Opinion
No. 14-03-01016-CV.
Opinion filed March 2, 2004.
On Appeal from the 306th District Court, Galveston County, Texas, Trial Court Cause No. 02CP0088.
Affirmed.
Panel consists of Justices YATES, HUDSON, and FOWLER.
MEMORANDUM OPINION
Appellee Texas Department of Protective and Regulatory Services ("DPRS") sought termination of appellant Jamie's parental rights to her daughter, A.J.H. After a bench trial, the court found termination would be in the child's best interest. In her first four issues on appeal, Jamie contends (1) the evidence is legally and factually insufficient to support the trial court's findings that termination was appropriate under the statutory grounds justifying termination enumerated in sections 161.001(1)(D), 161.001(1)(E), and 161.001(1)(O) of the Family Code; (2) the evidence is legally and factually insufficient to support the trial court's finding that Jamie failed to comply with the agreed — to family service plan; and (3) the evidence is legally and factually insufficient to support the finding that termination of Jamie's parental rights is in the best interest of A.J.H. In her remaining four issues, Jamie raises a laundry list of other complaints, contending (1) DPRS owed a duty to Jamie to make reasonable efforts to assist in reunification efforts; (2) trial testimony from a DPRS caseworker regarding statements made by A.J.H. to a forensic examiner in a live, closed-circuit videotaped interview should have been excluded as inadmissible hearsay; (3) Jamie's trial counsel was ineffective; and (4) statements made by Jamie to the DPRS caseworker during an interview at a police department are inadmissible because Jamie was not given Miranda warnings. We affirm.
The record is unclear as to the name of A.J.H.'s mother. She testified that her name is Jane. Other documents show her name as Jamie, Jaime, and Janie. We refer to her as Jamie because that is the name used in appellant's brief.
I. Factual and Procedural Background
In September of 2002, DPRS gained temporary managing conservatorship of A.J.H. after a friend of Jamie's, Anita, notified DPRS she would no longer care for A.J.H. Jamie had left A.J.H. in Anita's care in August of 2002. A.J.H. was then placed in foster care where she remains. A.J.H., nine years old at the time the events of this case began, reported that she had been sexually abused by at least three male individuals. Although the record is unclear as to whether Jamie knew about all of the instances of abuse, Jamie confirmed that she knew of some of the abuse, as well as the sexual abuse of A.J.H. by a fourth male. Jamie had reported none of these instances of abuse to the police or other appropriate authorities. On October 21, 2002, Jamie agreed to a family service plan requiring her to do the following by April 2003: (1) complete a drug assessment and submit to random urinalysis for drug screening and enter an in-patient drug program if she tested positive; (2) obtain a psychological evaluation and follow all recommendations; (3) view a videotape regarding sexual abuse victims and write a report for the court; (4) complete parenting courses; and (5) learn how to prepare a family budget, obtain or seek employment, and obtain or seek to establish a residence.
At a status hearing on November 14, 2002, the trial court found that Jamie had not reviewed the family service plan and again ordered that she enter an in-patient drug treatment facility and follow all recommendations ensuing from that treatment. The court set the initial permanency hearing for March 11, 2003. Jamie was served on March 17, 2003, in the Galveston County jail where she was incarcerated. At the permanency hearing on March 17, the trial court found that Jamie had not complied with the family service plan and again ordered her to comply with the plan's requirements for reunification. The trial court's Permanency Hearing Order of July 17, 2003, stated that Jamie had not demonstrated compliance with the family service plan and stated that the goal for A.J.H. was adoption.
At the conclusion of the termination hearing on August 25, 2003, the court found by clear and convincing evidence that Jamie had (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child and (2) 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. The court also found by clear and convincing evidence that Jamie failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of DPRS for not less than nine months as a result of the child's removal from the parent under Chapter 262 of the Family Code for the abuse or neglect of the child. See Tex. Fam. Code Ann. §§ 161.001(1)(D), 161.001(1)(E), 161.001(1)(O) (Vernon 2002). The court further found by clear and convincing evidence that termination of the parent-child relationship between Jamie and A.J.H. was in the best interest of A.J.H.
The parental rights of A.J.H.'s father were also terminated at trial, but he is not a party to this appeal.
II. Standard of Review
Parental rights can be terminated only by a showing of clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon 2002). Clear and convincing evidence is 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 proved. Id. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
The Texas Supreme Court has recently addressed the appropriate standards for appellate courts reviewing the legal and factual sufficiency of findings made under this heightened burden of proof. See In re J.F.C., 96 S.W.3d at 265-66 (defining the standard of review for legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (defining the standard of review for factual sufficiency). When reviewing legal sufficiency of the evidence we look at all the evidence in the light most favorable to the finding to determine whether the fact-finder could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 265-66; In re C.H., 89 S.W.3d at 25. We must assume the fact-finder resolved disputed facts in favor of its findings, if a reasonable fact-finder could do so. In re J.F.C., 96 S.W.3d at 266. We disregard all evidence that a reasonable fact-finder could have disbelieved or found incredible. Id. But we do not disregard undisputed facts that do not support the finding. Id.
When reviewing factual sufficiency of the evidence, we review the evidence to determine whether the fact-finder could reasonably form a firm belief or conviction about the truth of the State's allegations. Id. We look at the disputed evidence and adjudge whether a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. Id. The evidence is factually insufficient if, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction. Id.
III. Legal and Factual Sufficiency of Evidence
A. Statutory Grounds Justifying Termination
To terminate parental rights, a trial court must find by clear and convincing evidence that (1) termination is in the child's best interest and (2) the parent committed one or more of the acts specifically named in the Family Code as grounds for termination. See TEX. FAM. CODE ANN. § 161.001 (Vernon 2002). In this case, the trial court found that Jamie had committed the acts named in sections 161.001(1)(D), 161.001(1)(E), and 161.001(1)(O) of the Family Code. Jamie challenges the legal and factual sufficiency of these findings of the trial court.
The term "endanger," as used in sections 161.001(1)(D) and 161.001(1)(E), means to jeopardize or expose the child to loss or injury. In the Interest of J.I.T.P., 99 S.W.3d 841, 844 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (citation omitted). "Endangerment can be exhibited through actions and omissions. Further, the endangering acts need not be directed at or cause actual injury to the child." Id. (citations omitted). The record in this case reflects that the trial court properly found that Jamie's conduct — both her actions and omissions — endangered A.J.H., justifying termination of her parental rights under sections 161.001(1)(D) and 161.001(1)(E) of the Family Code.
Jamie admitted to using marijuana and cocaine off and on for over 20 years. Prior to leaving A.J.H. with Anita in August of 2002, she had been convicted of the offense of possession of marijuana in December of 1998, and in June of 2000, she was found guilty of the offense of resisting arrest, search or transportation. After leaving A.J.H. with Anita and after she agreed to a family service plan in October of 2002, Jamie continued committing criminal acts. She pleaded guilty to two offenses of prostitution, one of which occurred in November of 2002, the other in January of 2003. Jamie was also charged with possession of cocaine in March of 2003. Jamie was incarcerated from approximately November of 2002 through April of 2003. As the record further reflects, Jamie's continued drug use exposed her daughter to households and persons who abused her.
Aside from her drug use and incarceration, Jamie demonstrated a complete failure to prevent and understand the harm inflicted on A.J.H. by various male companions with whom Jamie brought A.J.H. into contact. In an interview between A.J.H. and a DPRS caseworker and in a videotaped interview with a forensic examiner, which the DPRS caseworker viewed by way of a live, closed-circuit television, A.J.H. reported sexual abuse by at least three different males that she and her mother lived with temporarily or visited. Jamie and A.J.H. were living with one of the perpetrators and his family when the most recent incidences of abuse occurred. Even after A.J.H. told her mother about the abuse, they remained in the household for another four to five days. After leaving that residence, Jamie and A.J.H. lived in Jamie's truck for a while, before Jamie asked Anita to take care of A.J.H. This, however, again reflects Jamie's poor judgment about leaving her child with persons who might hurt her. In May of 2000, Anita abused A.J.H. by hitting her and causing bruises on her face and head, reportedly when she was intoxicated. Anita was arrested and charged in connection with that incident.
In response to the allegations of sexual abuse, Jamie gave inconsistent testimony regarding whether A.J.H. told her about all of the instances of abuse. In any event, the record conclusively reflects that she knew of most of the abuse, and did not report any abuse to the police or other appropriate authorities. Jamie actually remarked to the caseworker that the most recent incidence of sexual abuse "wasn't so bad." She also reported one instance of abuse by a fourth male to DPRS that A.J.H. did not disclose. Jamie demonstrated a lack of awareness of both the conduct being perpetrated on her daughter, as well as the impact that it had on A.J.H.
As is evident by the fact that Jamie and A.J.H. resided in various households and with men who abused A.J.H., Jamie did not have a permanent residence. She admitted at the termination hearing that she had not had a residence of her own in over two years. In fact, she had lived in at least three different households of friends or acquaintances in the 2001 to 2003 time frame. She admitted that she was at the mercy of the people who let her (and A.J.H. while she resided with her mother) live in their homes. Jamie began working only two days before the termination hearing as an electrical helper. Prior to that job, she testified that she had been unable to work for over two years because of a chronic liver disease from which she suffers. Thus, despite the court's family service plan's requirements, Jamie had not obtained a residence by the time of the termination hearing and had only been employed for two days.
Probably the most telling instance of Jamie's behavior that endangered A.J.H. and also violated the family service plan, was her continued drug use, even after she agreed to submit to drug testing and to undergo in-patient treatment. Although she underwent treatment on two occasions while DPRS had temporary managing conservatorship of A.J.H., she did not remain in either program because her urine samples came back positive for drugs. At least one of those drug tests was conducted as late as June of 2003. The other test, which came back positive, was conducted in October of 2002 after the court's status hearing but before her incarceration for prostitution and possession of marijuana. Thus, Jamie was using illegal drugs prior to her arrests in the late fall of 2002 and even after serving time for drug possession and two offenses of prostitution. On at least one other occasion, Jamie did not take a scheduled urinalysis, as required by the trial court for her to visit A.J.H., and thus, the test was counted as positive pursuant to the trial court's policy.
In addition to her failure to comply with the family service plan's requirements that she be drug free, undergo in-patient drug rehabilitation, and obtain a residence, Jamie also failed to comply with other requirements of the family service plan. The undisputed evidence reflects that Jamie did not obtain a psychological evaluation, did not complete parenting courses, and did not write a report discussing the sexual abuse victims videotape she was required to watch. After considering the entire record, we hold that there is legally and factually sufficient evidence to support the trial court's findings that Jamie committed the acts enumerated in sections 161.001(1)(D), 161.001(1)(E), and 161.001(1)(O) of the Family Code.
B. Best Interest of the Child
There is a strong presumption that preserving the child-parent relationship is in the best interest of the child. See TEX. FAM. CODE ANN. §§ 153.131(b), 153.191, 153.252 (Vernon 2002). It is DPRS's burden to rebut this presumption. In re J.I.T.P., 99 S.W.3d at 846 (citation omitted). Factors that a court should consider when determining the best interest of a child include (1) the child's desires; (2) the child's emotional and physical needs now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals or by the agency seeking custody; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (noting this is a nonexclusive list of factors to consider in determining the child's best interest); see also TEX. FAM. CODE ANN. § 263.307 (Vernon 2002) (listing thirteen factors for determining a parent's willingness and ability to provide a safe environment).
In this case, the same evidence we held was legally and factually sufficient to support the trial court's findings that termination was appropriate under the above-referenced statutory grounds also supports the trial court's finding that termination of Jamie's parental rights is in the best interest of A.J.H. See In the Interest of M.G.D. and B.L.D., 108 S.W.3d 508, 511 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) (stating that proof of statutory grounds justifying termination can serve as evidence of a child's best interest) (citing In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)). The abuse A.J.H. was repeatedly exposed to is a factor under Holley. See Green v. Tex. Dep't of Protective Regulatory Servs., 25 S.W.3d 213, 221 (Tex. App.-El Paso 2000, no pet.) ("[S]exual abuse is a significant factor in determining whether termination is in the best interest of the child."). Furthermore, despite agreeing to a family service plan, Jamie did not comply with its terms. Notably, she did not complete parenting courses, did not obtain a psychological evaluation, did not remain in a drug rehabilitation program, and did not obtain a residence for herself and her daughter. These instances of noncompliance, coupled with her extensive history of drug use and lack of a residence, reflect Jamie is unable to provide her daughter with a stable environment. See TEX. FAM. CODE ANN. §§ 263.307(b)(10)-(12) (Vernon 2002). Jamie's long-term drug use and apparent refusal or inability to become drug free is a factor weighing strongly in favor of the trial court's finding that termination of her parental rights is in the best interest of A.J.H. See id. § 263.307(b)(8). Nor does Jamie have a support network of family to assist her. See id. § 263.307(b)(13).
In two pages of her brief, Jamie contends that the evidence is legally and factually insufficient to support the trial court's findings regarding termination, in part because of the absence of expert testimony. There is no separate heading for this point of error, and we will not address it as a separate issue. See TEX. R. APP. P. 38.1(e) ("The brief must state concisely all issues or points presented for review."). In any event, Jamie's argument fails because expert testimony is not required to prove that termination of parental rights is in the best interest of a child. See In the Interest of R.M., No. 14-02-00221-CV, 2003 WL 253291, at *6 n. 4 (Tex. App.-Houston [14th Dist.] Feb. 6, 2003, no pet.) (not designated for publication) ("Appellant . . . does not provide any authority that the testimony of a mental health professional, therapist, or other expert is required to prove that termination of parental rights is in the best interest of the child. The trial court, as the trier of fact, was entitled to determine the credibility and weight to give the caseworker's testimony.") (citing Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st Dist.] 1997, pet. denied)). Furthermore, Jamie did not object to the testimony of the two DPRS employees on the basis that they were not qualified as experts to render their opinions about whether termination of Jamie's parental rights would be in the best interest of A.J.H. Accordingly, this complaint was waived because it was not raised in the trial court below. See TEX. R. APP. P. 33.1(a).
Although A.J.H. expressed love for her mother and a desire to be with her mother, she also expressed satisfaction with her foster care homes, has done well in school, was proud of her perfect attendance record at school — a feat she was able to accomplish for the first time due to being in a stable home — and she looked forward to attending summer camp. Evidence was presented at the termination hearing that A.J.H. had flourished in her foster care homes and likely would be adopted. Finding that a reasonable fact-finder could form a firm belief or conviction that termination was in the best interest of the child, we affirm the trial court's findings. Thus, we overrule Jamie's first, second, third, and fourth issues.
Jamie's fifth issue is "WHETHER TDPRS OWED A DUTY TO MAKE REASONABLE EFFORTS TO ASSIST IN THE REUNIFICATION EFFORTS." We find it unnecessary to address this argument separate from our discussion of the legal and factual sufficiency of the evidence to support the trial court's findings that termination of Jamie's parental rights is in the best interest of A.J.H. As we have held, the evidence is factually and legally sufficient to support the trial court's findings that termination is appropriate under the three statutory grounds discussed in this opinion and because it is in the best interest of A.J.H. Although Jamie contends that DPRS did not do enough to assist her in her reunification efforts, and in particular, after Jamie was released from jail in the late spring of 2003, the record does not support her contention. To the extent Jamie found it more difficult to comply with the agreed-upon family service plan while she was incarcerated, that situation was a result of her actions. Moreover, despite being given opportunities to comply with the plan's requirements with respect to drug testing, Jamie's urine samples came back positive for drugs. All in all, when given opportunities to comply with the family service plan, Jamie simply did not so. Furthermore, section 161.001 of the Family Code does not require a trial court to make a finding that DPRS made efforts to reunite a family. See Jones v. Dallas County Child Welfare Unit, 761 S.W.2d 103, 109 (Tex. App.-Dallas 1988, writ denied) (stating that the Family Code does not require any efforts toward reunification; "[t]he plaintiff in an involuntary termination case is not required to make any attempt to help the parents or to ensure that the children can return home") (citations omitted).
IV. Other Issues Presented
In her sixth issue, Jamie complains that the trial court should not have allowed the DPRS caseworker to testify at the termination hearing about A.J.H.'s videotaped statements to a forensic examiner regarding abuse committed against her. The caseworker contemporaneously watched the interview and testified as to the circumstances under which the interview was done. Under section 104.006 of the Family Code, the hearsay statements of a child under the age of 12 describing sexual abuse against her is admissible if (1) the court finds the time, content, and circumstances of the statement provide sufficient indicia of the statement's reliability, and (2) the child testifies or is available to testify at the proceedings in court or in any other manner provided by law, or 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. See In re K.L., 91 S.W.3d 1, 15 (Tex. App.-Fort Worth 2002, no pet.). In this case, the trial court implicitly found that the testimony was necessary to protect A.J.H.'s well being. See id., 91 S.W.3d at 17 (stating that "only if a child is unavailable to testify is the trial court required to make a finding that admission of the witness' statement in lieu of the child's testimony is necessary to protect the child's welfare," and noting that record evidence supported the trial court's implied finding of the reliability of the child's statements). In overruling Jamie's objection to the admission of the testimony, the court noted the conditions under which the statements were made, and also noted that Jamie could have admitted the tape into evidence, but did not do so. The hearsay statements were admissible in this case under section 104.006 of the Family Code. In any event, even if the statements were not admissible, Jamie failed to show how she was harmed by their admission. See TEX. R. APP. P. 44.1(a). Thus, we overrule Jamie's sixth issue.
In her seventh issue, Jamie complains that she received ineffective assistance of counsel at the termination proceeding. Jamie has waived this complaint by failing to properly brief it. She correctly cites authority for the proposition that parents are entitled to effective counsel at a termination proceeding. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). But, she otherwise fails to properly develop this argument. An appellant has a duty to cite specific legal authority and to provide legal argument based upon that authority. See TEX. R. APP. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996). Thus, Jamie has not preserved review on this point of error. See TEX. R. APP. P. 38.1(h); Smith v. State, 683 S.W.2d 393, 410 (Tex.Crim.App. 1984) (holding that nothing was preserved for appellate review when defendant cited no authority and presented no argument on issue).
Aside from briefing waiver, Jamie has not met her burden of proving by a preponderance of the evidence that her counsel was ineffective. She summarily states that her trial counsel was deficient in that counsel "did not appear from the record" to do certain things, and lists thirteen items of alleged deficiency in her brief (most of which appear to be pretrial matters). However, Jamie does not inform this court how her counsel was deficient, cite a single case for the proposition that any of the deficiencies she alleges amounts to ineffective assistance of counsel, or demonstrate how she was harmed. To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688-92 (1984); see also, e.g., Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). An appellant has the burden of proving her claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant usually cannot meet this burden if the record does not specifically focus on the reasons for trial counsel's conduct. Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd).
Although Jamie filed a motion for new trial, on which a hearing was held, trial counsel did not attend the hearing. In the absence of a proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). When there is no hearing on a motion for new trial or if trial counsel does not appear at such a hearing, an affidavit from trial counsel becomes almost vital to the success of a claim of ineffective assistance of counsel. Howard v. State, 894 S.W.2d 104, 107 (Tex. App.-Beaumont 1995, pet. ref'd). Here, there is no such affidavit in the appellate record. Jamie has not rebutted the presumption that her trial counsel made all significant decisions in the exercise of reasonable professional judgment, and Jamie has not demonstrated in the record that trial counsel rendered ineffective assistance. See Thompson, 9 S.W.3d at 814. We will not speculate about counsel's strategic decisions, and thus, we cannot find Jamie's trial counsel ineffective based on the asserted grounds. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.) ("Due to lack of evidence in the record concerning trial counsel's reasons for conducting voir dire as he did and for not objecting to certain testimony and argument, we are unable to conclude that trial counsel's performance was deficient."). Thus, we overrule Jamie's seventh issue.
In Jamie's eighth issue, she complains that any testimony by the DPRS caseworker about statements Jamie made to the caseworker during an interview at the Texas City Police Station should not have been allowed into evidence because Jamie was not given her Miranda rights. We first note that it is unclear whether Jamie is complaining of something that actually happened. Her complaint presented to this court is "[i]f appellant made any statements to the TDPRS investigator that were incriminating during her interview at the Texas City Police Station, Appellant would argue that any testimony as to statements made during this interview were inadmissible as Appellant was not read her Miranda rights." Jamie does not otherwise inform us as to what evidence or statements were improperly admitted. Nor is there any indication that she timely objected to the trial court on the basis that she was not given a Miranda warning. Thus, nothing is presented for our review. See TEX. R. APP. P. 33.1(a). In any event, because this is a civil proceeding, Miranda is inapplicable, and any statements by Jamie to the DPRS caseworker were admissible. See Chavez v. Martinez, 538 U.S. 760, ___, 123 S.Ct. 1994, 2004, 155 L.Ed.2d 984, ___ (2003) ("[A] violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case."). We therefore overrule Jamie's eighth issue.
Having overruled all of Jamie's issues, we affirm the judgment of the trial court.