deferred adjudication community supervision.
• Angela testified that Samuel used methamphetamines while they were living together, including a time they used the drug together when she was eight months pregnant with David.
• Samuel has a history of repeated arrests and convictions for assault with bodily injury on a family member, two of which occurred against Angela during the pendency of this case, and one of which involved actions in violation of a protective order.
• Samuel's extensive criminal-history records indicate that he has been in and out of jail for most of his adult life. Additionally, he had been in jail for a few weeks at the time of trial on a theft charge (according to his testimony, for "a little misdemeanor [in which] somebody said [he] took something[, but he] didn't take something").
• Samuel testified that he had continued to be around Angela during the pendency of this case—in violation of a protective order.
• Samuel testified that he had previously been wrongfully accused—"it never happened"—of kicking a pregnant woman in the stomach, leading to the loss of her fetus; his criminal-history records indicate that he pleaded "no contest" to the assault charge.
• With respect to why his parental rights should not be terminated, Samuel testified: "I take care of my son, you know. He was never in harm's way in the beginning. He was never in harm's way in the beginning. He was well-taken care of. I was there on doctor visits. I even got proof of all of those things. Even though they put it on a safety service plan I did everything on that plan, and I even got proof of it and I did everything." Samuel did not submit any documentation of completion of service-plan requirements as evidence at trial.
• A department caseworker testified that David has been in the same foster home since the Department removed him from his parents' possession, and that it "could be very detrimental to him to be taken away from the only caregivers [the foster family] he's had."
• The caseworker further testified that the foster family desires to adopt David.
• David's foster mother testified that she has known the child since he was about six weeks old, that he is "very, very smart," "loves to laugh and [is] a real ham," and is "just the light of our lives."
• The foster mother further testified that she and her husband want to adopt David, can protect him through his adulthood and even after he is an adult, and can raise him as their own child. She stated that she has taken David to all of his scheduled medical checkups and that he is healthy.
• The foster mother testified that she and her husband have sufficient income to be able to provide for David and her 13-year-old son from a previous marriage, of whom she has custody half of the time and whose relationship with David is good.
• David's guardian ad litem testified that David is happy and content in his foster placement, and that stability and permanence is very important for a child.
• The ad litem further testified that she did not believe that either parent has the ability to be even a "minimally adequate parent" for David and that it would be in David's best interest if both Samuel's and Angela's parental rights were terminated because they would not be able to meet his current or future emotional or physical needs and would put him in danger as well as due to the history of domestic violence and instability of the home.
DISCUSSION
Motion for mistrial
Samuel first contends that an "outburst" by Angela—in the form of one or more loud cell-phone conversations that she had outside the courtroom within hearing range of several of the prospective jurors —interfered with the normal proceedings of the trial, "tainted the jury pool," and interfered with the jury's verdict. See Coble, 330 S.W.3d at 292 ("An outburst from a bystander or witness 'which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows that a reasonable probability [exists] that the conduct interfered with the jury's verdict.'"). He contends that the impact of Angela's behavior was magnified by the fact that she was not just a witness but was a party, which—due to her status as a co-respondent—caused him to suffer "guilt by association." See Qually v. State, 206 S.W.3d 624, 637 (Tex. Crim. App. 2006) (per curiam) (noting that, to avoid "guilt by association," severance of one co-defendant's trial is appropriate when second co-defendant has criminal record that is admitted at trial and first co-defendant does not have criminal record); Stahl v. State, 749 S.W.2d 826, 829 n.2 (Tex. Crim. App. 1988) ("[T]he added visibility of a witness over a mere bystander will increase the impact of the outburst on the jury.").
The record shows that during the voir-dire phase of the proceedings, one of the prospective jurors—Number 38—indicated to the court and the parties' attorneys during individual voir dire that she had overheard Angela speaking on her cell phone very loudly before the proceedings began and then again during the lunch break, and that some of the other prospective jurors heard Angela as well. Juror No. 38 was not exactly sure what Angela was speaking about, but she appeared to be speaking to her grandmother and said things such as, "If Bell County calls, don't answer the phone" and "he's a black dude and I'm tired of this." When asked by Samuel's counsel how many other prospective jurors heard Angela's conversations, Juror No. 38 guessed "15 to 20." The trial court dismissed Juror No. 38 from the courtroom. After some discussion among the attorneys and the court at the bench, both Samuel's and Angela's attorneys objected and moved for a mistrial. The trial court overruled the objections and denied the motions.
Samuel is African-American and testified at the trial.
At that point, the court deputy brought in prospective juror number 31, who had also indicated that she heard Angela's conversations. The court conducted an individual voir dire of Juror No. 31, who stated that she heard Angela speaking about a "filing a lawsuit" and "somebody getting a job and maybe she would have a better chance." Juror No. 31 said that she felt it was "strange" for Angela to be speaking so in the presence of the jury panel and continued: "She was just real nonchalant about it, you know, like it was just no big deal. It made me feel like it's about a child. I wish she had a little more interest." Juror No. 31 indicated that several other jurors probably heard Angela, too, and that she could "probably pick them out." Neither party's attorney sought to strike Juror No. 31 from the jury.
The trial court then had the court deputy bring in two other prospective jurors identified by Juror No. 31 as having overheard Angela for individual voir dire. Those two prospective jurors (Nos. 21 and 3) indicated to the court and the parties' attorneys what they heard, none of which was in reference to Samuel or of any consequence. After these exchanges, the trial court indicated it would not be calling in any more of the prospective jurors for individual voir dire, and none of the parties objected. Neither Samuel's nor Angela's counsel requested to strike any of the questioned prospective jurors, and only one of them—No. 3—ended up seated on the jury. Additionally, neither attorney asked the court to instruct the jury to disregard Angela's comments. See Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (holding that party who fails to request instruction to disregard will have forfeited appellate review of class of events that could have been "cured" by such instruction); Villegas v. State, No. 04-07-00109—00111-CR, 2008 WL 441755, at *2 (Tex. App.—San Antonio Feb. 20, 2008, no pet.) (mem. op., not designated for publication) (noting that if curative instruction is not first requested before motion for mistrial is made, error is not preserved unless remarks at issue were so "emotionally inflammatory that the seated jurors were influenced to the prejudice of the defendant").
On this record, we cannot conclude that there is a reasonable probability that Angela's conduct interfered with the jury's verdict. See Coble, 330 S.W.3d at 292. None of the prospective jurors who were questioned indicated that they heard Angela say anything regarding Samuel, and only one of them ultimately sat as a jury member. Nothing that Angela said in front of the prospective jurors could be said to be "emotionally inflammatory" or prejudicial to Samuel such that an instruction to disregard could not have cured it, and Samuel's counsel did not seek an instruction to disregard. See Young, 137 S.W.3d at 70. Furthermore, the trial court's charge generally instructed the jury: "Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom." Both Samuel and Angela testified at trial, and the jury was able to see their respective demeanors and make credibility determinations to inform its findings. Finally, there was substantial evidence supporting termination of Samuel's parental rights (see infra), and in light of such evidence, it is not reasonable to infer that Angela's phone conversations had an undue influence on or interfered with the jury's verdict as to Samuel. On this record, we hold that the trial court's denial of Samuel's motion for mistrial was well within the "zone of reasonable disagreement." See id.
Best-interest finding
We have reviewed the record, the relevant portions of which are summarized above. We must defer to the jury's evaluation of the witnesses' credibility and its resolution of any evidentiary conflicts. See A.B., 437 S.W.3d at 503; J.P.B., 180 S.W.3d at 573. A factfinder's best-interest finding is reviewed in light of the non-exhaustive list of considerations set out in Holley v. Adams: the child's wishes, if the child is of an appropriate age to express such wishes; the child's present and future emotional and physical needs; present and future emotional and physical danger to the child; the parenting abilities of the individuals seeking custody; programs available to assist those people to promote the child's best interest; plans for the child by the people or agency seeking custody; the stability of the home or proposed placement; the parent's acts or omissions that may indicate that the parent-child relationship is improper; and any excuse for the parent's acts or omissions. 544 S.W.2d 367, 371-72 (Tex. 1976).
The State is not required to prove all of the Holley factors "as a condition precedent to parental termination," and a lack of evidence about some does not "preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence was undisputed that the parental relationship endangered the safety of the child." C.H., 89 S.W.3d at 27. Evidence presented to satisfy a predicate statutory-ground finding may also be probative of the child's best interest. Id. at 28. Here, Samuel does not contest the evidentiary sufficiency of the two statutory-grounds supporting termination alleged by the State: (1) that he engaged in conduct or knowingly placed David with persons who engaged in conduct that endangered David's physical or emotional well-being and (2) that he knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered David's physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(E), (D).
Most of the Holley factors are implicated in this case. Although David was too young to articulate his desires, the court could consider evidence of his relationship with the foster parents, who planned to adopt him. See L.Z. v. Texas Dep't of Family & Protective Servs., No. 03-12-00113-CV, 2012 WL 3629435, at *10 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.). A factfinder may consider that a child has bonded with current placement, is well cared for by them, and has spent minimal time with a parent. See id.
The need for permanence is the paramount consideration when determining a child's present and future physical and emotional needs. Robert T. v. Texas Dep't of Family & Protective Servs., No. 03-12-00061-CV, 2013 WL 812116, at *12 (Tex. App.—Austin Mar. 1, 2013, no pet.) (mem. op.). Although a parent's rights may not be terminated merely because the child might be better off living elsewhere, "a factfinder can consider that a child's best interest may be served by termination of parental rights so that adoption may occur rather than the impermanent foster-care arrangement that would result if termination were not ordered." Id. A parent's current and future incarceration is relevant to his ability to meet the child's present and future physical and emotional needs, and the parent's incarceration at the time of trial "makes his future uncertain." In re M.D.S., 1 S.W.3d 190, 200 (Tex. App.—Amarillo 1999, no pet.); see In re M.A.N.Z., No. 04-17-00381-CV, 2017 WL 6032539, at *7 (Tex. App.—San Antonio Dec. 6, 2017, no pet. h.) (mem. op.) (noting that court may conclude that parent's plan for child to remain where he is "until his uncertain release [from prison] fails to comply with the ultimate goal of providing [the child] with a stable and permanent home").
A factfinder may infer that past conduct endangering a child's well-being may recur in the future if the child is returned to the parent, Robert T., 2013 WL 812116, at *12, and may infer that a parent who did not provide documentation for completing a service did not complete that service, see In re A.L.W., No. 01-14-00805-CV, 2015 WL 4262754, at *10 (Tex. App.—Houston [1st Dist.] July 14, 2015, no pet.) (mem. op.). A factfinder may also give "great weight" to the "significant factor" of drug-related conduct, Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ), and a parent's repeated incarcerations may reasonably suggest that his "parenting skills are seriously suspect." In re A.W., No. 06-07-00118-CV, 2008 WL 360825, at *3 (Tex. App.—Texarkana Feb. 12, 2008, no pet.) (mem. op.).
In sum, the evidence showed that Samuel has an extensive criminal history, some of which was drug-related, and much of which involved domestic violence, one time potentially physically endangering David; was incarcerated during some of the pendency of the proceedings below (including at the time of trial) and has been in and out of jail for much of his adult life; violated a protective order by continuing to have contact with Angela during the pendency of these proceedings; and failed to provide documentation of completing court-ordered services. Based on this record, the trial court could have reasonably concluded that Samuel, when released from his latest jail term, would continue to expose David to emotional and physical danger; would be unable to meet David's emotional and physical needs now and in the future; and had inadequate parenting skills and little motivation in availing himself of resources to improve them. The evidence further showed that David was doing well in his foster family, with whom he had lived since he was an infant, and that the foster family planned to adopt him. The ad litem opined that placement with the foster family and termination of Samuel's parental rights were in David's best interest. Under both the legal- and factual-sufficiency standards, we cannot conclude that the evidence was such that the district court could not have reached a firm belief or conviction that termination was in David's best interest. See K.M.L., 443 S.W.3d at 112-13; A.B., 437 S.W.3d at 502-03. We therefore overrule Samuel's second issue on appeal.
CONCLUSION
Having overruled both of Samuel's issues on appeal, we affirm the district court's order terminating his parental rights.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: March 1, 2018