Opinion
No. 10-05-00401-CV
Opinion delivered and filed November 1, 2006.
Appeal from the 249th District Court, Johnson County, Texas, Trial Court No. D2004005447.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury returned a verdict for termination of the parent-child relationship between D.H. and C.H. and their parents, Tina Starrett and Charles Hegwood. Starrett and Hegwood are represented by different attorneys and present different issues on appeal. We will affirm.
Starrett contends in four issues that: (1) the verdict is against the great weight and preponderance of the evidence as to the predicate acts/omissions necessary to support the judgment; (2) her mental condition should not have been a ground for termination; (3) some of the questions in the charge lacked evidentiary support and some of the questions and instructions commented on the weight of the evidence; and (4) the court abused its discretion by denying her motion for directed verdict and her motion for judgment notwithstanding the verdict.
Hegwood contends in four points that there is no evidence or factually insufficient evidence to prove that he: (1) knowingly placed or allowed the children to remain in dangerous conditions or surroundings; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children; (3) constructively abandoned the children; or (4) failed to comply with the provisions of a court order establishing the actions necessary for return of the children.
Starrett's issues and Hegwood's points are properly before us because they were presented in the parties' respective motions for new trial not only as grounds for a new trial but also as issues which they intended to raise on appeal. See TEX. FAM. CODE ANN. § 263.405(b), (i) (Vernon Supp. 2006).
Background
Department caseworker Christi Martindale received a referral from a Colorado social services agency in December 2003 regarding D.H.'s and C.H.'s family. The Colorado agency had been working with the family after C.H. was born with drugs in his system. Informal services were provided for a period of time, but when the agency sought protective custody, Starrett and Hegwood moved with the children to Texas.
The Department began providing services to the family in January 2004. Martindale developed concerns for the children's welfare during three months of interaction with the family. Specifically, Martindale was concerned with: (1) the family's financial stability and the resulting difficulties Starrett and Hegwood experienced in providing adequate food, shelter, and clothing; (2) Starrett's and Hegwood's inability to provide appropriate discipline and care; (3) their failure to prevent D.H. from wandering away from the home; (4) Starrett's locking D.H. out of the house on occasion to clean the house; (5) drug usage on Hegwood's part; and (6) the failure of an effort to place the children in a relative's home.
Hegwood was arrested for robbery in August 2004. After pleading guilty on this charge, he was transferred to Tennessee to answer a probation revocation for forgery. Hegwood's probation was revoked in Tennessee, and he has remained incarcerated ever since.
Hegwood testified via deposition at the termination trial.
After the Department was unable to find a satisfactory family placement, the Department initiated termination proceedings. The Department alleged that Starrett's parental rights should be terminated because she:
(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being;
(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being;
(3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children, who had been in the Department's custody for at least nine months; and
(4) has a mental or emotional illness or a mental deficiency that renders her unable to provide for the physical, emotional, and mental needs of the children.
See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (O) (Vernon Supp. 2006), § 161.003 (Vernon 2002).
The Department alleged that Hegwood's parental rights should be terminated because he:
(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being;
(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being;
(3) constructively abandoned the children, who had been in the Department's custody for at least six months; and
(4) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the children, who had been in the Department's custody for at least nine months.
Id. § 161.001(1)(D), (E), (N), (O) (Vernon Supp. 2006).
The jury found that Starrett and Hegwood had both committed the predicate acts and omissions alleged and that termination would be in the children's best interest.
Dangerous Conditions/Surroundings
Hegwood contends in his first point that there is no evidence or factually insufficient evidence to prove that he knowingly placed or allowed the children to remain in dangerous conditions or surroundings. Starrett contends as part of her first issue that the evidence is factually insufficient to prove that she knowingly placed or allowed the children to remain in dangerous conditions or surroundings.
A no-evidence issue in a termination appeal will be sustained if, after "look[ing] at all the evidence in the light most favorable to the [verdict]," an appellate "court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
When an appellate court evaluates a factual insufficiency complaint in a termination case, the court must consider the evidence supporting the verdict and the evidence contrary to the verdict and determine whether the "disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its [verdict]." See id.
A Colorado social worker visited the home on a date she wasn't expected and observed that "the house was filthy."
The trash was piled, overflowing, and strewn everywhere, obviously with the help of the pets, who were also chewing clothing, blankets and both boys' toys. The puppies had defecated all over the floor, including on the piles of dirty clothing in the hallway. Dirty dishes and leftover food covered the kitchen. Tina and Charles said it was just a lazy day. I said that they just couldn't leave things like that with the kids around, especially the dog feces. It was cleaned up when I returned the next day but the mess caused me concern about those boys when no one is around. The place is hazardous, in my opinion.
Martindale testified that she witnessed similar conditions in Starrett's and Hegwood's Texas home and that "the home progressively was worse as far as cleanliness."
Martindale also testified that on one visit she observed that Starrett had shut 9-month-old C.H. in his bedroom while she cleaned the bathroom. According to Martindale, it was difficult to hear what was happening in the bedroom from the bathroom and there were various hazards which made the bedroom an unsafe environment for C.H. to remain in unsupervised. Starrett herself testified that she put C.H. in the room when she had to deal with D.H.'s behavioral issues, which she had to do on a daily basis. Hegwood was there only about half the time to help with C.H. while Starrett dealt with D.H.
Specifically, Martindale testified that: (1) the cord for the blinds was within C.H.'s reach, and he could have become tangled in it; (2) there were open dresser drawers he could have crawled up on; and (3) several of D.H.'s toys within C.H.'s reach posed a choking hazard to C.H.
Starrett lived in at least five different homes during the twenty-two-month period between the date the Colorado agency first visited and the time of the trial. A clinical psychologist who conducted evaluations of both children testified that C.H. would experience "deterioration in functioning" if not placed in a stable, secure environment. According to the psychologist, it "would be a disaster" if the children were not placed in that type of environment. Hegwood testified that they were evicted from one home because they failed to pay the rent, but he explained that they withheld payment until the landlord made some repairs, which were never made. He also testified that their electricity was cut off at least once because they had failed to pay the bill.
Hegwood testified that there were two or three occasions when they had to rely on his mother's family and "a couple of churches" to provide food. He also stated that the Department provided food, diapers, and beds for the children. A neighbor testified that D.H. came to her home on at least five occasions looking for something to eat and that he had gone to at least two other neighbors' homes asking for food.
Starrett testified, however, that D.H. is "a very, very picky eater" and she had difficulty finding foods to satisfy him. "If he don't like it, he'll throw it on the floor."
Unsanitary living conditions can be considered conditions or surroundings which endanger the well-being of a child under section 161.001(1)(D). See In re M.C., 917 S.W.2d 268, 269-70 (Tex. 1996) (per curiam); In re J.R., 171 S.W.3d 558, 573-74 (Tex.App.-Houston [14th Dist.] 2005, no pet.); In re A.P., 42 S.W.3d 248, 259 (Tex.App.-Waco 2001, no pet.); Leal v. Tex. Dep't of Protective Regulatory Servs., 25 S.W.3d 315, 325 (Tex.App.-Austin 2000, no pet.). However, courts generally require more than unsanitary conditions to uphold a finding under this provision. See J.R., 171 S.W.3d at 573-74; Doyle v. Tex. Dep't of Protective Regulatory Servs., 16 S.W.3d 390, 394-95 (Tex.App.-El Paso 2000, pet. denied).
Here, the record contains more than evidence of mere unsanitary living conditions. The Colorado social worker characterized the home as "hazardous." See Leal, 25 S.W.3d at 325; cf. Doyle, 16 S.W.3d at 395 ("The Department offered no testimony, expert or otherwise, to establish that the conditions in this home endangered the physical or emotional well-being of the children."). Martindale testified that the cleanliness of the home "progressively was worse" during the course of the Department's involvement. She also identified three specific hazards which were in the bedroom where Starrett frequently put C.H. without supervision.
Starrett and Hegwood were unable to maintain stable housing during the course of the Department's involvement, which the clinical psychologist testified was "a disaster" for the children's emotional well-being.
Nor were Starrett and Hegwood able to consistently provide food for the family despite receiving governmental assistance in the form of supplemental security income (SSI) intended for this very purpose. Instead, D.H. often went to neighbors seeking food.
From this evidence, we hold that a "reasonable factfinder could form a firm belief or conviction" that Starrett and Hegwood knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D); M.C., 917 S.W.2d at 269-70; A.P., 42 S.W.3d at 257; Leal, 25 S.W.3d at 325.
As controverting evidence, Hegwood testified that, when they were unable to afford food, they could obtain food from other sources. C.H. was apparently never hurt despite being frequently left in a room with hazards. However, "endanger" means only "to expose to loss or injury; to jeopardize." M.C., 917 S.W.2d at 269; In re W.R.E., 167 S.W.3d 636, 641 (Tex.App.-Dallas 2005, pet. denied); In re M.N.G., 147 S.W.3d 521, 536 (Tex.App.-Fort Worth 2004, pet. denied); A.P., 42 S.W.3d at 259. Actual injury is not required. Id.
Hegwood testified that they were evicted because they intentionally withheld their rent payment to force the landlord to make repairs, which the landlord refused to do. He disclaimed any personal responsibility for any failure to pay other bills ( e.g., electricity) because Starrett was responsible for paying their bills.
Starrett attributed D.H.'s constant hunger to his pickiness as an eater rather than a lack of available food. From her testimony however, it can be readily inferred that she served some foods that D.H. liked. It would have been reasonable for the jury to infer that Starrett should have served more of these foods or should have worked more diligently to expand the range of foods D.H. would eat.
Although there is some evidence contrary to the verdict, we cannot say that the disputed evidence "is such that a reasonable factfinder could not have resolved that disputed evidence in favor of" findings that Starrett and Hegwood knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(D); In re W.J.H., 111 S.W.3d 707, 716-18 (Tex.App.-Fort Worth 2003, pet. denied); A.P., 42 S.W.3d at 257-59; Leal, 25 S.W.3d at 324-25.
Accordingly, we overrule Hegwood's first point and that portion of Starrett's first issue that challenges this particular finding.
Other Predicate Acts/Omissions
Because we have determined that there is some evidence and factually sufficient evidence to support the verdict under section 161.001(1)(D), we need not address Hegwood's remaining points, the remainder of Starrett's first issue, or Starrett's second issue. See In re K.N.R., 137 S.W.3d 675, 676 (Tex.App.-Waco 2004, no pet.); In re J.T.G., 121 S.W.3d 117, 128 (Tex.App.-Fort Worth 2003, no pet.); Green v. Tex. Dep't of Protective Regulatory Servs., 25 S.W.3d 213, 219-20 (Tex.App.-El Paso 2000, no pet.).
Neither Starrett nor Hegwood challenge the jury's finding that termination is in the children's best interest.
Comment on the Weight of the Evidence
Starrett contends in a portion of her third issue that some of the questions and instructions in the charge commented on the weight of the evidence.
Specifically, Starrett contends that the definition of the term "endangerment" the court provided in the charge constitutes an impermissible comment on the weight of the evidence. However, Starrett did not object to this definition during the charge conference. Thus, she did not preserve this issue for appellate review. See TEX. R. APP. P. 33.1(a)(1); Taveau v. Brenden, 174 S.W.3d 873, 877-78 (Tex.App.-Eastland 2005, pet. denied); Miller v. Kennedy Minshew, Prof'l Corp., 142 S.W.3d 325, 342 n. 44 (Tex.App.-Fort Worth 2003, pet. denied).
Starrett did raise this objection in her motion for new trial.
Starrett also contends that a phrase in the court's questions regarding her compliance with the court's order establishing the conditions necessary for her children's return impermissibly commented on the weight of the evidence.
Questions 3 and 8 asked the jury:
Do you find by clear and convincing evidence that Tina Starrett failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child . . ., who has been in the temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of [the child's] removal from Tina Starrett for the abuse or neglect, if any, of the child . . .
Section 161.001(1)(O), on which these questions are based, provides that parental rights may be terminated if a parent:
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.
TEX. FAM. CODE ANN. § 161.001(1)(O).
The challenged questions closely track the language of the statute. In response to Starrett's objection, the court added the words "if any" to the phrase referring to the Department's removal of the children for abuse or neglect.
Rule of Civil Procedure 277 prohibits a court from directly commenting on the weight of the evidence in the charge. A court violates this prohibition when a question, definition, or instruction suggests to the jury the court's opinion on a matter to be decided by the jury. See In re M.E.C., 66 S.W.3d 449, 458 (Tex.App.-Waco 2001, no pet.); Rowe v. Rowe, 887 S.W.2d 191, 199 (Tex.App.-Fort Worth 1994, writ denied); see also 34 T. RAY GUY, TEXAS PRACTICE: THE JURY CHARGE IN TEXAS CIVIL LITIGATION § 1.19 (3d ed. 2003).
Here, the jury was instructed to determine whether Starrett had failed to comply with the pertinent court order after the children had been in the Department's custody for at least nine months after being removed from the home for "abuse or neglect, if any." (emphasis added).
"When two related facts are controverted and one must be mentioned in inquiring about the other, the erroneous assumption of a controverted fact may be avoided by inserting, where appropriate, the phrase `if any' or some equivalent." GUY, supra § 4.19; accord 4 ROY W. McDONALD ELAINE A. GRAFTON CARLSON, TEXAS CIVIL PRACTICE § 22.12 n. 9 (2d ed. 2001).
Because the trial court included the phrase "if any" in the challenged questions, the questions did not suggest to the jury that the court believed the children were removed from the home because of abuse or neglect. See Baker Marine Corp. v. Moseley, 645 S.W.2d 486, 489-90 (Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.); cf. Briseno v. Martin, 561 S.W.2d 794, 796 (Tex. 1977) ("the statement in Special Issue No. 8 that `. . . W.L. Martin, Jr. was a reckless and incompetent driver,' without qualifying the assertion by appropriate language, such as, `if you have so found,' incidentally comments on the weight of the evidence"); GUY, supra § 4.19; McDONALD CARLSON, supra § 22.12 n. 9. Thus, questions 3 and 8 did not comment on the weight of the evidence.
Sufficiency of Evidence Supporting Submission of Questions
Starrett also contends in her third issue that there is insufficient evidence to support submission of jury questions which asked: (1) whether she had complied with the provisions of a court order establishing the conditions necessary for her children's return (questions 3 and 8); and (2) whether she has a mental or emotional illness or mental deficiency which renders her unable to provide for the children's needs (questions 4 and 9).
Submission of an improper jury question can be harmless error if the jury's answers to other questions render the improper question immaterial. A jury question is considered immaterial when its answer can be found elsewhere in the verdict or when its answer cannot alter the effect of the verdict. Submission of an immaterial issue is not harmful error unless the submission confused or misled the jury. When determining whether a particular question could have confused or misled the jury, we "consider its probable effect on the minds of the jury in the light of the charge as a whole."
City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) (quoting Tex. Employers Ins. Ass'n v. McKay, 146 Tex. 569, 210 S.W.2d 147, 149 (1948) (other citations omitted)); cited with approval in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000); accord River Oaks Place Council of Co-Owners v. Daly, 172 S.W.3d 314, 325 (Tex.App.-Corpus Christi 2005, no pet.).
Here, the trial court submitted separate questions to the jury on each ground for termination for each child. We have determined that the evidence is sufficient to support the jury's answers to the questions which asked whether Starrett and Hegwood had knowingly placed or allowed the children to remain in conditions or surroundings which endangered their well-being. Assuming without deciding that there is no evidence to support the submission of the challenged questions, we cannot say after reviewing the charge as a whole that the jury was confused of misled by the submission of the challenged questions. See id.
Therefore, the jury's answers to the questions which we have upheld in our discussion of Starrett's first issue and Hegwood's first point render the challenged questions immaterial. See Alvarado, 897 S.W.2d at 752; River Oaks Place Council, 172 S.W.3d at 325. For this reason, submission of the challenged questions did not cause rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1).
Accordingly, we overrule Starrett's third issue.
Directed Verdict or JNOV
Starrett contends in her fourth issue that the court abused its discretion by failing to grant her motion for directed verdict and her motion for judgment notwithstanding the verdict. Both motions are premised on evidentiary insufficiency. We have determined that there is some evidence to support the verdict on at least one of the grounds submitted for the jury's consideration. Therefore, the court necessarily did not abuse its discretion by failing to grant Starrett's motion for directed verdict and her motion for judgment notwithstanding the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) ("the test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review"). Accordingly, we overrule her fourth issue.
We affirm the judgment.