In re Of

IN THE INTEREST OF B.T.D. AND C.M.D., Children

NO. 01-16-00582-CV

Court of Appeals For The First District of Texas

January 20, 2017

On Appeal from the 306th District Court Galveston County, Texas

Trial Court Case No. 12-FD-1807

MEMORANDUM OPINION

Father's parental rights to B.T.D. and C.M.D. were terminated in a private proceeding tried to a jury. In three issues, Father argues that the judgment should be reversed because: (1) he was denied due process, (2) the trial court erred in denying his request for a continuance, and (3) there is insufficient evidence to support the judgment. We affirm the trial court's judgment.

Background

Mother and Father divorced in 2010 and are the parents of B.T.D. and C.M.D. In 2012, Mother filed the present petition to modify the parent-child relationship, requesting termination of Father's parental rights with respect to both children. In her live pleading, Mother alleged that Father had "knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endanger the children's physical or emotional well-being," "engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers the children's physical or emotional well-being," and that termination of the parent-child relationship was in the children's best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D)-(E), (b)(2) (West Supp. 2016).

A. Relevant Background and Procedural History

Father is a family law attorney and former family court judge. Based on testimony Father gave during an emergency custody hearing in this case, Father was indicted in July 2013 on two felony counts of perjury. In September 2013, Father pleaded guilty to misdemeanor perjury and misdemeanor abuse of official capacity, and was placed on deferred adjudication community supervision. The other perjury charge and several abuse-of-office and official oppression charges were dismissed.

Father was represented in this termination proceeding by two attorneys until March 2015, when the trial court granted the attorneys' joint motion to withdraw.Three months later the Harris County Sheriff's Office executed a search warrant on Father's apartment in connection with two new felony charges for online impersonation, and they allegedly seized Father's files and personal papers, which Father contends he needs to properly defend himself in this termination proceeding. Father, who was arrested on July 2, 2015 in connection with these two felony charges, was incarcerated at the time of trial in this case.

Father was given forty-five days' notice of the March 14, 2016 trial setting, during which time he could have hired a new attorney or motioned the trial court to appoint him an attorney.¹ During a pretrial hearing on March 15, 2016, the trial court heard arguments from both sides regarding a pro se motion that Father had filed that same day entitled "Second Request for Return of All Files, Pictures, Evidence Related to the Matters Before This Court."² Father claims that he also requested thereturn of such items from a visiting judge in August 2015, and that his request was denied.³ The trial court denied Father's request stating, "I'm going to deny the request to return the files. That's outside of my area." At the conclusion of the hearing, the trial court appointed one of Father's previous attorneys, who had been allowed to withdraw in 2015, to represent Father at trial. The trial was continued until the following day. Father made an oral request for a continuance, but that request was denied. Father was incarcerated at the time on the new felony charges.

B. Trial Proceeding

Among the many allegations Mother had raised against Father, Mother alleged in her live pleading that: Father "had formulated a plot to possibly murder [Mother], fake his own death and flee the country with the children, specifically to New Zealand, with his former fiancée T.C. This alleged plan has come to be known in the media as the "murder and flee" plot."⁴ She further alleged that "reports weremade that [Father] may have formulated a second plan to kidnap the children after the first plan was discovered."

Mother and T.C., Father's former fiancée, both testified at trial regarding the first "murder and flee" plot. The plot was discovered by law enforcement when they interviewed T.C. in connection with a criminal investigation of Father in 2013. During a meeting with the Texas Rangers, the special prosecutor from the Attorney General's Office, and the Galveston County District Attorney, T.C. provided a concise version of the plot. An audio recording of the meeting was entered into evidence.

On May 20, 2013, T.C. provided sworn testimony regarding the plot in an affidavit that was also admitted into evidence. In her affidavit, T.C. averred that Father was planning either to murder Mother, or to enlist someone else to do it, and to then stage a fake boating accident in which Father, the children, T.C., and her daughter would all be presumed dead. Using fake passports procured by Father, the group would then fly to New Zealand and start a new life. Father also planned to tell the children that Mother had died in an accident to prevent them from trying to contact her.

In her affidavit, T.C. also stated that Father had purchased a 9mm handgun with a silencer in early 2013. About this same time, Father also told T.C. that they needed to save as much money as possible for their trip, and he began stockpilingsilver bullion that he would ship to New Zealand ahead of time to fund their new life. Additional evidence corroborating T.C.'s claim was also presented to the jury. Specifically, Father testified that he bought silver bullion in 2013 and a silencer, and a receipt documenting Father's purchasing of a 9mm with a silencer was admitted into evidence. A text between Father and T.C. was also admitted into evidence in which Father told T.C., "I thought the plan was to get to NZ. Start fresh. Start a new life. Save as much before then. Live together happily ever after in NZ."

T.C. also averred in her affidavit that she had witnessed Father's interactions with the children and that Father "uses mind control with the children and is an emotional bully. The children fear him." She further opined that Father having the children "is emotionally harmful for them," and that she believed that the children were "in physical danger."

After reviewing her sworn statement, T.C. testified that she had never stated that Father's plan was to kill Mother. According to T.C., she only made a statement that Father had "made a comment [to her] that he could do it." She also stated that the audio statement she gave to law enforcement was correct. In the audio statement, T.C. reported that Father had told her that if he had an airtight alibi, he could kill Mother. When discussing another person, Father told T.C. that all one would need to do is wear a ski mask, and "walk up to the door, shoot 'em, and walk off."

Mother also testified that the children learned about the first alleged plot through their classmates and the media. According to Mother, both children live in fear that they are going to be kidnapped, although their fear has lessened since Father has been incarcerated. Mother also testified that thirteen-year old B.T.D. sleeps with his lights on.

There was also testimony regarding a second plot to kidnap the children. Specifically, Father's friend, L.F., testified that she contacted Father's attorneys in February or March 2014 because Father had said "some things that led [her] to believe that he might be taking the children over spring break or something." Mother also testified that she learned of this second plot from L.F. L.F. testified that Father's attorney felt that she had an ethical obligation to disclose the information, and Father's attorney informed the children's ad litem about the report of an alleged kidnapping plot.

Father, who was present for the entire trial, testified on five days and amassed a total of over 650 pages of trial testimony. He also introduced thirty-nine exhibits—thirty-eight of which were admitted into evidence—and called three witnesses.

Father denied having concocted the "murder and flee" plot, and he contended that T.C. had been pressured into giving a false affidavit. He further claimed that T.C. later recanted her statements. Father denied having a conversation with L.F. in which he "indicated that [he] would kidnap the children." Father also suggested thatmany of the text messages, emails, Facebook posts, and communications between himself, T.C., and others, were taken out of context. There is evidence and testimony that Father pleaded guilty to misdemeanor perjury.

Father and his witnesses also testified that the children were happy, got straights "A's" and otherwise thrived when they were in Father's care. Father's witnesses also testified that they had witnessed interactions between Father and the children, that they had not observed any inappropriate or troubling behavior, and that they did not believe that Father would harm the children. They also testified that Father was very involved in the children's school and extra-curricular activities. One witness also testified that she had allowed her children to have a sleepover at Father's house. She also testified that she did not believe T.C.'s allegations. One of the witnesses was Father's aunt, another was his former court coordinator, and the third person was someone who knew Father through their children and Father had ruled in favor of this witness in a family law matter.

At the conclusion of trial, the following deemed admissions from Father were read into the record: (1) "That [Father] intended to flee to New Zealand with [B.T.D. and C.M.D]," (2) "That [Father] conspired to get [T.C.] to recant her testimony," and (3) "That [Father has] discussed kidnapping [B.T.D. and C.M.D.] with [L.F.]."

The jury found that Father committed acts and omissions...