Samantha Smith v. Department of Family and Protective Services--Appeal from 309th District Court of Harris County
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Opinion issued February 10, 2011
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00241-CV
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IN THE INTEREST OF P.G.F., A.S., AND C.D.T., CHILDREN
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Case Nos. 2005-04518 & 2006-27470
MEMORANDUM OPINION
This appeal arises from a bench trial resulting in the termination of appellant
S.S.‘s parental rights with respect to three of her biological children, P.G.F. and
A.S. (trial court cause number 2006-27470) and C.D.T. (cause number 200504518). The mother has multiple other children who are not at issue in this appeal.
In three issues, she contends that the evidence is legally and factually insufficient
to support each ground for the termination of her parental rights and that the trial
court erred in admitting certain photographs and medical records into evidence.
We affirm.
Procedural Background
After a bench trial lasting approximately eight days, the trial court made
several findings, based on clear and convincing evidence, that the mother had
committed predicate acts supporting a termination of parental rights under Family
Code section 161.001(1) with respect to her children P.G.F., A.S., and C.D.T. See
TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2010). The mother was found to
have knowingly placed the children in conditions or surroundings which
endangered their physical or emotional well-being, or to have knowingly allowed
them to remain in such conditions. See id. § 161.001(1)(D). She knowingly
placed them with persons who engaged in conduct which endangered their physical
or emotional well-being.
See id. § 161.001(1)(E).
She failed to support the
children in accordance with her ability during a period of one year ending within
six months of the date of the filing of the petition. See id. § 161.001(1)(F). And
she failed to comply with the provisions of a court order that specifically
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established the actions necessary for her to obtain the return of the children, who
had been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services as a result of their removal from the
mother for her abuse or neglect of the children. See id. § 161.001(1)(O).
The trial court also found by clear and convincing evidence that termination
of the mother‘s parent-child relationship with each of P.G.F., A.S., and C.D.T. was
in the best interest of the children. See id. § 161.001(2). Accordingly, the trial
court entered final judgments terminating the mother‘s parental rights as to each of
them. The mother filed timely motions for a new trial and statements of appellate
points. See id. § 263.405(b) (Vernon 2008). The trial court denied the motions
for new trial, noted the mother‘s indigence, and determined that an appeal would
be frivolous. See id. § 263.405(d), (e). The trial court also ordered expedited
preparation of the record of the frivolousness hearing, which was provided to the
mother without advance payment. See id. § 263.405(g).
This appeal ensued, with both the mother and DFPS submitting appellate
briefs addressing the trial court‘s finding that the appeal was frivolous. See id.
The court reporter was ordered to prepare and file, without cost to the mother, the
reporter‘s record containing all of the recorded testimony and evidence admitted at
the bench trial on the merits. Quoting Family Code section 263.405(g), the same
order directed the mother, after reviewing the reporter‘s record, to file an amended
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brief ―presenting arguments ‗on the issues presented.‘‖ The parties proceeded to
file amended briefs addressing the merits of the mother‘s appellate points with the
benefit of a complete record prepared at no cost to the mother.
Analysis
I.
Evidentiary challenges
a. Photographs
In her second issue, the mother argues that the trial court erred in admitting
seven photographs that ―purported to be photographs of the children‖ because the
photographs ―were not properly identified or authenticated and were not
admissible under any other ground stated by [DFPS].‖ The mother asserts that, at
the time the photographs were admitted, which was during the testimony of
C. Horne, the child advocate, DFPS did not ask Horne ―if she was familiar with the
children in the photographs‖ or if the photographs depicted ―accurate
representations of the children at the time the photographs were taken.‖ The
mother complains that DFPS ―merely asked if Ms. Horne had examined the
photographs.‖
The photographs at issue are seven photographs taken of the children in
2005 and 2006. In response to questioning by DFPS, Horne confirmed that these
photographs of the children were contained in the file of Children‘s Protective
Services. Specifically, the photographs depicted two of the children‘s full body
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and closer shots of their backs, arms, and faces. Some of the photographs depict
what appears to be bruising and other injuries.
We review a trial court‘s ruling admitting photographs into evidence for an
abuse of discretion. In re K.Y., 273 S.W.3d 703, 709 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). Thus, we will not overturn such a decision if it falls within
the zone of reasonable agreement. Id.
In regard to any complaint about the authentication of the photographs,
Horne‘s testimony confirms that the photographs are contained in the CPS file and
are two of the minor children who are the subject of the underlying suit. Prior to
Horne‘s testimony, another DFPS caseworker had confirmed that DFPS had in its
file photographs of the children. Thus, there is evidence in the record supporting
an implied finding by the trial court that the photographs at issue were of the
mother‘s minor children and that they were properly authenticated. See TEX. R.
EVID. 901.
To the extent that the mother‘s second issue is more properly construed as
presenting a general challenge to the relevancy of the photographs, in part because
they were taken in 2005 and 2006, ―photographs are admissible if oral testimony as
to the matters depicted in the photographs is also admissible.‖ K.Y., 273 S.W.3d at
709. Here, the photographs depict some visible bruising and other marks on two of
the children. Accordingly, the trial court could have reasonably determined that
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the photographs were relevant to show an ongoing pattern of mistreatment, neglect,
or abuse at the time the children were removed from the control of the mother and
that they would help the jury in understanding the testimony presented by DFPS on
these issues. See id.
b. Medical records
In her third issue, the mother argues that the trial court erred in admitting
into evidence medical records from her inpatient treatment facility because the trial
court‘s order allowing the admission of the evidence did not comply with the
Health Insurance Portability and Accountability Act or related federal regulations.
At trial, the attorney ad litem explained to the court that she had subpoenaed
the mother‘s file from her treatment facility. She indicated that she had done so
because Ms. O‘Keke, a doctor at the facility, was potentially going to testify on the
mother‘s behalf. The following exchange occurred:
[attorney ad litem]:
. . . . I subpoenaed the complete file, the
intake forms, all counseling records and
notes for [the mother], all discipline records
or infraction regarding [the mother], all drug
test results regarding [the mother], the rules
and regulations regarding the New Hope
program and any and all records and/or
documents regarding [the mother], . . . .
....
[mother‘s counsel]:
Your honor, I understand that an agency that
have clients with substance abuse, mental
issues are under HIPPA rules and some of
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the things that [she] asked for are not subject
to subpoena.
We have agreed to give her everything that
sets out that [the mother] has followed her
service plan, such as the UA‘s, certificates
of completion, but therapy notes that has to
do with the intimate details of her past and
those things that she talked about with the
therapist, we believe should be privileged
and that they don‘t fall under the subpoena.
....
[attorney ad litem]:
If Ms. O‘Keke is going to take the stand and
give her opinion in regards to how [the
mother] is doing, she‘s basing that on
everything that she‘s done with [the mother]
and I think I have a right to look at those
notes to see what she‘s basing her
recommendations on and to look at those,
and I don‘t have access to anything other
than speaking with Ms. O‘Keke.
[mother‘s counsel]:
There are therapy notes that we don‘t have
any problem—
The trial court then announced it would order that the mother‘s entire file be
produced for an ―in-camera inspection of the therapy notes to determine what [it
would] release.‖
The ad litem agreed with this procedure, and the mother‘s
counsel made no objections or any other statements in regard to the trial court‘s
intention to conduct in camera inspection and determine what records from the
facility could be released. The following day, the ad litem inquired of the trial
court whether it had conducted the in-camera inspection. The trial court responded
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that it had and stated, ―[M]y ruling is, I think they‘re available for anybody here in
the courtroom to review.‖ Again, the mother‘s counsel made no objection or any
other statements on the record.
With her initial comments regarding HIPPA rules, the mother never
identified to the trial court which specific documents could not be produced and
subsequently admitted under HIPAA. In fact, at the end of the exchange, she
agreed that there were certain therapy notes in the file to which she would not
object. When the trial court announced that it intended to conduct an in-camera
inspection, and when the trial court announced the following day that it was
making the records available to the parties, the mother again did not complain of
any specific documents that should not be admitted. She also failed to assert any
objection at either time. Thus, the mother waived any complaint to the production
and or admission of her records from the treatment facility. See TEX. R. APP. P.
33.1.
II.
Legal and factual sufficiency
The mother challenges the legal and factual sufficiency of the evidence to
support the judgments terminating her parental rights as to three of her children. In
proceedings to terminate the parent-child relationship brought under Texas Family
Code section 161.001, DFPS must establish one or more of the acts or omissions
enumerated under section 161.001(1) and that termination is in the best interest of
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the child. TEX. FAM. CODE ANN. § 161.001. Both elements must be established,
and termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). A trial court‘s decision to terminate parental rights must be
supported by clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263–64
(Tex. 2002); In re V.V., No. 01-08-00345-CV, 2010 WL 2991241, at *4 (Tex.
App.—Houston [1st Dist.] July 29, 2010, pet. denied) (en banc). ―‗Clear and
convincing evidence‘ means 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 (Vernon
2008).
―[I]n conducting a legal sufficiency review in a termination-of-parentalrights case, we must determine whether the evidence, viewed in the light most
favorable to the finding, is such that the fact finder could reasonably have formed a
firm belief or conviction about the truth of the matter on which the State bore the
burden of proof.‖ Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs.,
221 S.W.3d 244, 249 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc)
(citing In re J.F.C., 96 S.W.3d at 266). ―In viewing the evidence in the light most
favorable to the judgment, we ‗must assume that the fact finder resolved disputed
facts in favor of its finding if a reasonable fact finder could [have done] so,‘ and
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we ‗should disregard all evidence that a reasonable fact finder could have
disbelieved or found to have been incredible.‘‖ Id. (quoting In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005)).
―In conducting a factual sufficiency review in a termination-of-parentalrights case, we must determine whether, considering the entire record, including
both evidence supporting and evidence contradicting the finding, a fact finder
reasonably could have formed a firm conviction or belief about the truth of the
matter on which the State bore [the] burden of proof.‖ Id. (citing J.P.B., 180
S.W.3d at 573; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). ―We should consider
whether the disputed evidence is such that a reasonable fact finder could not have
resolved the disputed evidence in favor of its finding.‖ Id. (citing J.F.C., 96
S.W.3d at 266–67). ―‗If, in light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.‘‖ Id. (quoting J.F.C., 96
S.W.3d at 266).
a. Waiver of complaints about Section 161.001(1) findings
The trial court made findings by clear and convincing evidence under four
separate provisions of section 161.001(1) to support an involuntary termination of
the mother‘s parent-child relationship with the three children involved in this
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appeal. The trial court made the requisite findings under section 161.001(1)(D),
(E), (F), and (O).
―Only one predicate finding under section 161.001(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child‘s best interest.‖ In re A.V., 113 S.W.3d 355, 362 (Tex.
2003).
In her timely filed statement of appellate points and motion for new trial, the
mother challenged only three of the four section 161.001(1) findings. She did not
challenge the trial court‘s finding under section 161.001(1)(O). The Legislature
has instructed us not to consider any issue that was not specifically presented to the
trial court in a timely filed statement of the points on which the mother intended to
appeal or in a statement combined with a motion for new trial. See TEX. FAM.
CODE ANN. § 263.405(i).
The mother did not argue in the trial court that
section 263.405(i) is unconstitutional to the extent it required her to timely present
her section 161.001(1)(O) argument to the trial court in order to preserve it for
appeal. The mother has not argued, either in the trial court or on appeal, that any
of her counsel rendered ineffective assistance by failing to include in the statement
of appellate points or motion for new trial an argument that the evidence was
insufficient to support a finding under section 161.001(1)(O). See In re M.S., 115
S.W.3d 534, 548–49 (Tex. 2003). Accordingly, we conclude that the mother has
waived her complaints about the legal and factual sufficiency to support the trial
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court‘s finding of one or more of the acts or omissions enumerated under
section 161.001(1). See J.P.B., 180 S.W.3d at 574 (holding legal sufficiency point
was waived when parent did not allege in the court of appeals or in the Supreme
Court that her trial counsel ―unjustifiably failed to preserve a ‗no evidence‘ issue‖).
b. Sufficiency of the evidence to support Section 161.001(2) bestinterest findings
We turn to the mother‘s sufficiency challenges to the trial court‘s best
interest finding under section 161.001(2). In determining whether termination of
the mother‘s parental rights was in the children‘s best interest, we may consider
several factors including (1) the children‘s desires, (2) the current and future
physical and emotional needs of the children, (3) the current and future physical
danger to the children, (4) the parental abilities of the person seeking custody,
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the children, (6) plans for the children by the person
seeking custody, (7) the stability of the home, (8) acts or omissions of the parent
that may indicate that the parent-child relationship is not proper, and (9) any
excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976); V.V., 2010 WL 2991241, at *7. The Holley factors are not
exhaustive, and there is no requirement that DFPS prove all factors as a condition
precedent to parental termination. See C.H., 89 S.W.3d at 27.
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In regard to the desires of the children, C. Hammonds, a family counselor,
testified that the children told her that they wanted to ―live with‖ or ―stay‖ with
their foster parents rather than their biological mother. Based upon her counseling,
she also recommended that the foster parents adopt the children.
The child
advocate, C. Horne, testified that one of the children had spoken to him about his
desire to stay with the foster parents and expressed that he was ―fearful‖ of being
returned to his mother. Another child expressed her desire to stay with the foster
parents. The foster father and potential adoptive parent testified that one of the
children had ―anxiety‖ before visitations with the mother.
In regard to the current and future physical and emotional needs of the
children and the current and future physical danger to the children, DFPS presented
evidence that the mother had a long history of narcotics use and other criminal
activity, including at least one period of incarceration, and that the mother also had
a history of being abusive to her children and endangering their welfare. It also
presented evidence that the mother had left her children with others with the
knowledge that they were serious narcotics users and were physically abusive to
her children. Moreover, at the time of trial, the mother was not employed and
would not have any means to obtain employment or provide a stable home for the
children.
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In regard to the mother‘s parental abilities, DFPS presented evidence that
she gave birth to a baby during the pendency of the case and that this baby tested
positive for having cocaine in his system. C.B., a friend of the mother, testified
that the mother abused her children and had a history of working as a crack cocaine
dealer. C.B.‘s mother, A.T., testified that appellant S.S. had even been C.B.‘s
dealer. There is also evidence that the mother had left her children with C.B. for
significant periods of time while she sold narcotics. The trial court also could have
determined that the mother was not credible or trustworthy, based upon the
mother‘s testimony about her narcotics use and narcotics history, which conflicted
with other substantial evidence presented by DFPS.
In regard to the remaining factors, there is no evidence that the mother
would have any means to independently provide for the children even if she
successfully completed the in-patient care she was undergoing.
DFPS also
presented evidence that the facility where the mother was residing could not house
children, although the mother did present conflicting evidence on this point. The
record before us contains evidence that the foster parents, who sought to adopt the
children, provided a stable and safe environment and that the children‘s behavior
had significantly improved after being placed with the foster parents.
In sum, the record before us establishes that the evidence is legally and
factually sufficient to support the trial court‘s finding that that termination of the
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mother‘s parental rights to the children was in their best interest. TEX. FAM. CODE
ANN. § 161.001(2).
Conclusion
We conclude that DFPS presented legally and factually sufficient evidence
that termination of the mother‘s parental rights to the children was in their best
interest.
Moreover, the mother‘s complaints about the admissibility of the
photographs and medical records are without merit. Accordingly, we affirm the
final judgments of the trial court.
Michael Massengale
Justice
Panel consists of Justices Jennings, Alcala, and Massengale.
Justice Jennings, concurring.
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