In re G.P.

• Decision Date: 25 October 2016
• Docket Number: NO. 01-16-00346-CV,01-16-00346-CV
• Parties: IN THE INTEREST OF G.P., A CHILD
• Court: Texas Court of Appeals

IN THE INTEREST OF G.P., A CHILD

NO. 01-16-00346-CV

Court of Appeals For The First District of Texas

October 25, 2016

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

Trial Court Case No. 15-CP-0051

MEMORANDUM OPINION

In this accelerated appeal,¹ appellant, C.C., challenges the trial court's order, entered after a jury trial, terminating his parental rights to his minor child, G.P.² In his third issue, C.C. contends that the evidence is legally and factually insufficientto support the jury's findings that he knowingly placed G.P., or knowingly allowed her to remain, in conditions or surroundings that endangered her physical or emotional well-being;³ he engaged, or knowingly placed G.P. with persons who engaged, in conduct that endangered her physical or emotional well-being;⁴ he failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of G.P.;⁵ he used a controlled substance⁶ in a manner that endangered the health or safety of G.P. and failed to complete a court-ordered substance abuse treatment program or, after the completion of the program, continued to abuse a controlled substance;⁷ and the termination of the parent-child relationship was in G.P.'s best interest.⁸ In his first and second issues, C.C. contends that he was denied effective assistance of counsel and the trial court erred in admitting certain evidence.

We affirm.

Background

On April 13, 2015, the Texas Department of Family and Protective Services ("DFPS") filed a petition seeking managing conservatorship and termination of C.C.'s parental rights to his minor child, G.P.

At trial, Galveston County Sheriff's Office ("GCSO") Deputy L. Scarbrough testified that in April 2015, he was dispatched to C.C.'s home because C.C. wanted to evict Sherry Reames, his female roommate and G.P.'s babysitter.⁹ C.C. was "very angry" with Reames because she had allowed G.P. to go to a baseball game with his ex-girlfriend, Donna Meguess. Scarbrough noted that C.C. was "yelling" and having difficulty controlling his anger.

After Deputy Scarbrough had given C.C. "civil advice" and left the home, he returned later that same day because C.C. and Reames engaged in another verbal dispute about Reames moving out of the home. This time, however, Reames asserted that C.C. had "threatened" to "kick her ass," while holding a pipe in his hand. Scarbrough arrested C.C. for "assault by threat."¹⁰

While Deputy Scarbrough was at C.C.'s home, a neighbor told him that G.P., who was ten years old at the time, was at another neighbor's home asserting thatC.C. had "assaulted her and slapped her on top of [her] head, causing lumps on her head." After Scarbrough learned that another law enforcement officer had actually "felt lumps" on the top of G.P.'s head, he contacted DFPS.

Deputy Scarbrough further testified that a sexual offense occurred in January 2015, involving G.P. as the complainant and Joseph Claude David, Jr. as the defendant.¹¹ Immediately after the incident, Scarbrough had allowed G.P. to sleep in the backseat of his patrol car while he waited for DFPS to arrive at the scene because law enforcement officers had been unable to contact C.C. and "[n]o one knew where he was." When C.C. did eventually arrive, he was unaware that the sexual offense had occurred.

GCSO Deputy D. Bouse testified that on April 11, 2015, G.P., as she sat in the backseat of Bouse's patrol car, told Bouse that "she had been hit [o]n the head" by C.C. and "she had a knot on her head" as a result. When Bouse felt G.P.'s head, she found "a raised portion" about the size of "half" of "a boiled egg." G.P. told Bouse that she had gone to a baseball game with a family friend and after C.C. had come to pick her up, he "struck her [o]n the head" with his "open hand." WhenBouse asked her how many times C.C. had hit her, G.P. stated "a lot." G.P. also reported to Bouse that she was hungry.

GCSO Sergeant B. Balchunas testified that he conducted the subsequent investigation of G.P.'s allegation of physical abuse against C.C.¹² He noted that Deputy Scarbrough had responded to a call regarding C.C.'s desire to evict Reames from his home.¹³ When Scarbrough informed C.C. that he would have to use a "civil process" to evict Reames, C.C. became upset. After Scarbrough left the home, C.C. "be[came] real hostile toward [Reames] and threaten[ed]" to hit her by "pick[ing] up a pipe."¹⁴ When Scarbrough subsequently returned to the home, he arrested C.C. for "assault by threat."¹⁵

As part of Sergeant Balchunas's investigation, G.P. participated in a videotaped forensic interview through the Child's Advocacy Center ("CAC"). After G.P.'s interview, Balchunas became aware that G.P. had made an additional allegation of sexual abuse against C.C. He also noted that during her interview, G.P.stated that she did not want to see C.C. again, he was "a very bad man," and she was afraid of him.

Sergeant Balchunas also conducted a consensual, noncustodial videotaped interview of C.C. C.C. stated that on the day that the alleged physical abuse occurred, Reames had told him that G.P. was at a baseball game with his ex-girlfriend, Meguess. C.C. admitted that this upset him and he "struck" G.P. with his hands in order to "get her attention."¹⁶ Balchunas opined that C.C was not remorseful about his actions and that by striking G.P. on her head, C.C. had engaged in conduct constituting "more than corporal punishment." Balchunas did note that C.C. had denied G.P.'s allegation of sexual abuse, stating that he had not "touch[ed]" G.P. and "[h]e would never do anything to that effect."

Sergeant Balchunas further testified that when he spoke with Reames, she "made it clear" that she did not believe that G.P. should be living with C.C. Reames reported that C.C. had sexually abused G.P., noting that once, while she was in C.C.'s home and G.P. was upstairs in the loft, she heard G.P. say to C.C., "No, stop," and C.C. responded, "No, you stop." (Internal quotations omitted.) When G.P. subsequently came downstairs, she was "very emotional, very upset" and told Reames that C.C. had "touched her and put his finger down in her vaginal area." Additionally, Reames's son, Stetson McNemar, told Sergeant Balchunas that G.P.,while upset, told him that C.C. had "touched" her. (Internal quotations omitted.) And it was obvious to McNemar that she was "referring to down in her vaginal area."¹⁷

In regard to C.C.'s criminal history, Sergeant Balchunas noted that C.C. was an admitted member of "a gang," the "Dead Men." And McNemar told Balchunas that C.C. would often return to his home at "odd hours" and on occasion he would, after being outside in his car, come back inside the home, "appear[ing] to be under the influence of something," possibly methamphetamine. C.C. had also admitted to McNemar that he would "do[] some slinging," meaning that he "participat[ed] in narcotics."

Cheryl McCarty, a CAC forensic interviewer, testified that she interviewed G.P. in April 2015.¹⁸ During her interview, G.P. stated that C.C. had hit her, she was afraid of him, she was glad that he had been incarcerated, and she did not want to see him again. G.P. believed that C.C. is a "bad person." And G.P. disclosed to McCarty that C.C. had touched her vagina and she had told him to "stop."

During McCarty's testimony, the trial court admitted into evidence State's Exhibit 39, the CAC's videotaped forensic interview of G.P., who was ten years oldat the time.¹⁹ G.P. stated that she had been living in an "R.V.," a recreational vehicle, with C.C., her father, Reames, her babysitter, and Reames's son. G.P. explained that Reames babysat her "all [of] the time," including when C.C. was working or sleeping,²⁰ and she slept upstairs with Reames because she was afraid of C.C. When G.P. would get in trouble at home, C.C. would yell "fuck" and "shit" and call her a "slut."²¹

G.P. further explained that she had knowledge about cocaine and marijuana. She had seen marijuana in C.C.'s home and noted that he stored, in certain cabinets in the home, his marijuana, which he kept in either a "baggie" or a "pipe." C.C. smoked his marijuana "like a cigarette," or with the pipe, "almost anywhere," including in front of G.P. When asked whether any other person had ever smoked marijuana in C.C.'s home, G.P. stated that "some of [C.C.'s] friends [had] c[o]me over."

In regard to her allegation of physical abuse against C.C., G.P. stated that in 2015, about a week after Easter, C.C. had hit her after she had attended a baseball game with C.C.'s ex-girlfriend. She explained that when C.C. came to pick her up, she ran to his truck. On the drive home, C.C. started hitting her on head with hisopen hands. Although she could not say how many times he had hit her, he hit her on the right-side of her head toward the back.²² G.P. noted that she had three "knot[s]" or "bump[s]" on her head and it "hurt" afterward.

In regard to her allegation of sexual abuse against C.C., G.P. stated that while C.C. was "sleeping up[stairs] . . . with [her]," he touched her with his hand under her clothes, and she told him to "stop." This was the first time that such an incident had occurred, and C.C. had never touched her anywhere else.

Finally, during her interview, G.P. stated: "[M]y dad is a bad person. A really bad person." And while crying, she asked McCarty whether she had to ever see C.C. again. Further, G.P. specifically stated that she did not want to see C.C. again. She is afraid of him because he yells at her and is "mean."

Megan Myers, C.C.'s other daughter, testified that when she was sixteen years old, she moved to Texas to live with C.C. for one year.²³ While Myers lived with C.C., he was "very controlling," and if she "didn't do something [that] he wanted [her] to do, [they] would start fighting." Specifically, C.C. would hit Myers with his "open hand" or "take his belt off and whoop [her] with" it. C.C. had hit Myers with his belt about...