In re Interest of E.M.
| Decision Date | 28 May 2015 |
| Docket Number | No. 10–14–00313–CV,10–14–00313–CV |
| Citation | 494 S.W.3d 209 |
| Parties | In the Interest of E.M. and J.M., Children |
| Court | Texas Court of Appeals |
E. Alan Bennett, Sheehy Lovelace & Mayfield PC, Waco, Matthew Carneal, Mauzy & Tucker PLLC, Austin, for Appellant.
R. Charles Griffin, Bryan, for Appellee.
Bruce L. Erratt, Law Office of Bruce Erratt, Bryan, attorney Ad Litem.
Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Jessica M. and Daniel M. appeal from a judgment that terminated the parent-child relationship between them and their children, E.M. and J.M. TEX. FAM. CODE ANN. § 161.001 (West 2014). Jessica complains that (1) the trial court erred by admitting statements made by E.M. to her therapist; (2) the evidence was legally and factually insufficient to support the jury's findings regarding the three predicate grounds for termination; (3) the evidence was factually insufficient to support the jury's finding that termination was in the best interest of the children; (4) the trial court erred by refusing to submit a complete definition of the term “endanger” in the jury charge; (5) the trial court erred by refusing to submit the grounds for termination in separate questions or to instruct the jury that ten of them must agree as to the ground supporting termination; (6) the trial court abused its discretion by submitting additional instructions to the jury without giving her trial counsel an opportunity to review them or to object to them; and (7) the trial court's additional instructions misled the jury. Daniel complains that the trial court erred by admitting the hearsay statements made by E.M. to her therapist and that the evidence was legally and factually insufficient for the jury to have found that termination was in the best interest of the children. Because we find no reversible error, we affirm the judgment of the trial court.
In Jessica's first issue and Daniel's first issue, they complain that the trial court abused its discretion in allowing E.M.'s therapist to testify regarding statements made by E.M. during therapy sessions regarding alleged acts of abuse and neglect because they constituted hearsay. The statements made by E.M. included claims that she had been “hit and spanked on the legs, butt, and back,” “slapped in the face,” and “thrown against the wall.” Other statements made by E.M. were that her parents were constantly fighting and yelling at each other; she was not always fed or bathed; sometimes her clothes were not washed; she felt the need to and did in fact take care of her younger brother, J.M.; that her parents had used “smoke” in the house which caused them to act strangely and caused Jessica to either be mean and aggressive toward E.M. and J.M. or ignore them altogether; and that Daniel was living with his sister, with whom the children had been placed.
The trial court conducted a hearing outside of the presence of the jury regarding the admissibility of the statements, and determined that the statements were admissible pursuant to section 104.006 of the family code or rules of evidence 803(4) or 705. Jessica and Daniel both complain that the statements were not admissible on any of those grounds. Specifically, they complain that the statements were not admissible pursuant to section 104.006 because the claims made in the statements did not constitute abuse and because the statements were not sufficiently reliable.
The family code permits the admission of hearsay statements by child abuse victims in termination of parental rights proceedings. See TEX. FAM. CODE ANN. § 104.006 (West 2014). Section 104.006 provides that, under certain circumstances, a statement made by a child twelve years of age or younger that describes alleged abuse against a child is admissible. The statute allows admission of such a statement, providing: (1) the court finds the time, content, and circumstances of the statement provide sufficient indications of the statement's reliability, and (2) the child testifies or is available to testify at the proceeding in the court, or in any manner provided for by law, or the court determines that the use of the statement in lieu of the child's testimony is necessary to protect the welfare of the child. Id.
The term “abuse” as defined in Section 261.001 of the family code includes the following:
TEX. FAM. CODE ANN. § 261.001(1)(A)-(B), (I) (West 2014). This is a non-exclusive list of definitions for abuse. In re E.C.R., 402 S.W.3d 239, 246 (Tex.2013). However, we will use those definitions as a guide in our analysis.
The therapist testified that E.M. made the statements in question in different sessions throughout her treatment of E.M. E.M. was initially referred for therapy by her primary care physician shortly after the removal from Jessica and Daniel's home due to E.M. being “emotionally disturbed, throwing up after eating and having nightmares and feeling cold.” E.M. was almost six years old when she started therapy, and her biweekly sessions continued throughout the pendency of the case, which lasted for over a year.
The therapist stated that she had explained to E.M. initially that the purpose of therapy was to talk about whatever E.M. wanted to talk about and to help her feel better with anything she might feel like she needed help with. The therapist relied on E.M.'s statements to determine how to proceed in therapy. The therapist stated that E.M. was very intelligent and that she found E.M. to be consistent and truthful in her statements throughout her months of therapy. The therapist discussed the difference between the truth and a lie with E.M., which she believed that E.M. understood. E.M. also understood that lying is bad and the therapist opined that E.M. understood the ramifications of not telling the truth to the best of her ability considering her developmental level.
In various sessions, E.M. told the therapist that she and J.M. would get hit and spanked on the legs, buttocks, and back a lot by Jessica. E.M. also stated that she had been thrown against a wall, yelled at, and was called mean names. E.M. claimed that at times there was no food in the house and that at other times, she would have to feed herself. E.M. also stated that she was not bathed and her clothes were sometimes not washed. E.M. took care of those tasks except she could not wash her own clothes very well because she could not reach the washing machine, although she told the therapist that she would try to wash them by hand. Additionally, E.M. expressed that Jessica and Daniel argued a lot and hit each other. In a session, E.M. related an experience where one parent was cut by glass with blood being spattered on a wall and that Daniel had punched a hole in a wall another time during a fight. E.M. stated that many times Daniel would leave during the fighting and leave E.M. and J.M. at home with Jessica, and that Jessica would still be angry after Daniel left and would hit E.M. and J.M. Further, E.M. described times when the rooms Jessica and Daniel were in were hazy and that there was smoke. At those times, Jessica and Daniel would act differently and if she asked Jessica for something to eat, Jessica would not respond.
The therapist stated that she found E.M.'s statements to be credible because she expressed them in a manner consistent with what the therapist would expect, E.M. recounted the experiences using age-appropriate language, made appropriate eye contact and had appropriate body language, and her statements remained consistent even when E.M. was in different placements, first during the time when E.M. was placed with Daniel's sister, and later after her placement in foster care. Further, E.M.'s statements were not of a type that the therapist believed a child of her age would make up.
The therapist diagnosed E.M. with adjustment disorder with mixed disturbance of emotions and conduct which the therapist determined had impacted E.M.'s ability to function emotionally, socially, and in some behavioral situations. E.M. displayed symptoms of anxiety and other physical symptoms, such as headaches, stomachaches, and muscle tension. The therapist opined that the symptoms are typically the product of prolonged exposure to domestic violence. Further, because of the lack of care of her parents, E.M. had become “parentified,” that is, she felt and acted as though it was her responsibility to take care of herself and J.M. in a manner that is excessive for a child of her age. The parentification behaviors continued even when E.M. and J.M. were placed in foster care, and the therapist was working to help E.M. behave more like a child her age would be expected to act in relation to her care of J.M.
We find that the trial court's determination that the statements made by E.M. constituted abuse as set forth in section 104.006 was not outside of the zone of reasonable disagreement. The therapist's determination that E.M. had suffered significant emotional difficulty due to her parents' continuous fighting, drug use, lack of food and care for the children, and spanking or slapping of E.M. was sufficient for the trial court as the factfinder to have determined that the incidents together rose to the level of abuse. See In re M.R., 243 S.W.3d 807, 812 (Tex.App.–Fort Worth 2007, no pet.) ...
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