in the Interest of E.E.L.

• Court: Court of Appeals of Texas
• Decided: November 1, 2012
• Docket: 09-12-00222-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont ________________

NO. 09-12-00222-CV ____________________

IN THE INTEREST OF E.E.L.

On Appeal from the County Court at Law Polk County, Texas Trial Cause No. PC05037

MEMORANDUM OPINION

A jury found, by clear and convincing evidence, that grounds exist for the

termination of C.H.’s parental rights to the child E.E.L., and that termination is in the best

interest of the child. See Tex. Fam. Code Ann. § 161.001(1),(D),(E),(N),(O), (2) (West

Supp. 2012). The jury also found, by a preponderance of the evidence, that it is in E.E.L.’s

best interest that the Texas Department of Family and Protective Services be appointed

E.E.L.’s managing conservator and that G.B., the child’s grandmother and intervenor in

the suit, not be named a possessory conservator of E.E.L. Both C.H. and G.B. appeal the

trial court’s judgment.

C.H.’s court-appointed appellate counsel submitted a brief. The brief provides

1 counsel’s evaluation of the record and applicable case law. He concludes that there are no

arguable grounds to be advanced on appeal. See Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re L.D.T., 161 S.W.3d 728, 731 (Tex.

App.—Beaumont 2005, no pet.). This Court has reviewed counsel’s brief and the trial

court record, and we agree with counsel’s conclusion that no arguable grounds for appeal

by C.H. exist.1

G.B. filed a pro se brief on appeal. She maintains that she should have been granted

a trial separate from C.H. Rule 174(b) of the Texas Rules of Civil Procedure allows a trial

court to order a separate trial “in furtherance of convenience or to avoid prejudice[.]” Tex.

R. Civ. P. 174(b). To preserve a complaint for appellate review, a party must first

demonstrate that the complaint was made to the trial court by a timely request, objection, or

motion. Tex. R. App. P. 33.1(a)(1). Under the circumstances, this rule applies to the

preservation of G.B.’s constitutional claim of denial of due process. See Dreyer v. Greene,

871 S.W.2d 697, 698 (Tex. 1993); Segovia v. Tex. Dep’t of Protective and Regulatory

Servs., 979 S.W.2d 785, 788 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). By

failing to bring her complaint to the trial court’s attention and obtain a ruling, G.B. has

failed to preserve this issue for our consideration. Any alleged error is waived. Tex. R.

1 In connection with withdrawing from the case, appellate counsel shall inform C.H. of the result of this appeal and that she has a right to file a petition for review with the Texas Supreme Court. See Tex. R. App. P. 53; In re K.D., 127 S.W.3d 66, 68 n.3 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

2 App. P. 33.1(a); see generally In re B.L.D., 113 S.W.3d 340, 344-45 (Tex. 2003).

G.B. challenges the trial court’s admission of the videotape and the trooper’s

testimony regarding her arrest for driving while intoxicated. G.B. did not object to the

trooper’s testimony at trial. She did not preserve the issue for review. Tex. R. App. P.

33.1(a). On appeal, G.B. argues the trial court should not have admitted the videotape

because the depiction of her arrest was irrelevant to the case and “happened long before

E.E.L. was born[,]” and “there was no conviction and the case was dropped.” G.B. objected

at trial that the State did not provide her a copy of the videotape during discovery. G.B.’s

trial objection was not the same as the issue she now raises on appeal. See id.; In re

C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.); see also generally

In re C.Q.T.M., 25 S.W.3d 730, 736 (Tex. App.—Waco 2000, pet. denied) (“[T]he general

rule prohibiting the admission of res inter alios acts must bow in suits affecting the

parent-child relationship, particularly insofar as the best interest of the child is at stake.”).

G.B. cites no authority supporting a claim that a non-parent seeking conservatorship and

access may raise ineffective assistance as a ground for reversal when there is no statutory

or constitutional right to counsel and when counsel was not appointed by the trial court. See

Tex. Fam. Code Ann. § 107.013(a)(1), (c) (West Supp. 2012); In re G.J.P., 314 S.W.3d

217, 222-23 (Tex. App.—Texarkana 2010, pet. denied); In re M.J., No. 09-09-00355-CV,

2010 Tex. App. LEXIS 6272, at **10-11 (Tex. App.—Beaumont Aug. 5, 2010, no pet.)

(mem. op.).

3 We read G.B.’s brief as challenging the sufficiency of the evidence supporting the

jury’s findings that the Department should be appointed E.E.L.’s sole managing

conservator and that G.B. should not be named a possessory conservator of E.E.L.

Although G.B. had taken care of E.E.L. from E.E.L.’s birth to the date of removal and

desired appointment as either E.E.L.’s possessory or sole managing conservator, the

evidence raised fact issues regarding whether G.B. could adequately care for E.E.L. The

jury heard evidence that at around eight months old, E.E.L. was removed by the

Department after a report concerning the parents’ mental health and drug use. The

Department did not place E.E.L. with G.B. for various reasons: the Department was

concerned that G.B. used E.E.L. to manipulate the parents; several reports had been made

to Adult Protective Services regarding G.B.; and G.B. had health issues.

A witness for the Department explained that G.B. would allow C.H. to come get

E.E.L. even though G.B. knew C.H. had mental health issues and G.B. knew the history of

domestic abuse between the parents. The jury heard evidence that C.H. had reported in the

past that she had been sexually abused as a child by one of G.B.’s boyfriends. The

Department refused to let G.B. transport E.E.L. during unsupervised visits because records

showed a history of driving while intoxicated. The caseworker explained that even though

records showed the DWI was dismissed, the Department was still concerned because of the

“potential for there being a problem with alcohol and drugs.”

The Department caseworker assigned after E.E.L.’s removal testified that the

4 Department had requested that G.B. obtain a written letter from her doctor confirming that

G.B., despite her medical condition and medications, could safely care for E.E.L. on a

twenty-four-hour basis. G.B. provided the caseworker with a letter from her treating

physician with a list of her medications and a statement that her medical condition was

controlled.

The jury heard the caseworker’s testimony that if parental rights were terminated it

would not be in E.E.L.’s best interest to continue having contact with G.B., even though

G.B. cares for E.E.L. and the caseworker had never seen G.B. harm E.E.L. A supervisor

testified that the Department’s recommendation was that parental rights should be

terminated, and that unrelated adoption would be in E.E.L.’s best interest. The Department

believed that, because of E.E.L.’s young age, placement with G.B. would risk E.E.L.’s

safety. The supervisor felt that it is in E.E.L.’s best interest to have no contact with G.B.

A supervisor with Adult Protective Services testified that APS received five

“intakes” regarding G.B. One intake from 2007 was an allegation that G.B. could not

afford her mental-health medications and was not taking them. Another intake was in 2008

when G.B. was in Tyler at the Salvation Army where she sought housing assistance and

complained that she became confused because of her history of seizures and memory loss.

One report listed her disabilities as congestive heart failure, epilepsy seizures, neuropathy,

chronic asthma, chronic bronchitis, and COPD.

G.B. testified that she allowed C.H. to drop out of school at seventeen, to be

5 home-schooled for about six months, and then to move in with E.E.L.’s father at around

eighteen. G.B. stated that one of her boyfriends and a cousin had sexually abused C.H.

when she was a child. As far as the medications listed by G.B.’s physician, G.B. claimed

that although the physician’s letter stated that one of the prescriptions was for the treatment

of bipolar disorder, G.B. was not aware she had ever been diagnosed with bipolar disorder.

She stated that the prescription was to treat a nerve problem in her back. She denied having

a drinking problem but admitted that she has been drinking on occasion since E.E.L.’s

removal but does not “get intoxicated that much.” G.B. testified that, even though she is

aware of the way her prescription medications interact with alcohol, “every now and then”

she gets “overwhelmed with [E.E.L.’s] being gone” and “tr[ies] to cover up the pain” with

drinking.

In 2006, G.B. pleaded guilty to altering a prescription for hydrocodone by changing

the amount prescribed. She admitted being convicted for public intoxication after E.E.L.

was removed. G.B. explained that when C.H. was seven months pregnant with E.E.L. and

living with G.B., they were together in a car in which an officer found marijuana. G.B.

“took the rap to keep [her] daughter from going to jail.” G.B. testified that although it

bothered her, she would allow C.H., prior to E.E.L.’s removal, to come take E.E.L when

C.H. was “messed up” on drugs.

Trooper Akers testified that, while on patrol in May 2009, he arrived at the scene of

a one-vehicle accident. G.B. was the driver. Akers testified G.B. had bloodshot eyes. He

6 smelled alcohol. G.B. told him that after she had consumed four mixed drinks, she had

gone to her daughter’s house. When her daughter would not let her stay, G.B. left. She ran

off the road, and hit a mailbox, a cement culvert, and a parked car in a driveway. G.B. was

unable to pass the field sobriety tests. She refused a portable breath test and Akers arrested

her. While conducting a vehicle inventory, a deputy found medication in G.B.’s car. At the

sheriff’s office, G.B. agreed to take a breathalyzer test. She admitted she was intoxicated.

The arrest did not result in a conviction because the state filed a motion to dismiss based on

invalid intoxilyzer results.

G.B.’s treating physician testified by phone. He testified to G.B.’s medications and

explained that G.B. had been diagnosed with bipolar disorder a long time ago, and that she

had previously been under the care of a psychiatrist and neurologist. Although the

physician testified that G.B.’s health issues were under control, he stated that if someone

taking the same medications as G.B. also consumed alcohol, he or she would not be able to

care for a young child. He testified that he has treated G.B. for “8 to 10 years, if not

more[,]” and that G.B. had never reported to him that she drinks alcohol. He stated that if

he knew that she did, he would not prescribe her medications.

The child’s foster mother testified that E.E.L. has been with her almost a year and a

half. E.E.L. was developmentally behind but has improved while in foster care. The foster

mother is a pre-kindergarten teacher and has adopted another toddler through CPS. The

foster mother testified that she did not want to think about adopting E.E.L. “until

7 everything is settled[,]” because C.H.’s parental rights had not been terminated.

Hypothetically, if the court terminated C.H.’s parental rights, the foster mother testified it

is possible that she would be interested in adopting E.E.L.

The record contains evidence showing that the Department could provide E.E.L.

with a safe home where she would receive adequate care. There is also evidence from

which the jury could reasonably conclude that G.B. could not. The evidence was sufficient

to allow the jury to reasonably conclude that E.E.L.’s best interest would be served by

making the Department the sole managing conservator of E.E.L. and that it is not in

E.E.L.’s best interest to make G.B. possessory conservator. We conclude the evidence is

sufficient to support the jury’s verdict. The appellate issues are overruled. The trial court’s

judgment is affirmed.

AFFIRMED.

_________________________________ DAVID GAULTNEY Justice

Submitted on August 17, 2012 Opinion Delivered November 1, 2012

Before McKeithen, C.J., Gaultney and Horton, JJ.