in the Interest of K.D.L.

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 09-14-00348-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00348-CV ____________________

IN THE INTEREST OF K.D.L.

_______________________________________________________ ______________

On Appeal from the County Court at Law Polk County, Texas Trial Cause No. PC05671 ________________________________________________________ _____________

MEMORANDUM OPINION

In this parental rights termination case, M.D.L. (Father) appeals from a

judgment that terminated his parental rights to K.D.L. 1 Father raises five issues. In

his first issue, he alleges he received ineffective assistance of counsel during the

trial. In issues two through four, Father challenges the legal and factual sufficiency

of the evidence to support the statutory grounds utilized to terminate his parental

rights. Finally, in issue five, Father challenges the finding that termination is in the

best interest of K.D.L. We affirm the judgment of the trial court.

1 At the time of the trial, K.D.L. was nineteen months old. 1 Background

The Texas Department of Family and Protective Services filed a petition for

termination and obtained an order of removal when K.D.L. was approximately one

month old, following Father’s arrest for assaulting K.D.L.’s mother (Mother).

Mother signed an affidavit of relinquishment after a monitored return failed. 2 The

jury found by clear and convincing evidence that termination of Father’s rights to

K.D.L. was in the child’s best interest and that Father’s parental rights should be

terminated on the grounds that Father (1) knowingly placed or knowingly allowed

K.D.L. to remain in conditions or surroundings which endangered the child’s

physical or emotional well-being, (2) engaged in conduct, or knowingly placed

K.D.L. with persons who engaged in conduct which endangered the child’s

physical or emotional well-being, and (3) failed to comply with the provisions of a

court order that specifically established the actions necessary for the parent to

obtain the return of K.D.L. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O),

(2) (West 2014). The trial court terminated Father’s parental rights to K.D.L. in a

judgment signed on August 21, 2014. Father filed a motion for new trial without a

supporting affidavit. In his motion, Father complained about his trial counsel’s

2 At the time, Mother had two children. M.D.L. is the father of K.D.L. but not the other child. Mother relinquished her parental rights as to both children and the Department placed both children together with the same foster family. 2 failure to cross-examine witnesses on unspecified “relevant factual issues[,]” and

also about the failure to call any witnesses. The trial court denied the motion for

new trial without conducting a hearing.

Ineffective Assistance of Counsel

The statutory right to counsel for an indigent parent in a termination

proceeding “embodies the right to effective counsel.” In the Interest of M.S., 115

S.W.3d 534, 544 (Tex. 2003); see also Tex. Fam. Code Ann. § 107.013(a) (West

2014). 3 To prevail on a claim of ineffective assistance of counsel, the appealing

party must show that counsel’s performance was deficient and that counsel’s errors

were so serious as to deprive the parent of a fair trial with a reliable result. See

M.S., 115 S.W.3d at 545 (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). To determine whether counsel performed in a reasonably effective

manner, we must take into account all of the circumstances surrounding the case,

and “we must give great deference to counsel’s performance, indulging ‘a strong

presumption that counsel’s conduct falls within the wide range of reasonable

3 Neither an affidavit of indigence nor an order appointing counsel appears in the clerk’s record. The temporary order following the adversary hearing reflects that trial counsel appeared at the hearing, but does not state whether counsel was appointed or retained. During the trial, Father testified that he has monthly expenses of $280 on monthly earnings of $3,000. Because trial counsel’s motion to withdraw states that he was appointed by the court, we assume he was appointed as counsel for an indigent parent under section 107.013 of the Texas Family Code. 3 professional assistance,’ including the possibility that counsel’s actions are

strategic.” See id. (quoting Strickland, 466 U.S. at 689). We cannot speculate about

counsel’s rationale from a silent record. In the Interest of S.J.T.B., No. 09-12-

00098-CV, 2012 WL 5519208, at *11 (Tex. App.—Beaumont Nov. 15, 2012, no

pet.) (mem. op.). To determine prejudice, we consider whether “‘there is a

reasonable probability that, but for counsel’s unprofessional error(s), the result of

the proceeding would have been different.’” M.S., 115 S.W.3d at 550 (quoting

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) and Strickland, 466

U.S. at 687).

In his brief on appeal, Father complains that his trial counsel failed to object

to testimony about past incidents of violent behavior by Father that were not

directed toward K.D.L. However, he fails to identify any clearly inadmissible

evidence that would have been excluded if subjected to a valid objection by

counsel. He argues that counsel should have objected to evidence of violence by

Father that was not directed toward K.D.L. However, “endangering conduct is not

limited to actions directed towards the child.” In the Interest of J.O.A., 283 S.W.3d

336, 345 (Tex. 2009). Evidence of endangering conduct may include the parent’s

actions before the child’s birth, and may include incidents of domestic violence. Id.

at 345-46.

4 In this case, the evidence of Father’s violent conduct was probative of the

issues before the jury. Mother testified that she left Father because he physically

abused her on several occasions. She stated that she obtained a protective order

against Father, and he violated the order. According to Mother, Father was abusive

only when he drank alcohol, and that he drank alcohol several times a week.

Mother recalled four incidents of physical violence by Father against her, including

one time when he broke a window and he was charged with criminal trespass.

Mother also described an argument that occurred shortly after they

separated, when Father was staying at a hotel and Mother brought K.D.L. to visit

Father. Angered because Mother did not want Father to keep K.D.L. overnight,

Father became violent and broke the cell phone Mother was using and came after

Mother. Mother left K.D.L. with Father for the visit because she thought there was

nothing else she could do. Father later called Mother and promised he would let

Mother have K.D.L. back if Mother returned that evening and talked to him.

Mother testified that when she returned, Father slammed her onto the bed and held

her by the throat, then pushed her against a wall and punched the wall beside her

head, causing an abrasion to her face in the process. Mother stated she went to the

police station to file a report, and the officer returned with her to Father’s motel

5 room and arrested Father on an outstanding assault charge involving a different

female.

Father admitted he “put [Mother] against the wall” and “hit above her head

and put an indention in the wall,” and he admitted that he choked Mother, but he

denied that their argument was about Mother wanting to leave with K.D.L. In a

non-responsive answer to a question about assaulting Mother, Father identified the

name of the assault victim for the charge that resulted in his arrest at the motel and

added that he also had gotten in a fight with another person. Father stated that he

spent two months in jail for violating Mother’s protective order. He also admitted

to arrests for assaulting three other people, including the mother of his other child,

while she claimed to be pregnant. Father admitted, “I pled guilty on every one.”

Counsel sought to lessen the impact of the evidence of Father’s violent

behavior toward Mother, by developing testimony that K.D.L. was asleep when he

punched the wall next to Mother’s head, and that the assault he was arrested for at

the motel occurred before K.D.L.’s birth. Father admitted he violated Mother’s

protective order, but he claimed that Mother initiated the contact. Father stated that

since K.D.L.’s birth, Father has pled guilty to three different misdemeanor

offenses. However, he told the jury that he had not committed any new offenses in

the last year. During the trial, Father was arrested for assault as a result of a fight

6 he had with his brother. The Department called Father back to the stand on the

second day of the trial to question him about the assault on his brother. This

evidence was relevant to the credibility of his testimony the previous day, when he

claimed he had stopped committing offenses and had “done everything right,” that

his “anger problem” is “obviously not bad[,]” and “I’ve been doing all my stuff

that I need to do. And I haven’t been getting mad about nothing, getting into no

fights or anything like that.”

Father also complains that his counsel failed to object to testimony by the

daughter-in-law of K.D.L.’s foster parents. She stated that she and her husband

wanted to adopt K.D.L. and K.D.L.’s half-brother. Father argues that trial counsel

should have objected to the daughter-in-law’s testimony that she and her husband

became a foster-adoptive home in Oklahoma, where they live, strictly for the

purpose of adopting Mother’s two children. Father argues this evidence was

prejudicial because the jury might believe that a family was immediately available

if Father’s rights were terminated. Counsel’s failure to object does not demonstrate

deficient performance, however, because the record does not show that this

evidence was unfairly prejudicial. See Tex. R. Evid. 403.

Pointing to an instance where the trial judge cautioned the child’s ad litem

attorney about an argumentative question, Father contends trial counsel should

7 have objected to this “line of questioning.” The trial court may exercise reasonable

control over the mode of interrogating witnesses. See Tex. R. Evid. 611(a). On this

record, we conclude that trial counsel could, in the exercise of a reasonable trial

strategy, decide that the trial court was exercising adequate control and that an

objection was unnecessary.

With respect to the failure of Father’s trial counsel to call any witnesses,

Father concedes that the record is silent about why counsel did not call any

witnesses. But, he suggests the trial court should have conducted an evidentiary

hearing on Father’s motion for new trial. Father did not request an evidentiary

hearing on his motion for new trial, and the trial court could reasonably conclude

that an evidentiary hearing was unnecessary. Without knowing what evidence

could have been developed at a hearing, if one had been requested, we cannot

determine whether counsel’s failure to call witnesses to testify for Father

prejudiced his defense. See S.J.T.B., 2012 WL 5519208, at *11.

The record does not reveal that trial counsel’s performance was deficient or

that Father was deprived of a fair trial as a result of counsel’s alleged

unprofessional errors. See M.S., 115 S.W.3d at 545. We overrule issue one.

8 Legal and Factual Sufficiency

“The decision to terminate parental rights must be supported by clear and

convincing evidence.” In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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 established.” Tex. Fam. Code Ann. § 101.007 (West 2014). A

judgment will be affirmed if a parent committed one or more predicate acts or

omissions and termination is in the child’s best interest. See Tex. Fam. Code Ann.

§ 161.001 (West 2014); see also J.L., 163 S.W.3d at 84.

In reviewing the evidence for legal sufficiency, we consider “‘all the

evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.’” J.L., 163 S.W.3d at 84-85 (quoting In the Interest of J.F.C., 96

S.W.3d 256, 266 (Tex. 2002)). We assume a factfinder resolved any disputed facts

in favor of its finding, if a reasonable factfinder could do so, and “‘disregard all

evidence that a reasonable factfinder could have disbelieved[.]’” Id. (quoting

J.F.C., 96 S.W.3d at 266). When we review a termination of parental rights for

factual sufficiency, we give “due consideration” to any evidence that the factfinder

could reasonably have found to be clear and convincing. J.F.C., 96 S.W.3d at 266;

9 see also In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider the

disputed evidence and determine whether a reasonable factfinder could have

resolved that evidence in favor of the finding. J.F.C., 96 S.W.3d at 266.

Grounds for Termination

Mother testified that Father has a drinking problem and he becomes violent

and verbally abusive when he is consuming alcohol. Father admitted that he

physically assaulted Mother, that he pled guilty and served jail time for the assault,

and that he later went to jail for violating the protective order that Mother obtained

against him.

The physical abuse of the child’s other parent can support a finding of child

endangerment under section 161.001(1)(E) of the Texas Family Code. In the

Interest of A.G.F., No. 09-13-00452-CV, 2014 WL 580736, at *3 (Tex. App.—

Beaumont Feb. 13, 2014, no pet.) (mem. op.); In the Interest of C.A.B., 289 S.W.3d

874, 886 (Tex. App.—Houston [14th Dist.] 2009, no pet.); In the Interest of

C.E.K., 214 S.W.3d 492, 496-97 (Tex. App.—Dallas 2006, no pet.). Abusive or

violent conduct by a parent or other resident of a child’s home can constitute a

condition that endangers the child’s physical or emotional well-being within the

meaning of section 161.001(1)(D), because violence in a home is part of the

“conditions or surroundings” of a child living in that home. In the Interest of

10 C.L.C., 119 S.W.3d 382, 392-93 (Tex. App.—Tyler 2003, no pet.); In the Interest

of I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.); In the Matter

of B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). The jury

could form a firm belief or conviction that by physically abusing Mother, Father

endangered K.D.L. and placed K.D.L. in conditions or surroundings which

endangered K.D.L.’s physical or emotional well-being. See Tex. Fam. Code Ann. §

161.001(1)(D), (E).

Evidence that may weigh against a finding of endangerment includes

Mother’s statement that she received only minor injuries in the assault in the motel

room and her testimony that Father “barely touched” her when he punched the

wall, as well as Father’s testimony that K.D.L. was asleep on the bed on the other

side of the room when he assaulted Mother. Nevertheless, based upon the other

evidence in the record the jury could reasonably conclude that Father engaged in

an endangering course or pattern of conduct when considering the incident in the

hotel room and the other choking incidents, the multiple assaults causing minor

injuries and property damage, violations of the protective order, the incarcerations

that Father experienced as a consequence of his criminal conduct, and his assaults

upon others. Accordingly, we conclude that the evidence that may weigh against

termination is not so significant that a reasonable jury could not have reconciled

11 the evidence in favor of finding endangerment. J.F.C., 96 S.W.3d at 266. We

overrule issues two and three.

The jury also found that Father failed to comply with the court-ordered

family service plan. See Tex. Fam. Code Ann. § 161.001(1)(O). Father argues that

the Department failed to prove he failed to comply with the court-ordered service

plan because Father’s signature does not appear on the Family Service Plan that

was admitted into evidence at the trial.

Although the service plan that appears in the record is not signed by Father,

the existence of the plan and Father’s notice of and participation in the plan was

undisputed at trial. K.D.L.’s caseworker testified that she met Father in the jail, and

Father stated that he would cooperate with the Department after he finished serving

his jail sentence. Father contacted her after his release, and she set up services for

him in accordance with the Family Service Plan. Mother and Father had similar

service plans, although Father was required to take anger management due to his

history of assault. The caseworker referred Father to parenting classes and

counseling, and informed Father that he was required to go to a particular facility

for an Alcohol Drug Abuse Council (ADAC) assessment.

Father testified that he started working on the service plan as soon as he got

out of jail. He testified he kept employment with one company or another from his

12 release until trial. He stated that he took six of the required eight parenting classes,

went to counseling, and took anger management classes. Father admitted that he

failed to undergo an ADAC assessment, and admitted he failed to meet the service

plan requirement to get stable housing. Father stated that he never found stable

housing because he was always traveling for his work. He told the jury he was

staying with relatives at the time of the trial, but he admitted he was almost never

there.

Section 161.001(1)(O) “looks only for a parent’s failure to comply with a

court order, without reference to [the] quantity of failure or degree of compliance.”

In the Interest of D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.).

Father admitted that the service plan required his participation in an ADAC

assessment, required completion of eight parenting classes, and required him to

obtain and maintain safe and appropriate housing. He admitted that he failed to

meet each of those requirements. Accordingly, the jury could form a firm belief or

conviction that Father failed to comply with the provisions of a court order that

specifically established the actions necessary for Father to obtain the return of

K.D.L. See Tex. Fam. Code Ann. § 161.001(1)(O). Therefore, we conclude that the

jury’s finding with regard to section 161.001(1)(O) is supported by legally and

factually sufficient evidence. We overrule issue four.

13 Best Interest

Regarding the child’s best interest, a court considers a non-exhaustive list of

factors when determining what is in the best interest of the child and in

determining whether the child’s parents are willing and able to provide the child

with a safe environment: (1) desires of the child; (2) emotional and physical needs

of the child now and in the future; (3) emotional and physical danger to the child

now and in the future; (4) parental abilities of the individual seeking custody; (5)

programs available to assist this individual to promote the best interest of the child;

(6) plans for the child by this individual or by the agency seeking custody; (7)

stability of the home or proposed placement; (8) 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); see also Tex. Fam. Code Ann. § 263.307(b) (West 2014).

Father entered the foster care system at age ten and remained there while his

mother was in prison until he aged out of the foster care system in 2006. Mother

testified Father was abusive to Mother, but Mother described Father as a “good

dad[,]” even though she stated she had never seen him “be a full-time dad.” Mother

stated that Father was attentive when he was with the children. Father denied

having a problem with alcohol, but according to Mother, Father drank frequently

14 and to excess. And, when he was intoxicated Father became emotionally and

physically abusive. Facebook posts showing Father with alcohol and joking about

how much alcohol he consumed, and his arrest for fighting the evening between

the two days of the trial, demonstrated Father continued to drink alcohol and had

an ongoing problem with getting into fights. Accordingly, a reasonable jury could

have disbelieved Father’s testimony that he had stopped drinking and fighting, and

could have discounted Mother’s testimony that Father was an attentive parent

when he was with her children.

As a consequence of his incarceration and K.D.L.’s removal, Father had

little opportunity to bond with K.D.L. He accomplished five one-hour visits in the

first eight months of 2014. On the other hand, the record demonstrated that K.D.L.

has bonded with the foster family with whom she and her four-year-old half-

brother had been living for approximately ten months at the time of trial. Her foster

father stated that in the children’s minds, their foster parents were their

grandparents. He said it would affect the children if they were separated. The foster

parents and their adult son and his wife were both interested in adopting the

children.

The Department considered Father’s sister for K.D.L.’s placement, but the

sister did not respond to the Department’s request for information. The

15 Department’s goal is unrelated adoption. Mother stated that her children were

“doing really great” in their current foster placement and she decided to relinquish

her rights so her children would not be “bouncing around through CPS[.]” Father

testified that if K.D.L. were returned to him he would ask his aunt to help him until

he could get “on [his] feet[,]” at which time he would then “rent a place.” Father

told the jury he gave the Department the names of several family members who

could pass a background check to obtain placement through the Department, but to

his knowledge the Department never followed up on that information.

Father admitted he paid no child support for K.D.L. Father testified to

monthly earnings of about $3,000 per month at his current employment, which he

had held for three months at the time of the trial. He testified that he paid $280 per

month in child support for his other child with another woman. At the time of the

trial, Father was living with relatives; and, he did not own a vehicle or maintain a

driver’s license. When asked why he did not pay child support for K.D.L., he

stated it was because neither he nor Mother had custody of K.D.L.

Father suggests that his lack of parenting skills results from his childhood in

the foster care system. He argues that the record does not demonstrate that

terminating Father’s rights is in K.D.L.’s best interest because Father is neither

addicted, nor mentally challenged, nor destitute.

16 If, in light of the entire record, no reasonable juror could form a firm belief

or conviction that termination was in K.D.L.’s best interest, then the court must

conclude that the evidence is legally insufficient. See J.F.C., 96 S.W.3d at 266.

Father’s failure to complete services and other counseling, as well as his continued

alcohol use and violent behavior, along with other evidence in the record, weighs

strongly in favor of termination. Father denied alcohol abuse, but the testimony in

the record indicates his relationship with Mother ended because he had a drinking

problem and abused her physically. Additionally, Father admitted he assaulted the

mother of his other child, and he had assaulted other people. Father had stable

employment when he was not incarcerated, but he made no effort to provide for

K.D.L. financially. Father’s lack of concrete plans at the time of trial to care for

K.D.L., the evidence of the Department’s success in obtaining a stable

environment for K.D.L. with the current foster family, and the demonstrated

instability of Father’s lifestyle and his relationships also weigh heavily in favor of

termination.

Considering the Holley factors and the evidence at trial, we conclude the

jury could reasonably form a firm belief or conviction that termination of Father’s

parent-child relationship with K.D.L. is in the child’s best interest and that the

evidence to the contrary is not so significant that a factfinder could not reasonably

17 form a firm belief or conviction that termination is in K.D.L.’s best interest. See

id.; Holley, 544 S.W.2d at 371-72. We conclude that the evidence at trial, including

the evidence summarized above, is legally and factually sufficient to support the

jury’s finding. We overrule issue five.

Conclusion

Having concluded that the evidence is legally and factually sufficient to

support the judgment that M.D.L.’s parental rights to K.D.L. should be terminated,

and that the record does not support a conclusion that ineffective representation by

trial counsel prejudiced Father and deprived him of a fair trial and just result, we

affirm the trial court’s judgment.

AFFIRMED.

________________________________ LEANNE JOHNSON Justice

Submitted on October 29, 2014 Opinion Delivered November 6, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.