In the Interest of A. M. M. and A. M., Children--Appeal from 62nd District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00039-CV

______________________________

IN THE INTEREST OF A.M.M.

AND A.M., CHILDREN

On Appeal from the 62nd Judicial District Court

Lamar County, Texas

Trial Court No. 71868

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Tonia McMikel appeals from a jury's verdict terminating her parental rights to A.M.M. and A.M. She contends her case should be reversed due to several alleged errors: (1) the State's improper use of the term "abortion"; (2) the trial court abused its discretion by refusing to allow her to present evidence from material, undisclosed, witnesses; (3) the evidence was legally and factually insufficient to support the judgment of termination; (4) the trial court erred by refusing to grant her a directed verdict because the Texas Department of Protective and Regulatory Services' (Department) failures in processing her case violated the Americans with Disabilities Act (A.D.A.); (5) ineffective assistance of counsel; and (6) in denying McMikel a separate trial from her husband.

We overrule the contentions of error and affirm the judgment of the trial court.

Factual Background

The record shows that McMikel is an alcoholic and that her blood alcohol level has been measured on several occasions at lethal or near-lethal levels. // Largely because of her alcoholic episodes and secondarily because of claims of spousal abuse, the family, including McMikel, these two children, and her husband, have been involved with the Department since May 2000. On one occasion, immediately after giving birth to A.M., in late 2003, McMikel completed an alcohol intervention program in Lufkin, and after sixty days was allowed to bring the children home. However, she was thereafter found drinking while the children were in day care, and they were removed from the home March 11, 2004.

In the meantime, McMikel had been convicted in September 2001 for felony driving while intoxicated (D.W.I.), a second time May 22, 2004, and a third time September 4, 2004, and also for endangerment of a child for the incident at the park in September 2003. McMikel was sentenced to four years in prison. Her sentence commenced in October 2004, and she was incarcerated at the time of this proceeding. Between the birth of A.M.M. in October 1999, and A.M. in October 2004, McMikel had a nineteenth-week miscarriage at home // and delivered a premature baby that lived for thirteen days.

During the five-year time period that McMikel and the Department were interacting, McMikel was referred to various alcohol control programs. The results were, in some cases, temporarily effective, but no lasting alteration in her behavior was ever apparent.

Reference to "Abortion"

McMikel first contends the termination should be reversed because on two occasions during the trial, the Department's questions to her husband stated that McMikel had aborted the child at home.

Q.CPS was involved for the second time in January of 2002. Does that sound about right?

A.Yes, sir.

Q.That was when your wife aborted a child at home?

A.Yes, sir, it was.

Q.Nineteen week old fetus at home.

A.Yes.

Q.She was intoxicated when that happened, correct?

A.I don't really know.

Q.Blood alcohol is .283?

[Wife's Counsel]:Objection. Use the term aborted. It [sic] was absolutely no evidence from any source that the child was aborted. It was a miscarriage.

[State]:Miscarriage.

[Wife's Counsel]:Talk about that, it's certainly improper and we would ask for a Court instruction for the jury to disregard.

[Husband's Counsel]:We second that objection, Your Honor. Aborted clearly is implying that there is affirmative action taken on the part of the person.

THE COURT:Okay. I'll let you rephrase the question.

Q.[State] I'll rephrase the question, sir. Your wife had a miscarriage of a 19 week old child --

Three pages later in the record, counsel again "misspoke."

Q.[State] Do you know why she aborted, wanted a counselor to talk to her about any of that? I'm sorry -- miscarriage.

A. I know she had two miscarriages, you know.

[Wife's Counsel]: Objection.

The trial court did not rule on this objection.

At a recess, after the State passed the witness, in an extended discussion, counsel asked the court for a mistrial based on the necessarily prejudicial nature of the State's suggestion twice that McMikel had aborted the child. The trial court overruled the motion.

The first question is whether this contention has been preserved for our review. The objection to the form of the question was not made until after two other exchanges had occurred. See Tex. R. App. P. 33.1(a)(1) (stating that, to preserve error for appeal, party must make timely and sufficiently specific objection in trial court). To be timely means that the objection must be made, if possible, before the evidence is admitted or, if not possible at that time, the objection must be made as soon as the ground or grounds for the objection become apparent. Kerr-McGee Corp. v. Helton, 134 S.W.3d 204, 208 (Tex. App. Amarillo 2002, no pet.); Land v. State, 890 S.W.2d 229, 234 (Tex. App. Beaumont 1994, no pet.). In this case, the objection was not made as soon as the grounds for the objection became apparent, and it is thus arguable that the complaint was not preserved for our review.

Further, McMikel did not obtain an explicit ruling on her request for an instruction to the jury. The court instead allowed the State to rephrase the question, which it promptly did without argument, to ask whether McMikel's husband was aware of the miscarriage. To be entitled to present a complaint for appellate review, the record must show a timely objection and show that the trial court ruled on the objection either expressly or implicitly. Tex. R. App. P. 33.1(a). Here, the court did not rule on the objection, but asked counsel to rephrase the previous question. The fact that McMikel did not object to this action by the court or request the trial court to take any further action could reasonably be interpreted by the trial court that its action accomplished the purpose of McMikel's objection and that McMikel was satisfied with the court's response to the objection. In these circumstances, the trial court's action cannot be interpreted as an express or implicit adverse ruling to McMikel's objection and, thus, any claim of error is waived. See Walton v. City of Longview, 855 S.W.2d 875, 880 (Tex. App. Tyler 1993, no writ). Even if the error was preserved, we recognize that, in McMikel's medical records, which were also before the jury, the proper medical term for a miscarriage of this nature was used a "spontaneous abortion." Although the term "abortion" is one that has negative connotations as the intentional termination of pregnancy, the popular use of the term is not precisely correct. In medical terminology, the word "abortion" is typically preceded by another word explaining the type of abortion involved, as in an abortion due to infection, or to accident, or, as in this case, one that is spontaneous. Thus, while the use of the word "abortion" alone may not have fully described the situation, it was not entirely inaccurate. See Dorland's Illustrated Medical Dictionary 1988 (27th ed. 1988). //

The contention of error is overruled.

Exclusion of Witnesses

McMikel next contends the court erred by refusing to permit her to call two witnesses, Bob Bush and Ray Karrer, who were both connected with programs that would be available to her, and who had visited with her during the weekend before jury selection after she was returned to Lamar County from prison. Bush and Karrer would have testified about the support programs available to McMikel while in prison and after her release. McMikel did testify about the visits of those witnesses and her anticipated use of the programs, but the court refused to allow Bush and Karrer to testify. The State was not made aware of the witnesses until trial was underway, in the midst of testimony by the next-to-last witness to be called by McMikel.

Rule 193.6 of the Texas Rules of Civil Procedure requires that witnesses who are not timely disclosed or identified be excluded unless either the party had good cause for not timely supplementing discovery responses, or the failure to timely supplement will not "unfairly surprise or unfairly prejudice the other parties." Tex. R. Civ. P. 193.6. McMikel argues only the first aspect of this rule: that good cause existed for the failure to timely supplement the response.

In support of this position, McMikel points out that the witnesses were not able to meet personally with her until she was returned to Lamar County the weekend before trial, the New Year's holiday weekend. The jury was selected January 4, 2005, and the trial began January 5, 2005.

The State points out that McMikel had known about the individuals for some time, and had known that she might call them as witnesses for at least a week before she actually attempted to offer them January 10. McMikel argued that she had good cause to present Bush's and Karrer's testimony because, contrary to the Department's arguments, Bush and Karrer would provide evidence that a support group could be available for McMikel. The trial court overruled the request, and McMikel made a bill summarizing their expected testimony.

The trial court has discretion to determine whether the offering party has met its burden of showing good cause. Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994); Pilgrim's Pride Corp. v. Smoak, 134 S.W.3d 880, 902 (Tex. App. Texarkana 2004, pet. denied). The question is whether the trial court abused that discretion by denying the request. In this case, the court was confronted by two unexpected witnesses, five days into the trial. Even assuming that McMikel did not have an opportunity to determine whether those individuals would testify until they had the opportunity to talk with her, that conversation happened over a week before McMikel attempted to call them. Under these circumstances, we cannot conclude the court abused its discretion by determining that good cause was not shown for the delay in disclosure to the time when McMikel attempted to call the witnesses.

The contention of error is overruled.

Sufficiency of the Evidence

McMikel next contends, with no citation to any controlling authority, that the evidence is legally and factually insufficient to support the verdict. She quotes the charge instructions and the jury question, and then complains the evidence does not show that she "knowingly" committed the actions complained of, due to her intoxication.

McMikel parses her argument in this fashion she first focuses on the evidence showing that the Department closed its case on her two weeks after receiving assessment and recommendations from its own expert on chemical dependency, Duane Cox without the Department having ever reviewed his assessments and recommendations with McMikel. McMikel contends that, because of the Department's "non-effort," and Cox's criticism of the Department for its failures to attempt to utilize the more stringent intervention methodology that he had recommended, the Department's efforts were inadequate. McMikel then states there was evidence she had complied with a court order (but without indicating which order was referenced, or what evidence to which she is referring) establishing the actions necessary for her to obtain the return of the children. Finally, she concludes by stating that there is no evidence she knowingly engaged in conduct that resulted in her conviction and imprisonment for D.W.I. and endangering a child due to intoxication.

In the interest of justice, we will consider the argument so far as it can be reasonably understood. //

Before a parent's right can be involuntarily terminated, the Department must prove by clear and convincing evidence that (1) the parent has committed one of several enumerated acts, and (2) termination is in the child's best interest. See Tex. Fam. Code Ann. 161.001, 161.206(a) (Vernon Supp. 2005). In reviewing the legal sufficiency of the evidence, we view all the evidence in a light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. Tex. Fam. Code Ann. 101.007 (Vernon 2002); J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). If, in light of the entire record, the disputed evidence that a reasonable trier of fact could not have credited in favor of the finding is so significant that a trier of fact could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266; In re L.C., 145 S.W.3d 790 (Tex. App. Texarkana 2004, no pet.).

Because McMikel has not argued that the evidence is legally and factually insufficient to support the second prong of the test, we address only the first prong. She has also made no effort to apply her evidentiary contention to any of the individual bases set out in the charge that would justify termination.

In this case, there is evidence that in May 2000, the Department was involved in an incident where the husband was called home from work because McMikel had lost use of one side of her body, and was shown to have a .22 blood alcohol level. In July, a domestic altercation erupted in which police were involved McMikel was also intoxicated at that time. She was directed to participate in services offered by the Department, which she did until April 21, 2001, when, because there were no other incidents, the Department ended its intervention. However, in September 2001, McMikel rear-ended another car while driving and was hospitalized with a measured blood alcohol level of .63. There was evidence that, at one point, she drank a fifth of vodka while shopping for groceries and that she had a miscarriage January 20, 2002 she was hospitalized again with a blood alcohol level of .283 and referred to another alcohol and drug abuse service. She refused that service.

The testimony shows that McMikel admitted driving while intoxicated with A.M.M. in the car. She was again hospitalized January 25, 2003, with a blood alcohol level of .43. McMikel was arrested for public intoxication May 1, 2003, and was intoxicated at the city pool May 30, 2003, while A.M.M. was with her. Finally, she took A.M.M. to Wade Park September 17, 2003, and while the three-year-old was playing in the park, McMikel passed out in the car, leaving A.M.M. unattended. At the time, McMikel was eight months pregnant and was hospitalized with a blood alcohol level of .44.

After A.M. was born, McMikel was placed in and completed another program, and was allowed to come home with both children after about sixty days, apparently in early January 2004. She was again found to be intoxicated while the children were in day care, and the children were removed March 11, 2004.

McMikel admitted that she had been convicted of three felony D.W.I. charges and one charge of endangering a child. Her husband testified he knew she drank a lot and had passed out while alone with A.M.M. on several occasions.

We also note there is evidence that her husband was an enabler who resisted her participation in the services offered, and there was some evidence the husband was responsible for domestic violence against her.

We need go no further in our analysis than Section 161.001(1)(D) of the Texas Family Code. Grounds for termination are established if there is clear and convincing proof that the parent has knowingly allowed the child to remain in surroundings or conditions that endanger the child's physical or emotional well-being. In this case, it is apparent from a multi-year course of conduct, interrupted by brief periods of sobriety, that McMikel was addicted to alcohol to such an extent that she was unable to care for her own infant children.

Repeated instances of D.W.I., intoxication to the point of lethality and coma, and passing out at a city park while her child played without other supervision provide legally and factually sufficient evidence, even without reference to the remaining allegations by the State, to support this verdict. This pattern of conduct has continued for several years, and the best interests of the children require termination of the parental rights of McMikel, as she has demonstrated she is incapable of caring for them.

The contention of error is overruled.

Violation of the A.D.A.

McMikel next contends the services offered by the Department were so insufficient as to violate the A.D.A. See 42 U.S.C.A. 12101 12113 (West 2005). McMikel argues no specific violation, and cites to no particular portion of the statute which would apply in this instance. We have been directed to three Texas cases by counsel, which he argues reflects a split of authority about the proposition that an A.D.A. violation is a defense in a termination proceeding. In the first case, the Houston First District Court found that an A.D.A. claim was not preserved for its review because counsel did not plead, prove, or obtain findings on that contention. In re C.M., 996 S.W.2d 269, 270 (Tex. App. Houston [1st Dist.] 1999, no pet.) (citing Tex. R. Civ. P. 94). In the second case, the Fort Worth court merely cited C.M. for the underlying concept of preservation of error and did not address the A.D.A. in any respect. In re J.M.M., 80 S.W.3d 232 (Tex. App. Fort Worth 2002, pet. denied). The Beaumont court addressed the issue of whether the A.D.A. was available as an affirmative defense, and, in agreement with a number of other jurisdictions, declined to create such a defense. In re S.G.S., 130 S.W.3d 223 (Tex. App. Beaumont 2004, no pet.).

This case is in much the same procedural posture as C.M. McMikel did not plead or prove a violation of the A.D.A., and it was raised for the first time in a motion for directed verdict. McMikel argues that the court was, under the evidence, required to grant her motion. The issue has not been preserved for our review. See Tex. R. Civ. P. 94; Tex. R. App. P. 33.1; see In re B.L.D.,113 S.W.3d 340, 349 (Tex. 2003). Even if not waived, there is no authority that such a defense could be properly raised in a proceeding of this nature, and in the context of this case as presented to this Court, we decline to reach such a conclusion.

The contention is overruled. //

Claim of Ineffective Assistance of Counsel

McMikel next contends her counsel was ineffective because the Department and trial court delayed appointing counsel until June 28, 2004. McMikel states that counsel was not appointed until a month after the Department had decided to seek termination and argues that this necessarily caused counsel to be ineffective. McMikel further states the Department had also decided to seek adoption by the foster family, although there is no showing of how this is relevant to the analysis.

Section 107.013(a)(1) of the Texas Family Code requires the trial court to appoint counsel to represent an indigent parent of the child who responds in opposition to the termination. Tex. Fam. Code Ann. 107.013(a)(1) (Vernon Supp. 2005). The record shows that, in this instance, McMikel hired an attorney in October 2003, who was allowed to withdraw March 15, 2004. Trial counsel was appointed June 28, 2004, and trial was eventually held in early January 2005.

The statutory right to counsel in parental rights termination cases embodies the right to effective counsel. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). The Texas Supreme Court adopted the test set out in Strickland v. Washington, 466 U.S. 668, 674 (1984), as the standard for ineffective assistance in civil parental termination proceedings. To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his or her defense. Id. at 687.

Thus, to meet this burden, an appellant must prove that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

Although we do not believe, especially in light of the nature of this type of proceeding, that the court should delay in appointing counsel, McMikel has suggested no way in which the three-month time period she was without counsel in this case was harmful. Effectiveness of counsel is not measured merely by the date of appointment of counsel, but by the impact of the appointment and counsel's actions thereafter. Error has not been shown, and no argument has been presented that persuades us any harm existed in this case.

The contention of error is overruled.

Joint Trial with Husband

McMikel next complains that her termination proceeding was defective because it was combined with that of her husband during the midst of their divorce proceeding. McMikel acknowledges there is no authority to support her assertion that she should have been afforded a separate termination trial, but argues that, because she was placed in the position of being sided with a man she was suing for divorce, who had abandoned her, and who had committed family violence against her, her request should have been granted.

The Department correctly notes there is no indication of a ruling on the motion. // As a prerequisite to presenting a complaint for appellate review, the record must show a timely request or objection and either an express or implicit ruling by the trial court. Tex. R. App. P. 33.1. We have no record that the trial court ruled on this request for separate trials and, therefore, the request was waived.

Even if the alleged error had been preserved, under the record before us, the trial court did not abuse its discretion in denying separate trials. Rule 174(b) of the Texas Rules of Civil Procedure allows a court to order a separate trial "in furtherance of convenience or to avoid prejudice." Tex. R. Civ. P. 174(b). The court's decision is reviewed for abuse of discretion. Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 556 (Tex. 2004); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985).

In this case, even though the husband and wife were (according to McMikel's brief) at odds, the facts and allegations were intertwined, and the proof provided by the Department to support termination was such as to, in any event, require nearly identical trials. McMikel has directed us to nothing in the record that shows any particular unfairly prejudicial attitude, behavior, or testimony that would not have been admissible even at a separate trial.

Under these facts, we find no abuse of discretion by the trial court in denying the motion for separate trials.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: November 28, 2005

Date Decided: January 10, 2006