In re L.B.
| Decision Date | 20 March 2014 |
| Docket Number | No. 05-13-01615-CV,05-13-01615-CV |
| Parties | IN THE INTEREST OF L.B. AND A.B., CHILDREN, |
| Court | Texas Court of Appeals |
AFFIRMED; Opinion Filed March 20, 2014.
On Appeal from the 15th Judicial District Court
Grayson County, Texas
Before Justices O'Neill, Myers, and Brown
Opinion by Justice Myers
Appellant appeals the trial court's judgment terminating his parental rights to his children, L.B. and A.B. Appellant brings six issues on appeal contending (a) the trial court erred by allowing the intervenor to call an expert witness out of order; (b) the evidence was legally and factually insufficient to support the jury's findings on the statutory grounds for termination; and (c) the evidence was legally and factually insufficient to support the jury's finding that termination of appellant's parental rights was in the best interest of the children. We affirm the trial court's judgment.
BACKGROUND
The trial in this case was held the week after appellant's trial for the murder of Sarah Swaim, the children's mother. The judgment in that case states the jury found appellant guilty of murder under section 19.02(b)(1) of the Texas Penal Code and assessed his punishment at life imprisonment and a fine of $10,000. That judgment is on appeal.
L.B. was born in January 2011. On April 4, 2011, L.B. was removed by the Texas Department of Family and Protective Services (the Department) in Rockwall from appellant and Swaim's possession following an altercation. Appellant and Swaim had been doing drugs. When they were coming down from the drugs, appellant and Swaim got into an argument. Appellant picked up L.B. and took her to the car. Swaim followed, arguing with appellant. Swaim attempted to hit appellant but missed, hitting L.B. The police were called, and both appellant and Swaim were arrested. The Department placed L.B. with Swaim's grandmother, Judy Hunnicutt, where she remained until January 2013. During that time, L.B. progressed well in Hunnicutt's care. The Department set up services for appellant and Swaim, including parenting classes, drug treatment, drug assessment, random drug testing, counseling, and visitation with L.B. Appellant missed some of the drug tests and visitations, but he completed the parenting classes, drug treatment, drug assessment, and counseling sessions. Appellant passed all the drug tests he took, including a hair-follicle test. The trial court in Rockwall returned L.B. to appellant and Swaim's possession in January 2013.
A.B. was born in February 2012. He was removed from appellant and Swaim's possession in October 2012 due to concerns about the condition of the home, neglectful supervision, the history of domestic violence and drug use, and appellant's and Swaim's failure to comply with the Department's services after L.B. was removed. A.B. was placed with appellant's half-sister, Ashley Bowser, and her husband. Witnesses testified A.B. was well cared for by the Bowsers.
On the evening on February 7, 2013, appellant called the police and told them Swaim was missing. He told the officers that on the night of February 6, 2013, he and Swaim had been drinking shots of vodka when they began to argue. Appellant told the officers he did not want toargue with her, and he went to bed. A short time later, he heard the door slam, and he never saw Swaim again.
Appellant's employer found Swaim's body wrapped in garbage bags and rolled in carpet on a pile of trash to be burned on the employer's property. Appellant's employer and another employee testified they saw appellant unloading the roll of carpet from his van on the morning of February 7, 2013. When they heard that Swaim was missing, they decided to check the roll of carpet, and they found Swaim's body. The police then arrested appellant for Swaim's murder.
At his criminal trial, appellant testified to different events than he related to the police on February 7. Appellant testified he and Swaim had been consuming large quantities of alcohol. Appellant was in the kitchen at the front of the house and Swaim was in the bedroom at the back of the house when appellant heard a crash in the bedroom. When appellant got to the bedroom, he saw Swaim lying on the floor between the bed and the wall, bleeding from her mouth. Appellant told Swaim to be quiet so she would not awaken L.B., who was in a crib next to the bed. Appellant then went to bed. When appellant awoke the next morning, Swaim was cold and stiff. Appellant attempted to awaken her and he performed CPR, but Swaim did not revive. Appellant carried her body out of the bedroom, wrapped her in garbage bags, rolled her up in some old carpet, and took her to his employer's trash pile. Two-year-old L.B. had been in her crib in the bedroom with appellant and Swaim. Appellant did not want to leave her alone at the house, so he took her with him when he drove with Swaim's body in the back of the van to the trash pile where he left Swaim's body.
The medical examiner testified that Swaim "died as a result of strangulation and blunt force injury." Swaim's body had bruises in different stages of healing on her head, neck, tongue, face, the top half of her body, her legs, her pubic area, and at the opening of her vagina. The bruises on her pubic area and vagina were the result of blunt force injury and could not havebeen caused by a fall. Swaim also had bruising in the spacing between the ribs on both sides of her chest, a fresh rib fracture in the area of the bruising, and an old rib fracture. Swaim also had defensive injuries, bruising in her hands. Swaim's liver was torn, which could only have been caused by the infliction of great force. Swaim's blood alcohol level was .328, but Swaim did not die of alcohol poisoning.
Many witnesses testified to the tumultuous nature of appellant and Swaim's relationship. Neighbors testified to hearing them screaming at each other and throwing things in the middle of the night. A neighbor testified that one of the incidents of appellant and Swaim screaming at each other in the middle of the night occurred when A.B. was at the home. The neighbors would call the police, but appellant and Swaim would become silent when the police arrived and would not open the door. One neighbor testified she saw appellant pulling Swaim by the hair toward the house "cussing her out" while Swaim, who was about eight months pregnant at the time, was struggling and screaming.
Appellant's stepfather, Mark Watkins, who lived in the same neighborhood, testified that Swaim walked to his house one night carrying A.B. Swaim was hysterical, scared, and so intoxicated Watkins had difficulty understanding her. Appellant drove up soon after and was also intoxicated and incoherent. Watkins told appellant to leave the child with him until the next morning, but appellant took the baby away from Swaim and, still intoxicated, drove back home with the child.
During his criminal trial, appellant also testified that he, his former girlfriend, and Swaim were in a hotel room using marijuana, cocaine, and alcohol while caring for appellant's and the former girlfriend's two children. An incident occurred and the police were called. Appellant was arrested on an outstanding warrant. When he was released from jail, Swaim told him he hadhead butted her. Appellant testified at the criminal trial that he did not remember the details because of the alcohol and drug use.
In this trial, appellant was asked about his use of drugs and alcohol, his physical abuse of Swaim and his former girlfriends, his screaming profanities at Swaim, and his testimony at the criminal trial, and he refused to answer, invoking the Fifth Amendment privilege not to incriminate himself.
Witnesses testified that Swaim admitted she and appellant had the children in their care while using cocaine and alcohol. The witnesses testified Swaim made these statements in appellant's presence and that appellant did not contradict her. However, other witnesses testified that appellant was a good and loving father and took good care of his children.
After Swaim's murder and appellant's arrest, the Department returned L.B. to Hunnicutt's possession. Hunnicutt testified that when L.B. was returned to her, the two-year-old child would "cuss"; was no longer potty trained; "screamed for bloody murder" when Hunnicutt put her to bed; would hit Hunnicutt all over with her bottle; and would wrap her dolls up, lay them face down, and hit them.1 L.B. has been going to counseling, and her behavior has improved. Hunnicutt testified that if appellant's parental rights are terminated, she plans to seek adoption of L.B.
Bowser testified that she and her husband intend to seek adoption of A.B. if appellant's parental rights are terminated.
After Swaim's murder and appellant's arrest, the Department filed a petition for termination of appellant's parental rights. Hunnicutt and Dina Derebery, who was appellant's mother and the children's paternal grandmother, each filed petitions in intervention. Hunnicutt asked that appellant's parental rights be terminated and that the Department be appointed the children's permanent managing conservator or, alternatively, that she be appointed their permanent managing conservator. Derebery's petition in intervention asked that she be appointed sole managing conservator of the children.
The jury found from clear and convincing evidence that appellant knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being; was convicted of the murder of the children's other parent under section 19.02 or 19.03 of the Texas Penal Code; and knowingly engaged in criminal conduct that resulted in his conviction for an offense and confinement or imprisonment and inability...
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