In the Interest of P.D.A. and B.D.A., children--Appeal from 35th District Court of Brown County

Opinion filed March 23, 2006

In The

Eleventh Court of Appeals

__________

   No. 11-04-00189-CV

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   IN THE INTEREST OF P.D.A. AND B.D.A., CHILDREN

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CV 03-01-10

M E M O R A N D U M O P I N I O N

After a jury trial, the trial court entered an order in accordance with the jury=s verdict terminating the parent-child relationship between Tammy Andrews and her two youngest children, P.D.A. and B.D.A. On appeal, Andrews raises three issues. We affirm.

After three days of hearing evidence and argument of counsel, the jury found that Andrews had:

(1) [K]nowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children.

See Tex. Fam. Code Ann. ' 161.001(1)(D) (Vernon Supp. 2005).

(2) [E]ngaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.

See Tex. Fam. Code Ann. ' 161.001(1)(E) (Vernon Supp. 2005).

(3) [F]ailed to comply with the provision of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child=s removal from the parent under Chapter 262 for the abuse or neglect of the child.

See Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon Supp. 2005).

The jury also found that it was in the best interest of the children that Andrews=s parental rights to her children be terminated. At the trial, there were two sets of intervenors. One set of intervenors was Jesse Danielle Lindley and Alan Wayne Lindley, the foster parents of P.D.A. and B.D.A. The other intervenor was Eve O=Neil O=Connor, Andrews=s aunt. The jury found that the Lindleys should be appointed permanent managing conservators. The parental rights of the fathers of P.D.A. and B.D.A. were terminated in prior proceedings. Those findings were incorporated into Andrews=s order of termination in this cause and are not challenged in this appeal.

Andrews contends that there was a Areasonable alternative of placement with Intervenor Eve O=Neil O=Connor.@ We read Andrews=s brief to raise whether the evidence was factually sufficient to support the jury=s verdict that it was in the best interest of the children to terminate Andrews=s parental rights. Andrews does not contest the sufficiency of the evidence to support the jury=s findings on the above three grounds for termination.

Any complaint that evidence is factually insufficient to support the findings necessary for termination is analyzed under a heightened standard of appellate review. In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003). In a factual sufficiency review in termination cases, we will give due consideration to evidence that the fact-finder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); Phillips v. Texas Dep=t of Protective and Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.). We determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the allegations. In re C.H., 89 S.W.3d at 25. We also consider whether any disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in one of the acts or omissions listed in the statute and that the termination is in the best interest of the children. TEX. FAM. CODE ANN. ' 161.001 (Vernon Supp. 2005); Phillips, 149 S.W.3d at 817. In determining the best interest of the children, courts examine a number of factors, including: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the children; (6) the plans for the children by these individuals or by the agency seeking custody; (7) the stability of the home; (8) the acts or omissions of the parent that indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the parent=s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The same evidence that establishes statutory grounds for termination may also establish that the best interests of the children warrant termination. In re C.H., 89 S.W.3d at 28. The list of factors is not exhaustive, and a fact-finder is not required to consider all of the listed factors in making the best-interest determination. Holley, 544 S.W.2d at 372. Likewise, the list of factors is focused on the best interest of the children, not the best interest or desire of the parent. See id.

The Texas Family Code provides that the court shall place a child removed from the child=s custodial parent with the child=s noncustodial parent or with a relative of the child if placement with the noncustodial parent is inappropriate, unless placement with the noncustodial parent or relative is not in the best interest of the child. Tex. Fam. Code Ann. ' 262.201(e) (Vernon Supp. 2005). The provision follows federal guidelines that are directed toward preserving families and giving preference to an adult relative Aprovided that the relative caregiver meets all the relevant State child protection standards.@ 42 U.S.C. ' 671(a)(15)(B)(ii), (a)(19). Placement with a non-related caregiver is not a bar to termination. See In re C.H., 89 S.W.3d at 28.

While evidence presented on the issue of conservatorship or placement is relevant to the best interest of the children, it is not determinative as to whether the termination is in the best interest of the children. See id. The trial court has broad discretion in determining the best interest of the children. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

Andrews has five children. The first three children, not the subject of this suit, were born roughly a year apart from each other starting when she was seventeen years old. Andrews had a four- or five-year relationship with the father during which he injected methamphetamine, smoked marihuana, and physically abused Andrews and the children. After they broke up, two of the children went to their paternal grandmother, while a third child went to Andrews=s mother, Crystal Bush. Most of the testimony in the record indicates that these three children, at various times, lived with their natural father, their aunt, or one of their grandmothers.

P.D.A., the fourth child, was removed from Bush=s home in January 2003 for neglect and endangerment and was placed with foster parents. B.D.A., the fifth child, was born in May 2003. She was removed from the hospital and placed in the same foster home as P.D.A. after she and her mother tested positive for amphetamines. P.D.A. also tested positive for amphethamines at birth but was not removed at that time presumably because Bush, not Andrews, was taking care of the child.

Andrews testified that she began to actively use speed[1] in 1999, the same year her third child was born. Andrews testified that her habit became Areal bad@ in 2002 while she was pregnant with B.D.A. Andrews was able to get drugs from her own father, who was living with Andrews=s sister. After B.D.A. was born, Andrews=s habit worsened, and she continued to use drugs during her probationary period for possession of drugs and check forgery. Her probation was revoked for failing drug tests and for not reporting to her probation officer. As a result, she was incarcerated in 2003.

P.D.A. was born in March 2002 and removed by the Child Protective Services Division (CPS) of the Department of Family and Protective Services in January 2003. From the time P.D.A. was born to the time that P.D.A. was taken into custody by CPS, Andrews was in jail Aquite often@; and she agreed that she was Ain and out so much it=s kind of hard to keep track of it.@ Andrews had a difficult time at trial remembering the details of P.D.A.=s removal and testified that her memory was Afoggy,@ agreeing that it was probably due to the heavy drug use at the time. During the nine months between P.D.A.=s birth and removal, P.D.A. lived with appellant=s mother, Bush. Andrews testified that, while Bush cared for P.D.A., Bush was physically and mentally unable at times to care for Andrews=s children. Andrews testified that Bush was unable to care for the children at times because she Awas eating her pills.@ Andrews=s mother took excessive amounts of Xanax. When Bush consumed excessive amount of Xanax, Andrews=s aunt, O=Connor, would pick up the children from day care and keep them until Bush Awould sober up and get mad@ and would get the children back from O=Connor.

While P.D.A. lived with Bush, he suffered from asthma which required him to go to the doctor and to the hospital often. P.D.A.=s asthma was worsened by Andrews=s mother smoking in the house and using a wood-burning stove to heat the house, both against the doctor=s advice. P.D.A. was taken to I.C.U. on one occasion due to his condition. Bush was in charge of giving P.D.A. his breathing treatments. Andrews testified that she knew that P.D.A.=s asthma could be deadly if Bush did not give him the proper breathing treatments. Andrews testified that she tried to check on P.D.A. when she and her mother were not fighting. When asked whether she was concerned about P.D.A.=s health, she responded, AI was being irresponsible, . . . I knew my sister was there and I also knew that [O=Connor] was always there to check on my kids for that purpose.@ Just before P.D.A.=s removal, Bush went to jail, and P.D.A. was under Andrews=s care while Andrews was pregnant with B.D.A. and using drugs.

Andrews never followed up on any of the steps necessary to regain custody of her children. Andrews was given a Family Service Plan, which, among other things, set out what she must do to regain custody of P.D.A. Andrews was required to undergo a psychological evaluation, to get treatment for substance abuse, and to take parenting classes. At trial, she was asked, AYou=re not contesting or not going to argue with me when I say you didn=t do any of the things that were asked of you?@ Andrews replied, AI did not do them, no.@ Further, when given a choice between an eithteen-month state jail term or a nine-month drug treatment program plus probation, Andrews chose the jail sentence. Andrews testified that she chose the jail sentence because she did not think nine months of drug rehabilitation would have been enough to overcome her addiction.

There is evidence in the record that shows that CPS initially recommended that the children be placed with a relative, O=Connor; but the placement plan changed after inquiries into O=Connor=s home situation, which showed instability in the marriage, prescription drug abuse, and shoplifting charges. The contents of the social study showed that circumstances in O=Connor=s marriage and home would not be a stable, healthy setting for two young children. The social study also found that O=Connor and her husband had a history of domestic violence. The social study assessment on O=Connor=s living situation was admitted into evidence without objection. O=Connor, although present at trial, did not testify.

Upon reviewing the entire trial record, there was sufficient evidence to show that Andrews engaged in a pattern of behavior detrimental to the parent-child relationship. A reasonable trier of fact could have formed a firm belief or conviction that it was in the best interest of P.D.A. and B.D.A. to terminate the parent-child relationship with Andrews. After giving due consideration to the evidence that the trier of fact could reasonably have found to be clear and convincing, we find that the evidence is factually sufficient. Andrews=s first issue on appeal is overruled.

In her second issue on appeal, appellant argues that the trial court erred in admitting Exhibit Nos. 11-20 as violative of Tex. R. Evid. 605 regarding the competency of a judge as a witness. The rule provides that A[t]he judge presiding at the trial may not testify in that trial as a witness.@ Rule 605. The exhibits are court orders from either status hearings, adversary hearings, or permanency hearings during pendency of the termination suit. Andrews alleges that the exhibits contain findings of fact and orders that Arepeatedly and over a substantial period of time comment . . . with the >super credibility= of coming from the bench, that the best interests of the children are being served by removal from the home . . . [and] that all of the determinations and efforts of the Child Protective Services are correct.@ The orders contain findings that placement with Andrews or a relative was not in the best interest of the children, that CPS should be or remain temporary managing conservator of the children, and that the children should remain in substitute care. Andrews alleges that Exhibit No. 16, in particular, a permanency hearing order, is harmful because it contains an order stating that O=Connor should not further visit with the children until an intervention was filed or upon order of the court.

The Texas Supreme Court in In the Interest of M.S. held that admitting such orders as evidence Awas not in itself inappropriate.@ 115 S.W.3d 534, 538 (Tex. 2003). While the court noted that a judge=s findings of fact as contained in an order Aare not technically the same as testimony,@ introducing the findings of fact in the orders comes Afar too close to >indicating the opinion of the trial judge as to the verity or accuracy of the facts in inquiry.=@ Id. The court held that Athe trial judge=s factual findings . . . should have been redacted, so that the jury could draw its own conclusion.@ Id. The court ultimately rejected the assertion that allowing the unredacted court orders was reversible error because Athere is nothing in the record showing that the Department specifically based any of its arguments on the trial court=s fact-findings, or that the Department even pointed out the findings to the jury for its particular consideration.@ Id. The Texas Supreme Court further noted that there was Aample other evidence@ in the record that the parent had not complied with the trial court=s orders. Id. at 538-39.

We do not agree that the language in the orders amounts to harmful error requiring reversal in light of the entire record. The jury made two findings: that it was in the best interest of P.D.A. and B.D.A. that Andrews=s parental rights be terminated and that the foster family be appointed permanent managing conservator. The findings in all ten exhibits complained of are supported by other evidence in the record for both jury findings. Further, CPS did not base any of its arguments on those findings in the exhibits or point them out to the jury for particular consideration. Id. at 538. Andrews failed to show how, in light of the entire record, the error was harmful. See Tex. R. App. P. 44.1(a). We find that the error did not result in an improper judgment. Andrews=s second issue on appeal is overruled.

In her third issue, Andrews argues that the trial court erred in admitting Exhibit Nos. 21B25 because the documents, although public records, contain sources of information and other circumstances that lack trustworthiness. Under Tex. R. Evid. 803(8)(C), Afactual findings resulting from an investigation made pursuant to authority granted by law@ are admissible as an exception to the hearsay rule unless they lack trustworthiness. Rule 803(8)(C). The Texas Family Code mandates that CPS prepare and file both an initial service plan and a service plan review in every case in which CPS is appointed temporary managing conservator. Tex. Fam. Code Ann. '' 263.101, .105 (Vernon 2002).

Andrews argues that the documents are prepared by a party to the litigation, CPS, and that those documents should be excluded because they were prepared for the purpose of litigation, state the contention of a party opponent, and contain Aan inherent lack of trustworthiness that can only be resolved before the jury by normal presentation of evidence through testimony and cross-examination.@ CPS asserts Andrews has not met her burden in rebutting the presumption of admissibility created by the rule. CPS also contends that Andrews did not preserve her complaint as to Exhibit Nos. 21 and 23 because they were admitted without objection. We agree. Tex. R. App. P. 33.1. Andrews stated in the record that she had no objection to Exhibit Nos. 21 and 23. Andrews=s third issue on appeal as to Exhibit Nos. 21 and 23 is waived.

The same standard of review stated in the second issue applies to the admission of Exhibit Nos. 22, 24, and 25. An appellate court must uphold the trial court=s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 44 (Tex. 1998). Andrews must show the judgment turns on the lack of trustworthiness of Exhibit Nos. 22, 24, and 25 C three child service plan reviews. Appellate courts may look to federal caselaw when interpreting Rule 803(8)(c) because the Texas rule was modeled after and worded almost identically to the federal rule. Perry v. State, 957 S.W.2d 894, 897 (Tex. App.CTexarkana 1997, pet. ref=d). There is a presumption of admissibility for public records, and the party opposing the admission of the public record has the burden to show that the evidence is untrustworthy. Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir. 1991).

The child service plan reviews were generated by CPS, as mandated by law, and were reviewed by the trial court pursuant to authority granted by law. Monica Cole, a caseworker for CPS, generated the child service plan reviews for P.D.A. and B.D.A and testified to the contents of the documents. She testified that the initial plan was to place the children with a parent or relative and that the plan was changed later to terminate the parental rights and seek adoption for the children.

A review of the record shows that the contents of the exhibits were presented through other evidence. Andrews asked questions and made arguments about the source of information in the documents in front of the jury. We hold that it was not error to admit Exhibit Nos. 22, 24, and 25. We find that, in the event there was any error in admitting Exhibit Nos. 22, 24, and 25, it was not harmful; it did not lead to the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Andrews=s third issue is overruled as to Exhibit Nos. 22, 24, and 25.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 23, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]Speed is a related stimulant drug to amphetamine and is also referred to as methamphetamine. Merriam-Webster=s Collegiate Dictionary 1199 (rev. 11th ed. 2004).