In re J.T.G.

Decision Date16 October 2003
Docket NumberNo. 2-03-039-CV.,2-03-039-CV.
Citation121 S.W.3d 117
PartiesIn the interest of J.T.G., H.N.M., M.D.M., B.M.L., Children.
CourtTexas Court of Appeals

Cindy Stormer, Gainesville, for Appellant (P.G.).

Christopher M. Fostel, Decatur, for Appellant (S.L.).

C. Ed Davis, TDPRS General Counsel, Phoebe Knauer, Deputy Gen. Counsel, Cathy Morris, Chief Atty. for Field Operations, Sarah R. Guidry, Supervising Atty. for Field Operations, Special Litigation Unit, Duke Hooten, Appellate Atty., Office of Gen. Counsel Special Litigation Unit, Austin, for Appellee.



SUE WALKER, Justice.


P.G. appeals the trial court's judgment terminating her parental rights to four of her children. In four points, P.G. complains that the evidence is legally and factually insufficient to support any of the four statutory grounds for termination pleaded by the Texas Department of Protective and Regulatory Services ("TDPRS"). She also contends that the trial court erred by refusing to submit her requested jury instructions and questions and by denying her request for a disinterested expert witness.

S.L. is the father of P.G.'s youngest child, B.M.L. Based on the jury's verdict, the trial court rendered a judgment terminating S.L.'s parental rights to B.M.L. In three points, S.L. contends that the evidence is legally insufficient to support any of the four statutory grounds for termination pleaded by TDPRS. He also contends that the trial court erred by denying him a sufficient number of peremptory challenges and by admitting evidence of his prior bad acts. We will affirm.


P.G. is the mother of J.T.G., born in April 1995, H.N.M., born in October 1997, M.D.M., born in July 1999, and B.M.L., born in July 2001 (the "children"). The alleged father of J.T.G. was only briefly involved with P.G. and never had any contact with P.G. or J.T.G. during P.G.'s pregnancy or after J.T.G.'s birth. Eleven months after J.T.G. was born, P.G. became involved with the father of H.N.M. and M.D.M. In 1998, the couple was commonlaw married. In 1999, P.G. ended her four-year relationship with the father of H.N.M. and M.D.M.1 and began a relationship with S.L. immediately thereafter. After two weeks, P.G. and S.L. moved in together. As previously mentioned, S.L. is the father of B.M.L.2 and was still living with P.G. at the time of trial. P.G. and S.L. are the parents of another child who was not a subject of this suit.

TDPRS first became involved with P.G. and her children in October 1997 following the birth of H.N.M. TDPRS received a referral after H.N.M. was born with hydrocephalus—a build-up of fluid on the brain and agenesis of the corpus callosum. Concerns existed due to the child's fragile medical condition, her special needs, and allegations of physical abuse stemming from P.G.'s drug use during her pregnancy. P.G. admitted at the time of the investigation and at trial that she used various drugs during her pregnancy with H.N.M. However, TDPRS found no evidence of drug use by P.G. or H.N.M.'s father during the time of the investigation. Both parents were involved in an early childhood intervention program, and H.N.M. was attending all scheduled medical appointments. Following its investigation, TDPRS decided not to remove the children from P.G.'s care.

In July 2001, TDPRS again became involved with P.G. and with S.L. after P.G. attempted to commit suicide by overdosing on prescription and nonprescription drugs. P.G. was approximately thirty-three weeks pregnant with B.M.L., and B.M.L. was born the day after P.G.'s suicide attempt. A drug screen conducted on P.G. revealed positive results for benzodiazepines, amphetamines, and opiates. An investigation by TDPRS revealed that the suicide attempt stemmed from an argument between P.G. and S.L., which resulted in S.L. leaving P.G. for a brief period of time. As a result of P.G.'s suicide attempt, prior drug abuse of both P.G. and S.L., and "high risk" to the children, TDPRS decided to open a case for the provision of inhome safety services focusing on family preservation. TDPRS implemented a safety plan that required S.L. and P.G.'s sister to supervise all contact between P.G. and her children. P.G. was also required to complete a mental health evaluation and receive counseling. Sue McAfee ("McAfee"), a family preservation caseworker with TDPRS, specifically instructed P.G. and S.L. to abstain from any drug or alcohol use. Prior to the completion of a family preservation plan, TDPRS received calls concerning alleged drinking and drug use by P.G. and S.L., as well as an alleged fight between the couple at a relative's home. However, when questioned by McAfee, the couple denied the allegations.

In August 2001, only twelve days after the family preservation case was opened, an incident of family violence occurred between P.G. and S.L. During an altercation regarding B.M.L., P.G. stabbed S.L. in the leg with a knife. At some point during the incident, B.M.L.'s head was bumped on a door frame. All four children were present in the home at the time of the incident. As a result of continued family violence and past drug abuse, all four children were immediately removed from P.G. and S.L.'s care on or about August 6, 2001. In order for P.G. and S.L. to regain custody of their children, TDPRS created a series of four family service plans. As part of their service plans, P.G. and S.L. were to obtain chemical dependency assessments and psychological evaluations, to submit to and test negative in random drug screens, and to attend parenting classes and counseling sessions for anger management, drug addiction, and domestic violence. Both parents complied with the service plans by completing parenting classes and obtaining chemical dependency assessments. However, during the first and second service plans, neither P.G. nor S.L. obtained a psychological evaluation or attended counseling sessions for anger management, drug addiction, and domestic violence. Both P.G. and S.L. likewise failed to complete counseling sessions for anger management, drug addiction, and domestic violence as required by the third service plan. Over the course of the four service plans, P.G. tested positive for drug use, and both P.G. and S.L. failed to submit to drug testing on repeated occasions. P.G. and S.L. completed inpatient treatment for drug abuse, yet refused to participate in a required outpatient relapse prevention program. The couple also never obtained stable living arrangements.

Both parents sporadically attended visitation with the four children and typically never called when they were going to miss scheduled visits. P.G. missed nineteen of sixty-one scheduled visits with her children, including eight of the last ten. S.L. missed seventeen of sixty-one scheduled visits with the children, including seven of the last ten. Initially, as a result of P.G. and S.L.'s failure to attend visits, J.T.G. appeared sad and disappointed, and H.N.M. appeared angry and often displayed her anger. Yet over time, both children appeared indifferent when P.G. and S.L. would miss visitation.

On November 27, 2002, TDPRS filed a second amended petition to terminate P.G.'s parental rights to all four children, and S.L.'s parental rights to B.M.L. According to TDPRS, the decision to terminate P.G. and S.L.'s parental rights was based upon noncompliance with TDPRS's service plans, concerns about P.G. and S.L.'s continued drug and alcohol abuse, and TDPRS's belief that P.G. and S.L. were unable to properly care for the children and provide a safe and stable environment for them. On January 24, 2003, after several days of testimony at trial, a jury determined that P.G. and S.L.'s parental rights should be terminated, and the trial court entered a termination order on February 18, 2003. This appeal followed.


A parent's rights to "the companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); accord Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The United States Supreme Court, in discussing the constitutional stature of parental rights, states, "[T]he interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). Nonetheless, while parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.2002). Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right. Id.

In proceedings to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, TDPRS must establish one or more of the acts or omissions enumerated under subsection (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001 (Vernon 2002); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.App.-Waco 2002, pet. denied). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). Because of the elevated status of parental rights, the quantum of proof required in a termination proceeding is elevated from the preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 746, 102 S.Ct. at 1391; see also Tex. Fam.Code Ann. § 161.001.

Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of...

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