A. B. v. Tex. Dep't of Family & Protective Servs.

A. B. and J. H., Appellants v. Texas Department of Family and Protective Services, Appellee

NO. 03-17-00658-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

March 9, 2018

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT

NO. 284,960-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from a final order, based on jury findings, terminating the parental rights of appellants A.B. and J.H. to their daughter, E.H. In a single issue on appeal, A.B. asserts that the evidence is legally and factually insufficient to support the jury's finding that she had committed at least one of the alleged statutory grounds for termination. In two issues on appeal, J.H. asserts that the evidence is legally and factually insufficient to support the jury's finding that termination of his parental rights was in the best interest of the child and that the district court abused its discretion in admitting certain evidence. We will affirm the termination order.

BACKGROUND

At trial, the jury heard evidence tending to show that J.H., a registered sex offender who had pleaded guilty in 1999 to sexually assaulting his then-three-year-old daughter, had admitted in online conversations that he had recently engaged in sexual contact with his other daughter, E.H., for a period of "about six months" when E.H. was approximately seven years old. Copies of the online conversations were admitted into evidence, and they contained graphic descriptions of sexual acts J.H. claimed to have committed on his daughter and that he wanted to do with other underage girls. The jury also heard evidence tending to show that A.B., E.H.'s mother, had allowed her daughter to remain in J.H.'s care, despite knowing of J.H.'s status as a sex offender and even after discovering his online communication. Additional evidence tended to show that (1) E.H. had made an outcry of sexual assault, identifying J.H. as the perpetrator; (2) E.H., while in her parents' care, had lived in a one-bedroom trailer that witnesses described as "horrible," "deplorable," and "putrid," with a "very foul odor" emanating from inside the trailer that had caused two police officers to "vomit" upon opening the front door; and (3) A.B. and J.H. had failed to complete court-ordered services that were necessary for them to obtain the return of E.H. Based on this and other evidence, which we discuss in more detail below, the district court submitted to the jury, as alternative statutory grounds within broad-form termination issues, whether A.B. and J.H. had: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the child's physical or emotional well-being; (2) engaged in conduct or knowingly placed the child 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 them to obtain the return of the child.¹ In addition to these alternative statutory termination grounds, the broad-form termination question also submitted whether it wasin the best interest of the child to terminate A.B.'s and J.H.'s parental rights.² The jury found that A.B.'s and J.H.'s parental rights to E.H. should be terminated, and the district court rendered judgment accordingly. This appeal followed.

ANALYSIS

Evidentiary sufficiency

In her sole issue on appeal, A.B. asserts that the evidence is legally and factually insufficient to support the jury's finding that she had committed the alleged statutory grounds for termination. J.H. similarly asserts in his first issue that the evidence is legally and factually insufficient to support the jury's finding that termination of his parental rights was in the best interest of the child.

As an initial matter, the Department contends that A.B. and J.H. failed to preserve these complaints. We agree. A complaint that the evidence is legally insufficient to support a jury finding must be preserved in the court below by filing: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial.³ Additionally, a complaint that the evidence is factually insufficient to support a juryfinding must be preserved by first raising that complaint in a motion for new trial.⁴ Here, the record reflects that while A.B. and L.H. both filed a motion for new trial, neither motion contained a point challenging the legal or factual sufficiency of the evidence supporting the jury's findings. Nor did the parents take any other action to preserve their sufficiency challenges. Accordingly, these complaints have been waived.⁵

However, even if the parents' sufficiency challenges had been preserved, we could not conclude on this record that they had merit. The evidence tended to show that A.B. had allowed E.H. to live with J.H., even though she knew that J.H. was a registered sex offender who had been convicted of sexually assaulting his three-year-old daughter, and even after discovering J.H.'s online conversations in which J.H. had admitted to engaging in sexual contact with E.H. over a period of six months; described in graphic detail acts he committed on E.H. and that he wanted to do to other underage girls; and also offered to allow other men to do similar things to E.H. This and other evidence is legally and factually sufficient to support the jury's finding that A.B. had either knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the child's physical or emotional well-being or had engaged in conduct or knowingly placed E.H. with persons who engaged in conduct that endangered E.H.'s physical or emotional well-being.⁶

We would reach the same conclusion as to J.H.'s claim that the evidence is legally and factually insufficient to support the jury's best-interest finding. In addition to the evidence of J.H.'s statutorily offensive conduct, summarized above, J.H. testified that he had been unemployed since at least 2015 and was not currently looking for a job, had failed to pay any court-ordered child support during the case, and had not visited E.H. since the case began in May 2016. Additionally, the Department presented evidence that E.H. had significant behavioral issues that needed to be addressed before she could be placed in an adoptive home and that the Department had placed E.H. in a long-term therapeutic foster home to address those issues. According to both the child's guardian ad litem and the Department's conservatorship caseworker, E.H.'s current placement provided the child with safety and stability, and they described the foster home as "excellent" and the foster parents as "amazing." The ad litem also testified that E.H. had expressed a desire to continue living with her foster mother and that the foster mother had similarly indicated a willingness to continue caring for E.H. "as long as she's capable" to do so. This and other evidence is legally and factually sufficient to support the jury's finding that termination of J.H.'s parental rights was in the best interest of the child.⁷

We overrule A.B.'s sole issue and J.H.'s first issue.

Admissibility

In his second issue, J.H. asserts that the district court abused its discretion in admitting (1) evidence of J.H.'s 1999 deferred adjudication for the offense of aggravated sexual assault of a child; (2) a written statement purportedly made by J.H. during the police investigation of the 1999 offense; and (3) an affidavit requesting the removal of the child from the parents' care, prepared by Shelby Foster, the CPS investigator in this case. Specifically, J.H. contends that the deferred adjudication was inadmissible character evidence, the written statement was not properly authenticated, and the removal affidavit was inadmissible hearsay.

"We review a trial court's decision to admit or exclude evidence for an abuse of discretion."⁸ A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner "without reference to any guiding rules or principles."⁹

We first address the evidence of J.H.'s 1999 deferred adjudication for the offense of aggravated sexual assault of a child. J.H. asserts that the evidence violates Texas Rule of Evidence 404(b), which provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted inaccordance with the character."¹⁰ However, Rule 404(b) further provides that the evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."¹¹

Initially, we observe that J.H. failed to preserve error on the admission of this evidence. Although counsel objected when the Department first asked J.H. if he had been placed on deferred adjudication for aggravated sexual assault in 1999, counsel did not obtain a running objection or subsequently object when the Department later offered into evidence the documents pertaining to that offense, including a copy of the indictment, the 1999 judgment placing J.H. on deferred adjudication, and the 2001 judgment adjudicating guilt. Instead, counsel stated that he had "no objection" when the district court admitted the exhibit into evidence. Accordingly, the error, if any, in admitting this evidence was ultimately waived.¹²

Moreover, even if error had been preserved, we could not conclude on this record that the district court abused its discretion in admitting the evidence. The Texas Family Code provides a list of factors that are to be considered in determining "whether the child's parents are willing and able to provide the child with a safe environment."¹³ One of those factors...