In re Interest of A.E.J.
| Decision Date | 31 August 2020 |
| Docket Number | No. 05-20-00340-CV,05-20-00340-CV |
| Parties | IN THE INTEREST OF A.E.J., L.S.J., AND D.M.J., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the 301st Judicial District Court Dallas County, Texas
Before Chief Justice Burns, Justice Molberg, and Justice Nowell
Opinion by Justice Molberg
Father challenges the legal and factual sufficiency of the evidence supporting a divorce decree which terminated his parental rights to three children, and also contends the trial court abused its discretion in failing to appoint an amicus attorney or attorney ad litem in connection with the termination suit. We affirm the trial court's judgment.
Father and mother have three children, A.E.J., L.S.J., and D.M.J. (collectively "father's children"), who at the time of trial were approximately ten, eight, and five years old. Mother also has an older daughter, Z.W., who was five or six years old when father and mother married and began living together, and seventeen at the time of trial.1
When Z.W. was fourteen, mother noticed changes in father's behavior, including staying up late at night, during which time father claimed he was searching for a job on a computer. Believing father was unfaithful, mother secretly installed an application on his cell phone that monitored how and where his phone was used. Using software connected to the application, mother viewed photos on father's phone that he had taken of Z.W.'s genitalia while Z.W. was asleep. To obtain the photos of Z.W.'s genitals, father had to have undressed Z.W. while she slept. Mother was able to identify Z.W. as the subject of the photos because of a blanket and Z.W.'s clothing visible in the photos, and she knew father took the photos because she could see his hand in some of the photos, and the photos were on his phone. The app also disclosed sexually explicit internet searches made by father between August and September 2016 specifically related to child pornography, and sex between a father and a daughter and a step-father and a step-daughter. Mother saved the photos and the internet search history on a thumb drive.
At trial, mother introduced a copy of the spyware report she had printed, which included copies of the photos of Z.W and the printed browser history from father's phone.
When mother confronted father about her discoveries, father apologized, admitted to a lapse in judgment, and although father also claimed he had never touched Z.W., agreed he needed help. Mother demanded he leave the home and she filed for divorce. Initially, the parties agreed father could remain in the home during the day, but would leave at night. One night shortly after the parties reached this agreement, in late September 2016, father refused to leave the house and mother called the police. Although father left the house before the police arrived, mother told the police about the photos father had taken and delivered a thumb drive with thirty-five sexually explicit photos, as well as "selfies" also from father's phone, to the police the next day.
The Glen Heights Police Department referred indecency and possession of child pornography charges to the Dallas County District Attorney. After the district attorney opened a criminal case, father was arrested.2 Mother testified that during the criminal investigation, Z.W. was interviewed by the Children's Advocacy Center and shown the photos taken of her. Learning about the photos "devastated" Z.W.,and she threw up when leaving the interview. The criminal charges against father were later dismissed without prejudice.3
Once, while father and mother were separated, father called his father-in-law to ask where mother and the children were. At trial, father-in-law said at the time of the call he did not know why the parties had separated and asked father what had happened. Father-in-law testified father admitted that he had taken inappropriate photographs of Z.W.
Mother also testified about and introduced documentary evidence demonstrating her completion and transmission of the forms necessary for father to have supervised visits with the children, but she asserted father had failed to complete the same forms. Father admitted he had not had any visitation with the children, but he testified he had not been contacted with instructions to complete the required paperwork.
Mother also established that despite temporary orders requiring father to pay $368 in monthly child support and $150 per month for medical insurance commencing April 2019, father had not paid any child support. Mother testified she was employed full-time, and she introduced evidence showing medical insurance coverage for all of the children through her employment. Mother described herflexible work hours, which generally required her to leave home at approximately 7 a.m. and allowed her to return home by 3 p.m., which in turn allowed her to transport her children to and from school.
Father claimed mother's contentions about his conduct, admissions, and any agreement that he would sleep outside of the house were fabricated. Father asserted mother was having an affair and had contracted a sexually transmitted disease, which prompted him to sleep outside the house. After the criminal charges against him were dismissed, father reported mother to the FBI, alleging her possession of the photographs of Z.W. was illegal possession of child pornography, which father asserted was evidence manufactured by mother. Father also filed a complaint with the State Bar of Texas against mother's attorney regarding "misconduct" in using manufactured evidence. Father further testified that although he had been unemployed at the time the photographs of Z.W. were taken, at the time of trial, he was employed and generally worked weekdays, 8 a.m. though 6 p.m., with additional occasional overtime on evenings and weekends.
The trial court ordered a child custody evaluation, and appointed E. Justin Ezeoha to prepare the report.4 According to her interview with the custody evaluatorappointed by the trial court, Z.W. recognized father's hand in the photos. She also recalled one evening in August 2016, when father had given her pills he said were to relax her muscles after an athletic tryout at school, and Z.W. recalled that she fell asleep after taking the pills.
The custody evaluator concluded that although it was possible mother had fabricated the photographs, mother's claims were supported by other information. For instance, as the custody evaluator observed, in early September after mother claimed she discovered the photos, she printed information regarding meeting times and locations for Sex Addicts Anonymous meetings,5 which was unnecessary unless she was truthful about the photographs. Likewise, in the same early September period, mother consulted a spiritual advisor about how to deal with her discovery of the photographs and father's actions. Mr. Ezeoha reported mother had followed the spiritual advisor's advice to call the police, and provided copies of her texts with the spiritual advisor to him.
In his report, Mr. Ezeoha observed what would also have been obvious to the trial court as the factfinder: the photos had to have been taken by either mother or father, as no evidence suggested any other adult had access to Z.W. while she was home sleeping. Likewise, Mr. Ezeoha also recognized Z.W. had unquestionably been violated, and other female children in the home required protection, butnonetheless he recommended the court appoint mother managing conservator, appoint father possessory conservator, and if the court credited the allegations against father regarding photographing Z.W., grant father only supervised visits.
Father sought "custody" of his children.6 In the final decree of divorce entered following a bench trial, the court found clear and convincing evidence that father had engaged in conduct that endangered the emotional and physical well-being of the children and determined that terminating father's parental rights to all of father's children was in the children's best interest. At father's request, the trial court also filed Findings of Fact and Conclusions of Law (FFCL) in which it determined appointment of an ad litem attorney for the children was unnecessary and made numerous subsidiary factual findings relating to father's conduct, but no specific findings relating to the ultimate issues, namely the predicate ground for termination of the father-children relationship and the determination of the best interest of the children. Father filed a motion for new trial and requested additional or amended findings of fact and conclusions of law. Both motions were denied. In two issues, father challenges the judgment.
When the movant provides clear and convincing evidence that a parent has committed one predicate act prohibited by section 161.001(1) of the family code and termination is in the best interest of the child, parental rights are appropriately terminated. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); TEX. FAM. CODE § 161.001(1), (2). Clear and convincing evidence means that "measure or 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 § 101.007; In re K.L.B., No. 05-01-01924-CV, 2002 WL 31388776, at *1 (Tex. App.—Dallas Oct. 24, 2002, no pet.) (mem. op.).
The heightened burden of proof informs the standard we utilize in reviewing the trial court's decision. In reviewing termination findings, we determine whether "the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the . . . [movant's] allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the evidence is factually sufficient to support the termination of a...
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