In re D.G.
| Decision Date | 28 October 2015 |
| Docket Number | No. 06-15-00025-CV,06-15-00025-CV |
| Parties | IN THE INTEREST OF D.G., K.G., H.M.G., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law No. 1 Gregg County, Texas
Before Morriss, C.J., Moseley and Burgess, JJ.
After many years of abusing controlled substances, Becky and Bill lost their parental rights to their young children, D.G., K.G., and H.M.G.,1 as the outcome of a jury trial in Gregg County. On appeal, Becky and Bill argue (A) that the evidence is legally and factually insufficient to support the finding that termination was in the best interests of the children, (B) that it was error to deny a mistrial after alleged juror misconduct, (C) that it was error to disallow cross-examination of the allegedly offending juror, (D) that it was error to not instruct the jury panel and jury with the instructions required by Rule 226a,2 and (E) that it was error to submit a broad form issue that encompassed in a single issue both the statutory grounds for termination and the best interests of the children. We affirm the judgment of the trial court because (1) sufficient evidence supports the best-interest finding, (2) neither mistrial nor cross-examination of the juror was required, (3) any error in failing to give the instructions required by Rule 226a was waived, and (4) no jury-charge error was preserved.
Texas courts have historically shown great respect for the biological bond between parent and child, recognizing that "'[t]he natural right which exists between parents and their children is one of constitutional dimensions.'" In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). Indeed, parents have a fundamental right tomake decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500. "'[I]nvoluntary termination statutes are strictly construed in favor of the parent.'" In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick v. State, 685 S.W.2d 18, 20 (Tex. 1985)).
To terminate parental rights, the fact-finder must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination3 and that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). "Clear and convincing evidence" is that "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 (West 2014); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.
In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We assume the jury, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.
In our review for factual sufficiency of the evidence, we give due consideration to evidence the jury could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine if, from the evidence, the fact-finder could have reasonably formed "'a firm belief or conviction about the truth of the . . . allegations.'" Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)). "If, in light of the entire record, the disputed evidence that a reasonable factfinder 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." J.F.C., 96 S.W.3d at 266. "[I]n making this determination," we must undertake "'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26).
Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "'the rights of natural parents are not absolute; protection of the child is paramount.'" In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting J.W.T., 872 S.W.2d at 195; see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)). "A child's emotional and physical interests must not be sacrificedmerely to preserve parental rights." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).
We turn to the evidence in the record relevant to the best-interest finding.
Before the removal of the children in this case in April 2014, Becky and Bill had been investigated by the Texas Department of Family and Protective Services (the Department) on two other occasions, each involving the parents' use of illegal substances. In 2007, when K.G. was born, Becky reported to hospital personnel that she had been smoking marihuana, had used cocaine within the last two weeks, and had taken a pain pill supplied by a friend, all while pregnant with K.G. At that time, the Department sent her for an evaluation, which resulted in her entering outpatient treatment for substance abuse. Becky completed the drug rehabilitation services provided by the Department, and the Department ended its involvement. After eight months, Becky began smoking marihuana again and continued smoking it daily until H.M.G. was born in 2011. When H.M.G. was born, both he and Becky tested positive for marihuana, and the Department began providing drug rehabilitation, parenting classes, and family and individual counseling to Becky and Bill. Becky and Bill completed these services, and the Department again terminated its involvement. Becky testified that she then began using alcohol, and, eventually, methamphetamine. She said that she smoked methamphetamine in her house while her children were present, although she denied smoking in front of them.
In April 2014, the Department received a report of possible neglect of the children and illegal drug use by Becky and Bill. At the time, Bill was incarcerated.4 In an initial investigation on April 14, Linda Womack, an investigator for the Department, found Becky at her house in Gladewater with H.M.G. Although H.M.G. was dirty, it appeared to be from his playing outside. She determined that the utilities were working and that there were no immediate safety hazards in the house, other than cigarette butts scattered about the house. Womack was concerned that some of Becky's relatives were also there to move Becky's grandfather, who was her main source of support, away from the house. She was also concerned that Bill's cousin, Curtis, was also present at the house. Womack knew that the Department had opened a case against Curtis because of his illegal drug use and neglect of his children. After Becky agreed to a drug test, Womack left. Womack was not able to locate Becky again until April 25, when she again found her at her house in Gladewater with K.G. and H.M.G. At that time, they discussed Becky's current drug usage; Becky admitted that she might have trace amounts of marihuana in her system.
As a result of Becky's drug test, Womack concluded that Becky's drug usage placed the children in immediate danger.5 After filing a petition requesting immediate removal on May 1, 2014, Womack removed the children from the home. She testified that, on the day of removal, the children had dirt caked on them, wore dirty clothes, and appeared to not have bathed for a couple of days. She also said that, when she saw them before that day, they appeared to be clean.
At trial, Becky admitted that her children tested positive for methamphetamine and attributed this to secondhand smoke resulting from the lack of doors inside her house. Becky testified that she used methamphetamine daily, until she began to try to get off the drug after this case began. Even then, she acknowledged telling Dr. Donald Winsted, III, a licensed psychiatrist, that she had used methamphetamine every other day and marihuana every day until late December, 2014. Nevertheless, at trial, she asserted that, after her inpatient treatment, she had stopped using these drugs, except for a couple of relapses.
Becky completed seventeen days of an inpatient treatment program in August 2014.6 She testified that her counselor wanted her to go to an outpatient program and to attend Alcoholics Anonymous (AA) meetings, but that she only attended six or seven AA meetings. In January or February 2015, Becky began an outpatient drug treatment program called Beginnings.7 Becky admitted that she used marihuana one time after starting the outpatient program. Becky explained that she returned to drug use after completing the drug rehabilitation programs in 2007 and 2011 because she needed help and she did not...
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