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

1

W. B., Appellant v. Texas Department of Family and Protective Services, Appellee

No. 03-23-00461-CV

Court of Appeals of Texas, Third District, Austin

November 30, 2023

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 321796, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

Before Justices Baker, Triana, and Smith

MEMORANDUM OPINION

Gisela D. Triana, Justice

Appellant W.B. (Father) appeals from the district court's final order, following a de novo hearing, terminating his parental rights to his two-year-old son, A.W. (Charlie).^[1] In four issues on appeal, Father contends that (1) this Court cannot presume that the record of the hearing before the associate judge which preceded the de novo hearing but has not been included in the appellate record, supports the decision terminating his parental rights; (2) the evidence is legally and factually insufficient to prove that Father placed Charlie in an endangering environment; (3) the evidence is legally and factually insufficient to prove that Father engaged in endangering conduct; and (4) the evidence is legally and factually insufficient to prove that termination of Father's parental rights was in Charlie's best interest. We will affirm the order terminating Father's parental rights.

BACKGROUND

The case began in late December 2020, when the Texas Department of Family and Protective Services (the Department) received a report alleging neglectful supervision of Charlie by Charlie's mother, K.W. (Mother), and Father. In the Department's removal affidavit, a copy of which was admitted into evidence at the de novo hearing, CPS investigator Catina Bett averred that Mother had given birth to Charlie following the relinquishment of her parental rights to three other children, "Tammy," "Zachary," and "Lisa" (all pseudonyms) who had been removed from her care after Lisa had been born with marijuana in her system and after Mother had attempted to commit suicide. The Department also expressed concerns about Father, who was in a relationship with Mother but who was not the biological father of her other children. According to Bett, Father had picked up Mother's children from school while he was smoking marijuana.

The Department also received a report alleging "sexual abuse of all the children" by Father. Zachary had exhibited behaviors "indicative of sexual abuse," including "attempt[ing] to put his mouth on another child's penis." The Department was concerned that "without legal intervention, [Mother] will allow [Father] to have contact with [Charlie], placing the child in a dangerous situation that can affect his wellbeing and life," that Mother "was not able to provide a safe environment for the child as she continues to engage in sexual intercourse and be in a relationship with [Father,] who sexually abused her children," and that Mother "relinquished her rights to her other children and failed to disclose her involvement with the Department to the hospital to allow [Father] to have ongoing access to [Charlie]." Based on these concerns, the Department sought and obtained emergency removal of Charlie from Mother's and Father's care and filed a petition to terminate their parental rights to Charlie.

In January 2021, while the case was ongoing, Father was indicted on three counts of aggravated sexual assault of a child Tammy, who was six or seven years old at the time of the alleged offenses. The indictment, a copy of which was admitted into evidence at the de novo hearing, alleged that Father intentionally and knowingly caused the penetration of Tammy's mouth with his sexual organ, intentionally and knowingly caused the penetration of Tammy's sexual organ with his finger, and intentionally and knowingly caused the penetration of Tammy's anus with his sexual organ. In the probable-cause affidavit for Father's arrest, a copy of which was admitted into evidence at the de novo hearing, the arresting officer averred the following:

I WOULD ADVISE THAT ON JULY 9, 2020, A CPS WORKER REPORTED AT THE KILLEEN POLICE DEPARTMENT THAT AN ALLEGATION OF AGGRAVATED SEXUAL ASSAULT OF A CHILD HAD SURFACED DURING HER INVESTIGATION. I WAS ASSIGNED THE CASE. I WOULD ADVISE THAT I REVIEWED THE VIDEO FROM WHEN THE VICTIM, [TAMMY,] WAS INTERVIEWED BY A FORENSIC INTERVIEWER AT THE CHILDREN'S ADVOCACY CENTER [CAC] IN TEMPLE, TEXAS, AND REPORTED THAT SHE HAD SEXUAL CONTACT WITH THE SUSPECT [FATHER] AND THAT THE LOCATION OF THE ASSAULT WAS THE SUSPECT'S HOUSE IN KILLEEN, BELL COUNTY, TEXAS WHEN SHE WOULD VISIT WITH HER MOTHER. THE ASSAULTS OCCURRED MULTIPLE TIMES DURING THE TIMEFRAME OF JUNE 2019 THROUGH JULY 2020. I WOULD ADVISE THAT THE VICTIM FURTHER REPORTED THAT SHE WAS 6 AND 7 YEARS OF AGE AT THE TIME OF THE ASSAULTS . . . .

In December 2021, Charlie's foster parents filed a petition to intervene in the termination suit, seeking to adopt Charlie if Mother's and Father's parental rights were terminated. A second couple, who had adopted Mother's other children in November 2021, also filed a petition in intervention seeking to adopt Charlie. Meanwhile, Mother executed an affidavit of relinquishment of her parental rights to Charlie. Father opposed the termination of his parental rights.

The case proceeded to a four-day bench trial before an associate judge, after which the associate judge signed a decree terminating Mother's and Father's parental rights to Charlie, naming the Department as Charlie's managing conservator, and continuing Charlie's current placement with the foster parents. Regarding termination, the associate judge found that Mother had executed an irrevocable affidavit of relinquishment of her parental rights, see Tex Fam. Code § 161.001(b)(1)(K), and that Father had endangered Charlie's physical and emotional well-being, see id. § 161.001(b)(1)(D), (E). The associate judge further found that termination of Mother's and Father's parental rights was in Charlie's best interest. See id. § 161.001(b)(2).

Father filed a request for a de novo hearing on the issues of termination and placement. At that hearing, several witnesses testified, including the Department caseworkers assigned to the case, two of Charlie's guardians ad litem, Father, Foster Mother, one of the adoptive parents of Charlie's three siblings, the case manager for the adoption agency that licensed the siblings' adoptive parents, and a child psychologist. Exhibits admitted into evidence at the de novo hearing included the removal affidavit, Father's family service plan, the final permanency report, documents related to Father's pending criminal charges, Mother's affidavit of relinquishment, and a recording of Tammy's forensic interview with the CAC. At the hearing's conclusion, the district court announced that it could not conclude that the associate judge was incorrect in its ruling or that there was insufficient evidence to support its findings, and it adopted the associate judge's order as its own. The district court subsequently signed its final order "affirm[ing] the ruling of the associate judge." This appeal followed.

DISCUSSION

"Absent record" presumption

Contemporaneous with the filing of his notice of appeal, Father filed a request for preparation of the clerk's record and reporter's record, including "[a] full transcript of the final hearing conducted" before the associate judge. However, the district court provided only the transcript of the de novo hearing.^[2]

In his first issue, Father asserts that this Court "should limit its [sufficiency] review to the de novo hearing in the district court and disregard the final hearing" held before the associate judge by not indulging the "absent record" presumption. See In re G.X.H., 627 S.W.3d 288, 300 (Tex. 2021) ("In the absence of a record, we presume the evidence was sufficient to support the trial court's findings."). Father contends that "[i]ndulging the absent-record presumption in this case would violate [his] constitutional right to meaningful review." He argues that because he is indigent, he is entitled upon request to have the county pay for the transcript of the hearing before the associate judge. In Father's view, because he requested the transcript but the district court refused to pay for it, "hold[ing] the absence of that part of the record against [Father] by indulging the absent-record presumption . . . . would impose an unreasonable impediment to [Father's] appellate rights, and thereby violate due process."^[3] Father acknowledges that "[t]his Court can, however, avoid this constitutional issue by declining to consider the hearing [before the associate judge] or indulge any presumptions about what may or may not have been presented there." Thus, Father asks this Court to "either disregard any evidence that may have been presented at the final hearing [before the associate judge] or else remand to the trial court for supplementation of the record."

For purposes of this appeal, we will assume without deciding that it is not appropriate to indulge the absent-record presumption here. See Tex. R. App. P. 47.1; see also In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (explaining that courts are to avoid deciding constitutional questions when possible); T.L. v. Cook Child.'s Med. Ctr., 607 S.W.3d 9, 35 (Tex. App.-Fort Worth 2020, pet. denied) (explaining that principle of judicial restraint requires courts to refrain from deciding constitutional issues "unless it is necessary to do so"). Accordingly, we sustain Father's first issue to the extent that we will limit our sufficiency review to the evidence presented at the de novo hearing.

Evidentiary sufficiency

In his second and third issues, Father asserts that the evidence is legally and factually insufficient to prove that he endangered Charlie. In his fourth issue, Father asserts...