Opinion
No. 05-17-00294-CV
09-11-2017
IN THE MATTER OF D.A.D.
On Appeal from the 417th Judicial District Court Collin County, Texas
Trial Court Cause No. 417-70420-2016
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Bridges
In August 2016, the State charged twenty-year-old appellant with two counts of aggravated sexual assault of a child and one count of indecency with a child. Because appellant was fifteen-years-old at the time of the offenses but over the age of eighteen when indicted, the State petitioned the juvenile court to waive its jurisdiction and transfer the case to a criminal district court. The juvenile court transferred the indecency with a child count to a criminal district court but dismissed the other two counts. In a single issue, appellant asserts the juvenile court abused its discretion by waiving its jurisdiction and transferring the case because the State did not exercise due diligence in prosecuting the case prior to appellant's eighteenth birthday. We affirm.
Appellant was born March 16, 1996.
Background
In 2011, appellant was fifteen-years-old and living with his mother, Estela Mojica in Collin County. JM and her siblings moved in with Mojica, who was their aunt, because their mother was divorcing their father and spent most of her time looking for work in Tarrant County.
On October 5, 2011, JM's kindergarten teacher noticed bruising on her cheek that looked like a handprint. The school nurse and the principal further examined JM's body for any additional injuries. They discovered bruising down her left side, on her waist, and down the back of her thigh. Some of these bruises also had fingerprint-type patterns.
When they questioned JM, she said she fell. The women did not believe her explanation was consistent with the injuries. The injuries were serious enough that the women contacted the school resource officer, Officer George White. Officer White then initiated a CPS referral and called Sergeant Billy Lanier.
Later that day, JM went to the children's advocacy center for a forensic interview. Lisa Martinez conducted her interview. JM provided inconsistent reasons for her bruises, which included that she fell, that an unknown person hit her, and that she hit a table and then "a kid accidentally hit her on the cheek."
She said Mojica sometimes made her sleep on the garage floor because she wet the bed and that Mojica sometimes hit her with a hanger, a belt, or a switch. JM also said appellant sometimes hit her bottom with a belt. However, JM never said Mojica or appellant caused any of her current bruises.
Martinez asked JM, "Is there something we haven't talked about that you might need help with?" and she said no. Martinez explained "hurtful touches" and "private touch[es]." JM identified her "chi chis," "twat," and "bottom." She denied anyone touching or looking at her "chi chis" or "twat." She said appellant looked at her bottom when he hit her, but she did not allege any sexual abuse. In fact, she denied anyone making her touch or look at their private parts.
Sergeant Lanier observed the forensic interview but did not believe there was enough evidence to charge anyone with a crime because JM "wasn't talking about how the abuse actually occurred." JM was not claiming that Mojica or appellant caused her injuries. He felt like her answers were trying to protect someone, which he acknowledged was completely normal when children begin to disclose abuse. He explained, "Normally what we would do is refer them to therapy and CPS follow-up, and if at some point they would start to disclose who caused abuse, then we would move forward with the investigation." When he closed his investigation in 2011, there was no evidence of sexual abuse.
CPS removed the children from Mojica's home and placed them in foster care. They lived at a shelter called My Friend's House from October 5, 2011 to November 9, 2011. They were then placed with a foster family in Weatherford.
Weylander Sampson worked for CPS and was JM's and her siblings' assigned caseworker beginning in November 2011. The information she received about the children involved physical abuse. When she left CPS in August 2012, JM had made no sexual abuse allegations.
Natalie Reynolds took over as JM's caseworker in August 2012. At this time, the children had been returned to mother. Reynolds reviewed the case history, and again, there was no documented sexual abuse. The children were seeing a therapist, but JM never made any outcry to the therapist. Rather, the children's concerns involved feelings of nervousness about reuniting with mother. Reynolds testified appellant's name neither came up in any conversations with her nor was he documented in any therapy notes. JM's CPS case officially closed in 2013.
After the children's return to mother, mother noticed JM was withdrawn and not as social as in the past. Mother repeatedly asked JM if anything was wrong and if she needed to talk to anyone. JM never said anything. Finally, in June 2016, she told mother that when she lived with Mojica, appellant would go with her into the bathroom and make her "do stuff to him, and that when she didn't want to, he would hit her." She never said anything before because he told her not to.
The next day, mother and JM went to the Fort Worth police department. Mother's interview was videotaped. It was during the interview that for the first time, mother said JM allegedly told a CPS worker about the sexual abuse in 2011 but the unknown worker did not believe her. However, during the certification hearing, mother testified JM told a woman with CPS that "he would hit her and things like that," but the unidentified woman "would tell her that she was lying and didn't want to hear what she had to say." When pressed at the certification hearing, mother emphasized that JM told someone at CPS that appellant was hitting her.
Detective Danny Stasik received the referral from the Fort Worth police department about possible sexual abuse and set up another forensic interview. He reviewed the case file from 2011 and did not find any sexual abuse allegations, only physical abuse.
During the 2016 forensic interview with Martinez, JM made allegations against appellant for indecency with a child (her hand on appellant's penis), aggravated sexual assault (her mouth on his penis), and appellant touching her sexual organ. She also said that she never told mother what happened because she was scared she would not do anything. JM said when she was in foster care, she told her brothers and sisters and they told "a CPS person and the CPS person said they were telling a lie because they wanted to go back to their mom." She could not remember who the siblings supposedly told. Yet, she said the very first grown up she told was her mother, but she admitted she did not tell her mother as much detail as she told Martinez.
Renee Womack was the CPS investigator who received the June 14, 2016 report concerning possible sexual abuse. She reviewed the past 2011 CPS investigation. Her review of the case file from 2011 until it closed in 2013 did not note any sexual abuse. She determined CPS did not need to open a new investigation because there were no recent or current allegations or any future foreseeable risks.
Later, a detective interviewed appellant and during the interview, he admitted to receiving oral sex from JM and her grabbing his penis. The State indicted appellant on two counts of aggravated sexual assault of a child and one count of indecency with a child.
Although appellant was a juvenile at the time of the offense, he was over the age of eighteen when indicted. The State petitioned the juvenile court to waive its jurisdiction and transfer the case to a criminal district court. After the certification hearing, the juvenile court transferred the indecency with a child count to a criminal district court but dismissed the other two counts. This appeal followed.
Discussion
The juvenile court has exclusive, original jurisdiction over children sixteen years of age and younger. TEX. FAM. CODE ANN. § 51.04(a) (West 2014); Ex parte Waggoner, 61 S.W.3d 429, 431 (Tex. Crim. App. 2001). The discretionary power to transfer a juvenile may be exercised only after the State files a petition or motion requesting waiver and transfer. TEX. FAM. CODE ANN. § 54.02(b) (West 2014). Section 54.02(j) provides, in relevant part, that the juvenile court may waive its jurisdiction and transfer a case to a criminal district court if the juvenile court finds from a preponderance of the evidence that after due diligence of the State, it was not practicable to proceed to juvenile court before the person's eighteenth birthday because the State did not have probable cause to proceed in juvenile court and new evidence has been found since the person's eighteenth birthday. Id. § 54.02(j)(4)(B)(1).
On appeal, we first review the legal and factual sufficiency of the evidence relating to the juvenile court's specific findings of fact regarding factors stated in Section 54.02(j). Moon v. State, 451 S.W.3d 28, 47 (Tex. Crim. App. 2014). When reviewing the legal sufficiency of the evidence, we credit the proof favorable to the findings and disregard contrary proof unless a reasonable factfinder could not. In re S.G.R., 496 S.W.3d 235, 239 (Tex. App.—Houston [1st Dist.] 2016, no pet.). If there is more than a scintilla of evidence supporting a finding, then the proof is legally sufficient. Id. When reviewing the factual sufficiency of the evidence, we consider all of the evidence presented to determine if the juvenile court's findings are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. But, our review of the sufficiency of the evidence supporting waiver is limited to the facts the juvenile court expressly relied on in its transfer order. Moon, 451 S.W.3d at 50.
If the findings of the juvenile court are supported by legally and factually sufficient proof, then we review the ultimate waiver decision under an abuse of discretion standard. Moon, 451 S.W.3d at 47. As with any decision that lies within the discretion of the trial court, the salient question is not whether we might have decided the issue differently. Id. at 49. Instead, we consider in light of our review of the sufficiency of the evidence whether the juvenile court's decision represents a reasonably principled application of the law or was essentially arbitrary or made without reference to the statutory criteria for waiver. Id. at 47. So long as the juvenile court correctly applies the statutory criteria, its waiver decision generally will pass muster under this standard of review. Id. at 49; In re S.G.R., 496 S.W.3d at 239.
The trial court made the following relevant findings of fact:
4. The court finds by a preponderance of the evidence that after due diligence of the [S]tate it was not practicable to proceed in juvenile court before the 18th birthday of the Respondent because the State did not have probable cause to proceed to juvenile court and new evidence has been found since the 18th birthday of the person.
5. The Court finds that there is probable cause to believe that the Respondent committed the offense alleged in Count 3 - Indecency with a Child by Contact.
Appellant challenges only the "due diligence" factor under section 54.02(j); therefore, we limit our analysis to whether the State had probable cause to proceed in juvenile court before appellant turned eighteen. Neither the family code nor the juvenile justice code defines "due diligence," but the phrase has been defined in other contexts. See In re B.R.H., 426 S.W.3d 163, 168 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Due diligence requires the State to "move ahead" or "reasonably explain delays." Id. It does not require the State "to do everything perceivable and conceivable to avoid delay." In re N.M.P., 969 S.W.2d 95, 100 (Tex. App.—Amarillo 1998, no pet.). Diligence is usually a fact question that the trial court determines in light of the circumstances of each case. In re B.R.H., 426 S.W.3d at 168.
Appellant relies heavily on the initial 2011 CPS investigation in which JM made various allegations of physical abuse against family members, including appellant. He asserts Sergeant Lanier failed to exercise due diligence in investigating the potential injury to a child case, and "If he had done so, then it is clear that JM would have disclosed the sexual abuse." Appellant's statement is pure speculation.
Appellant provides no authority to support the proposition that before a juvenile court may waive its jurisdiction, the State is required to exercise due diligence in investigating one type of offense on the off chance it might discover a different offense. In fact, case law indicates the contrary. "Even if the evidence presented at a transfer hearing raises offenses not alleged in the petition, the court need not rule on them . . . Indeed, the court may not rule on them because, unless alleged in the petition, the new offenses are not properly within the juvenile court's jurisdiction." See In re C.C., 930 S.W.2d 929, 935 n.5 (Tex. App.—Austin 1996, no pet.); Joseph v. State, 864 S.W.2d 737, 738 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Therefore, under these facts any evidence presented at the transfer hearing regarding alleged physical abuse is irrelevant for our determination of whether, after due diligence, it was impracticable for the State to proceed in juvenile court on the indecency with a child count before appellant turned eighteen.
Numerous witnesses testified JM never mentioned any sexual abuse by appellant in 2011. These witnesses included teachers, investigating officers, and CPS caseworkers. In fact, the focus of the 2011 CPS investigation involved allegations of only physical abuse.
During JM's 2011 forensic interview, Martinez inquired about sexual abuse by discussing "private" touches with her. JM denied anyone touching or looking at her private parts or anyone making her look or touch their private parts.
The State also presented witness testimony from subsequent CPS case workers who were involved in JM's case. None of them were aware of any allegations of sexual abuse and none of JM's CPS files contained documentation of an outcry.
Stacy Weston, an investigation supervisor with CPS, was in charge of decision-making in JM's case in 2011. During the time Weston and Karla Seguias, the assigned caseworker, were involved with JM, she made no allegation of sexual abuse. CPS talked to JM's siblings about the physical abuse and none of them indicated sexual abuse in the home.
Weston testified that if JM had made an outcry, CPS would have documented it in her records. She also said that if JM or the siblings told Seguias something that Seguias did not believe, Seguias would have told her. "Typically, the caseworkers bring all the information to me, and then we kind of sort through it together." It is against CPS policy to dismiss a sexual abuse allegation and to tell a child she is lying.
Reynolds also testified CPS documents sexual abuse outcries and telling a child she is lying would violate CPS policy, and she would not expect this to happen.
Thus, crediting evidence favorable to the due diligence findings and disregarding contrary evidence, there is more than a scintilla of evidence supporting the court's finding that the State did not have probable cause of sexual abuse allegations against appellant prior to his eighteenth birthday. See Moon, 410 S.W.3d at 371.
We now consider the factual sufficiency of the trial court's due diligence finding and consider the following evidence. The court heard testimony from Gayla Villasenor, JM's foster parent from November 9, 2011 until approximately August 10, 2012. She claimed that JM's sister, GM, told her that appellant used to make excuses to walk into the bathroom when the girls showered. GM, however, denied knowing anything about appellant abusing JM until mother told her in 2016.
Villasenor testified that JM told her about the abuse, and when Villasenor asked if she ever told anyone, JM said no. This testimony contradicted JM's testimony in which she claimed to have told an unknown CPS worker.
Villasenor testified she wrote down everything JM said, typed it up, and mailed a copy to Arrow Child and Family Ministries. She claimed she hand-delivered a copy to Weylander. However, the family file did not contain this alleged letter and Villasenor did not keep a copy for herself. She said she might have saved it on her old computer, but she no longer had it.
Arrow was Villasenor's contracting agency for foster parenting, and Arrow's license was through CPS.
She explained that she later received a phone call from a "CPS supervisor" who acknowledged receiving the package and said, "I was under no circumstances to talk to these kids anymore about what happened at their aunt and uncle's house; that it was being taken care of, under investigation. If the kids wanted to talk about it, they need to talk to their therapist."
Betsy Pattullo testified as the custodian of records for Arrow. She only provided documents and had no personal knowledge about the case. She explained that if Arrow received a report of sexual abuse, the person receiving the report would ask the foster parent to make a report to the hotline and then an internal incident report would be made. She testified abuse allegations are taken seriously and they would also "likely notify" CPS. JM's family file contained no documentation about sexual abuse or the alleged letter written by Villasenor.
Ultimately, the trial court made the following finding:
7. The Court finds that the alleged victim did testify that she tried to tell CPS that she had been sexually abused by Respondent, but that CPS replied that she was "lying" in order to get back with her mother. There was no evidence that CPS ever wrote down the alleged complaint and did not recall being told while under oath at the Transfer hearing.
Although the court recognized JM testified that she tried to tell CPS about the abuse, the court did not find that she did in fact outcry to CPS. Based on JM's equivocal testimony, this finding is not so against the great weight of the evidence as to be clearly wrong or unjust. For instance, JM testified that when they were staying at the shelter in 2011, she told her sister LM and her brother SM that appellant was sexually abusing her. However, neither sibling recalled JM telling them about any sexual abuse while they were at the shelter. In fact, SM testified he did not find out about the abuse until 2016. Although LM thought she overheard some person tell mother JM said appellant "touched her," LM did not know if "touched" referred to sexual touching or to hitting. Thus, although the trial court heard evidence that JM was sure she told CPS something, she was less sure as to what or who she told.
Further, even if we assumed CPS knew of the abuse but failed to document or report it, appellant has not argued on appeal and the trial court did not find that CPS was an agent of the State such that it was working in tandem with police—meaning the police, and thereby the State, would have known about the sexual abuse allegations prior to appellant's eighteenth birthday if the State had acted diligently. See In re H.Y., 512 S.W.3d 467, 483 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (concluding "the state" presumptively means "law enforcement and prosecution").
CPS's mission is to protect the welfare and safety of children in the community. Wilkerson v. State, 173 S.W.3d 521, 528 (Tex. Crim. App. 2005). It is the law enforcement's job to ferret out crime, investigate its commission, arrest the perpetrator, and gather evidence for possible prosecution. Id. Although CPS's duty may at times entail the investigation of child abuse claims, that alone does not transform CPS workers into law enforcement officers or their agents. Id. For the most part, CPS and officers "run on separate parallel paths." Id. at 529. However, even if the two paths converge, the law does not presume an agency relationship. Id. The person alleging such a relationship has the burden to prove it. Id. Appellant did not meet this burden. In fact, defense counsel asked Weston, a CPS investigation supervisor, "And so whether or not a criminal case went forward, that was kind of out of your hands; that would have been up to [Sergeant] Lanier to make those decisions since he was kind of the law enforcement aspect of this reviewing it?" She answered, "Correct." And as stated previously, Sergeant Lanier did not have any information regarding any sexual abuse in 2011. Thus, considering all of the evidence presented, the court's due diligence finding is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Moon, 410 S.W.3d at 371.
Once the State received specific allegations of sexual abuse from JM in 2016, it moved forward with its investigation and quickly indicted appellant, who then admitted to the allegations in an interview. Other than appellant's speculation about what JM might have said if Sergeant Lanier continued his investigation into the physical abuse, appellant has not made any further argument supporting his contention that the State failed to "move ahead" in its investigation once it knew about the abuse. See In re B.R.H., 426 S.W.3d at 168.
Accordingly, we hold that the juvenile court's due diligence finding is supported by legally and factually sufficient evidence. See In re H.Y., 512 S.W.3d at 483. In light of our review of the sufficiency of the evidence, we conclude the juvenile court's decision to waive its jurisdiction and transfer the case to a criminal district court was not an abuse of discretion. Id. Appellant's sole issue is overruled.
Conclusion
We affirm the trial court's order.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
170294F.U05
JUDGMENT
On Appeal from the 417th Judicial District Court, Collin County, Texas
Trial Court Cause No. 417-70420-2016.
Opinion delivered by Justice Bridges. Justices Myers and Brown participating.
In accordance with this Court's opinion of this date, the order of the trial court is AFFIRMED. Judgment entered September 11, 2017.