C. M. v. Texas Department of Family and Protective Services

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00389-CV

C. M., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 283,065-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant C.M. appeals the district court’s decree of termination rendered on the

jury’s verdict terminating her parental rights to her six children, O.M., S.M.-M., J.M.-M., P.M.-M.,

J.M., and J.P.R.-M.1 The jury found that as to each child Appellant: (1) knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endangered the physical

or emotional well-being of the child; or (2) engaged in conduct or knowingly placed the child with

persons who engaged in conduct which endangered the physical or emotional well-being of the child.

See Tex. Fam. Code § 161.001(b)(1)(D), (E). The jury also found that termination of Appellant’s

parental rights was in each child’s best interest. See id. § 161.001(b)(2). On appeal, Appellant

contends that the district judge made “incurable” statements commenting on the weight of a

1 We refer to the parties by their roles in this appeal. See Tex. R. App. P. 9.8(b). witness’s testimony and that Appellant’s trial lawyer provided ineffective assistance.2 We will

affirm the district court’s decree of termination.

BACKGROUND3

Several witnesses testified during trial, including Appellant, Department

conservatorship worker Tracey Scott, the children’s guardian ad litem Carla Wright, and clinical

psychologist Dr. James N. Shinder. The jury heard that Appellant is the biological mother of then

eleven-year-old O.M., ten-year-old S.M.-M., nine-year-old J.M.-M., five-year-old P.M.-M.,

two-year-old J.M., and ten-month old J.P.R.-M. The uncontroverted evidence at trial showed that

Appellant was arrested for sexual assault of a child, that she was currently incarcerated in the Texas

prison system, that her six children were fathered by three different men, that she did not know the

father of her fifth child, and that she did not know the name of the father of her sixth child, who was

born while she was in prison.

Dr. James N. Shinder testified about Appellant’s psychosexual evaluation and the

inconsistencies between the responses she provided to him during the evaluation and the testimony

she provided during her subsequent criminal trial involving her sexual acts with her boyfriend and

a minor girl who had been provided with alcohol in Appellant’s home. Dr. Shinder testified about

Appellant’s impulsivity, “extremely poor judgment,” and denial of any sexually abusive behavior.

He noted Appellant’s testimony about the circumstances of her sixth child’s conception, which

resulted after she had sex with a man whose name she did not know, who had just fixed her vehicle.

2 Appellant does not challenge the sufficiency of the evidence supporting the jury’s findings. 3 The facts are summarized from the testimony and exhibits admitted into evidence at trial.

2 Dr. Shinder’s assessment concluded that Appellant was “incapable of adequately parenting at this

time due to severe dysfunction as described.” He testified that a person who abuses a non-biological

child has a 12%–15% propensity to abuse a biological child next, if there is a second offense. Dr.

Shinder also testified that he was concerned about Appellant’s judgment as to the men she would

bring into her home with her children around.

Appellant acknowledged during her testimony that her children were removed from

her because of her arrest for sexual assault of a child. Appellant then invoked her Fifth Amendment

privilege not to testify when asked whether she was charged with having a sexual relationship with

a girl named S., where her children were when she was in bed with her boyfriend and S., and how

long she was going to be in prison.

Tracey Scott, the Department’s conservatorship worker assigned to Appellant’s

children, also testified. She stated that Appellant was currently incarcerated at a women’s prison in

Gatesville and that Appellant’s children are in foster care. Scott testified that Appellant’s youngest

child was born after her five older children were removed from her care, so the sixth child never

lived with his siblings. Scott stated that the five older children were doing very well in foster care,

that they were happy, learning to play musical instruments, and doing well in school. The youngest

child was also doing very well with his foster family, meeting all developmental milestones, and had

never known Appellant as his biological mother. Scott stated that both sets of foster parents want

to adopt the children in their care, and that it would be in the best interest of the children to terminate

Appellant’s parental rights.4

4 Scott testified that the parental rights of the fathers had been terminated in another proceeding.

3 The jury then heard from the guardian ad litem for Appellant’s children, Carla

Wright, who testified that she was concerned about Appellant’s ability to be protective and the type

of man that Appellant would choose to have around her children when Appellant gets out of prison.

Wright stated that Appellant had shown “very poor judgment” in allowing a fifteen-year-old girl to

consume alcohol in Appellant’s home and that Appellant did not show protectiveness by blaming

the girl for being sexually abused by Appellant’s boyfriend. Wright testified that such choices raise

questions about a parent’s ability to be protective of the parent’s own children if the parent allows

something to happen to another child. Wright also testified that Appellant’s children were doing

“fantastic” and “very happy” with their foster parents who provide them with stability, permanency,

and love, and that no family members came forward to take the children. Wright noted that five of

the children were in the same foster home and that the youngest child is in a foster home nearby to

maintain sibling contact. Both sets of foster parents want to adopt the children. Ultimately, Wright

concluded that the children should be freed for adoption, and that it was in the children’s best interest

to terminate Appellant’s parental rights.

After the trial, the district court signed a decree terminating Appellant’s parental

rights to her six children. This appeal followed.

DISCUSSION

No showing of incurable statements as to weight of witness’s testimony

In her first issue, Appellant contends that the district judge made “incurable”

statements commenting on the weight of a witness’s testimony. Specifically, she complains that

after “the Rule” was invoked and before any testimony began, the judge informed the jury that the

4 Rule did not apply to Dr. Shinder as an expert witness. See Tex. R. Civ. P. 267(a)–(b), Tex. R. Evid.

614(c) (providing that on party’s request, trial court must order witnesses excluded from courtroom

so they cannot hear other witnesses’ testimony and providing exemption for certain witnesses,

including those shown to be essential to presentation of case).5 Appellant also complains that when

she later objected to a leading question asked of Dr. Shinder, the judge stated that Dr. Shinder was

qualified as an expert and could be led.

Appellant acknowledges that she failed to object at trial to either of those statements.

Further, the record reflects that Appellant raised no objection when the judge asked beforehand

whether Dr. Shinder would be testifying. See In re E.R.C., 496 S.W.3d 270, 282–83 (Tex.

App.—Texarkana 2016, pet. denied) (concluding that mother’s failure to object to witness at trial

as unqualified to give expert testimony failed to preserve error for appeal); In re M.D.S., 1 S.W.3d

190, 200 (Tex. App.—Amarillo 1999, no pet.) (noting that “failure to object to a witness’s

qualifications as an expert fails to preserve error for appeal”); see also Wilfin, Inc. v. Williams,

615 S.W.2d 242, 244 (Tex. App.—Dallas 1981, writ ref’d n.r.e.) (“[A] witness is presumed to be

qualified to give his opinion, when the opinion is admitted without objection.”). In Appellant’s

view, no objection was necessary because the judge’s statements “are inherently prejudicial, invade

the province of the jury, and are therefore incurable.”

5 We note that if Appellant had objected, the judge would have had the opportunity to rule on whether Dr. Shinder was essential to the presentation of the Department’s case. See Tex. R. Civ. P. 267(a)–(b), Tex. R. Evid. 614(c). In any event, because Dr. Shinder was the first witness at trial, it would have been unnecessary to exclude him from the courtroom after the Rule was invoked to prevent him from hearing the testimony of another witness before he testified.

5 However, the only authority that Appellant cites held that the trial judge’s statements

were not incurable and that complaints about the trial judge’s statements were not preserved for

appellate review. See In re Commitment of Stuteville, 463 S.W.3d 543, 558 (Tex. App.—Houston

[1st Dist.] 2015, pet. denied); Capellen v. Capellen, 888 S.W.2d 539, 547 (Tex. App.—El Paso

1994, writ denied). Appellant offers no authority for her argument that a trial judge’s statements like

the ones she complains of here—i.e., recognizing a witness as an expert exempt from the Rule before

any testimony began and overruling an objection to a leading question asked of a witness whom the

court said was qualified as an expert—are inherently prejudicial or incurable. See Tex. R. App. P.

38.1(I) (requiring briefs to contain citation to authority for arguments); In re I.C., No.

02-15-00300-CV, 2016 Tex. App. LEXIS 3643, at *37 (Tex. App.—Fort Worth Apr. 7, 2016, no

pet.) (mem. op.) (rejecting father’s complaint that trial court’s comments deprived him of fair trial

on termination of his parental rights where father cited no legal authority for his contentions).

Without such authority, and in the absence of an objection at trial, Appellant has failed to preserve

her complaint that statements made by the court constituted comments on the weight of the evidence.

See Tex. R. App. P. 33.1(a) (requiring timely request, objection, or motion to trial court to preserve

complaint for appellate review). We overrule Appellant’s first issue.

No showing that trial counsel provided ineffective assistance

In her second issue, Appellant contends that her trial counsel provided ineffective

assistance by not challenging Dr. Shinder’s qualifications and the reliability of his opinions, not

ensuring that voir dire proceedings were on the record, and not making various objections and a

motion to strike at trial. Proving ineffective assistance of counsel requires showing: (1) commission

6 of errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth

Amendment, and (2) that counsel’s deficient performance prejudiced the defense—i.e., “that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.” In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (quoting Strickland v. Washington,

466 U.S. 668, 687 (1984)). We must determine “whether there is a reasonable probability that, but

for counsel’s unprofessional error(s), the result of the proceeding would have been different.” Id.

at 549–50 (cleaned up).

In adopting the Strickland test for parental termination cases, the Texas Supreme

Court noted that, taking into account all of the circumstances surrounding the case, we “must

primarily focus on whether counsel performed in a reasonably effective manner. . . . In this process,

we must give great deference to counsel’s performance, indulging a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance, including the

possibility that counsel’s actions are strategic.” Id. at 545 (cleaned up). Challenged conduct

constitutes ineffective assistance only if it is “so outrageous that no competent attorney would

have engaged in it.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001)); Maxwell v. Texas Dep’t of Family & Protective Servs.,

No. 03-11-00242-CV, 2012 Tex. App. LEXIS 2339, at *17 (Tex. App.—Austin Mar. 23, 2012, no

pet.) (mem. op.) (fact that case could have been tried differently does not establish that counsel’s

performance was deficient). Additionally, allegations of ineffective assistance in a parental-rights

termination case must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Walker v. Texas Dep’t of Family and Protective Servs.,

7 312 S.W.3d 608, 622–23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see In re

K.A.D.K., No. 04-15-00758-CV, 2016 Tex. App. LEXIS 4056, at *22 (Tex. App.—San Antonio

Apr. 20, 2016, pet. denied) (mem. op.). When the record is silent as to the reasons for counsel’s

conduct, a reviewing court may not speculate to find counsel’s representation ineffective. Walker,

312 S.W.3d at 623; In re K.A.D.K., 2016 Tex. App. LEXIS 4056, at *22.

Review of the record does not affirmatively show that Appellant’s trial counsel

committed errors so serious that he was not functioning as “counsel” guaranteed by the Sixth

Amendment or that any deficient performance prejudiced Appellant. Although Appellant contends

that her trial counsel was ineffective because he did not challenge Dr. Shinder’s qualifications as

an expert, nothing in the record from trial indicates that Dr. Shinder was unqualified to give

the opinions that he offered or to perform Appellant’s psychological evaluation. See Maxwell,

2012 Tex. App. LEXIS 2339, at *17–18 (rejecting claim that attorney provided ineffective

assistance in termination-of-parental-rights trial by failing to challenge witness’s qualifications as

clinical psychologist). Dr. Shinder testified that he is licensed by the State of Texas as a clinical

psychologist, as a sex-offender treatment provider, and as a marriage and family therapist. He also

testified that he obtained a Ph.D. in psychology and a Master’s degree in public health, and that had

been a practicing psychologist for almost fifty years. Further, nothing in the record indicates that if

the trial court had conducted a hearing on reliability, the evidence supporting Dr. Shinder’s opinion

would have been shown to be unreliable. See In re J.F.C., 96 S.W.3d 256, 284 (Tex. 2002).

Appellant also contends that her trial counsel was ineffective because he did not

ensure that voir dire proceedings were on the record, but she offers no explanation of what error

8 would have been shown if the record had been taken.6 See In re M.S., 115 S.W.3d at 545–46

(rejecting claim that trial attorney provided ineffective assistance based on his failure to obtain

record of voir dire, charge conference, and closing arguments without showing “what errors would

have been recorded if a record had been made”).

Appellant further contends that her trial counsel was ineffective because he did not

make a motion to strike references to her conviction and because he did not make various objections

during trial. She complains specifically that counsel did not object to: (1) Dr. Shinder’s

qualifications by raising a Daubert challenge; (2) the court stating that Dr. Shinder was an expert and

that Dr. Shinder was qualified as an expert in the presence of the jury; (3) the court exempting Dr.

Shinder from the Rule; (4) the pretrial admission of Dr. Shinder’s report as hearsay; (5) hearsay and

improper predicate when Dr. Shinder testified about statements he read in the transcript of

Appellant’s criminal trial; and (6) Dr. Shinder’s testimony referring to undisclosed reports about

convicted sex offenders. She contends that Dr. Shinder’s testimony was the only evidence linking

her actions with potential danger to her children, and without the evidence he provided, the

Department would have been unable to support the grounds for termination of her parental rights.

However, nothing in the record shows the basis for counsel’s decisions not to take

the complained-of actions. Because the record is silent as to the reasons for counsel’s conduct, we

may not speculate to find counsel’s performance deficient. See Walker, 312 S.W.3d at 623 (“We

may not speculate to find trial counsel ineffective when the record is silent regarding counsel’s

6 We note that an entry on the judge’s docket sheet for the first day of trial reflects that voir dire proceedings were on the record: “voir dire was conducted (record made).”

9 reasons for his actions.”). Without evidence about strategic reasons for trial counsel’s behavior,

Appellant fails to overcome the strong presumption that counsel’s conduct fell within the wide range

of reasonable professional assistance. See In re M.S., 115 S.W.3d at 545; see also Strickland,

466 U.S. at 689.

Even if we were to assume that trial counsel’s performance was deficient for the

complained-of reasons, nothing in the record shows that but for counsel’s allegedly unprofessional

errors, the result of the proceedings would have been different. See In re M.S., 115 S.W.3d at

549–50; see also Strickland, 466 U.S. at 694. The uncontroverted evidence at trial showed that

Appellant was arrested for sexual assault of a child and that she was currently incarcerated in the

Texas prison system. Appellant herself testified that she was arrested for sexual assault of a child,

that her children were living with her at the time, and that her children were removed from her

because of that arrest. Appellant then invoked her Fifth Amendment privilege not to testify when

asked whether she was charged with having a sexual relationship with a girl named S., where her

children were when she was in bed with her boyfriend and S., and how long she was going to be in

prison. The jury was instructed that it could draw inferences about what Appellant’s testimony

might be because of her invocation of the Fifth Amendment privilege. See Baxter v. Palmigiano,

425 U.S. 308, 318 (1976) (concluding that Fifth Amendment does not forbid adverse inferences

against parties to civil actions when they refuse to testify in response to probative evidence offered

against them); In re V.J.G., No. 07-12-00541-CV, 2013 Tex. App. LEXIS 3493, at *8 n.3 (Tex.

App.—Amarillo Mar. 26, 2013, no pet.) (mem. op.) (noting, in appeal from order terminating

parental rights, that “[i]n a civil case, the fact finder is free to draw negative inferences from a party’s

10 assertion of the privilege against self-incrimination”); see also In re J.D., 436 S.W.3d 105, 118 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (“[A] fact finder may infer that past conduct endangering

the well-being of a child may recur in the future if the child is returned to the parent.”); In re D.J.W.,

394 S.W.3d 210, 220 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (concluding that parental

conduct occurring before and after child has been removed by Department may be considered in

determining whether termination is justified).

The jury also heard from Tracey Scott, the children’s conservatorship worker, who

testified that the five older children were doing very well in foster care, that they were happy,

learning to play musical instruments, and doing well in school. She also testified that the youngest

child was doing very well with his foster family, meeting all developmental milestones, and had

never known Appellant as his biological mother. Scott noted that both sets of foster parents want

to adopt the children in their care, and that it would be in the best interest of the children to terminate

Appellant’s parental rights.

The children’s guardian ad litem, Carla Wright, told the jury that she was concerned

about Appellant’s ability to be protective of her own children, about Appellant’s poor judgment and

irresponsible life decisions in the past, and about the type of man that Appellant would choose to

have around her children when Appellant gets out of prison. Wright further testified that Appellant’s

children were doing “fantastic” and “very happy” with their foster parents who provide them with

stability, permanency, and love, and that no family members came forward to take the children. Five

of the children were in the same foster home and the youngest child is in a foster home nearby to

maintain sibling contact. Both sets of foster parents want to adopt the children. Ultimately, Wright

11 concluded that the children should be freed for adoption, and that it was in the children’s best interest

Given this record, we find no ineffective assistance of counsel warranting reversal.

We overrule Appellant’s second issue.

CONCLUSION

We affirm the district court’s decree of termination.

Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: November 1, 2018