In the Interest of C.H.

• Decision Date: 14 December 1996
• Citation: 25 S.W.3d 38
• Parties: (Tex.App.-El Paso 2000) IN THE INTEREST OF C.H., D.O.B
• Court: Texas Court of Appeals

Page 38

25 S.W.3d 38 (Tex.App.-El Paso 2000)

IN THE INTEREST OF C.H., D.O.B. 12/14/96

No. 08-98-00183-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

April 20, 2000

Appeal from the 65th District Court of El Paso County, Texas (TC# 95-5636) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Panel No. 1 Larsen, McClure, and Chew, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice

This is an appeal from a judgment terminating the parent-child relationships between C.H., a minor child, and his biological parents, Susan Hylton and Robert Garris. In two points of error, Ms. Hylton and Mr. Garris challenge the jury findings as legally and factually insufficient.

I. Facts of the Case

Because of the evidentiary challenges, providing a detailed account of the record before us is necessary. The witnesses at this jury trial were both parents, two probation officers, five Department of Protective and Regulatory Services case workers, a police officer, a Court Appointed Special Advocate ("CASA") volunteer, two officials of the Substance Abuse Felony Probation, and the maternal grandmother.

The mother, Susan Hylton, was for seven years, beginning at the age of seven, sexually abused by two family members. In 1992, then fifteen years old, she began abusing drugs and running away from home. She became involved in prostitution and theft. In November 1992, the Texas Department of Protective and Regulatory Services ("the Department") became involved with Ms. Hylton, at the initiative of her mother, Judith Moore, and in November 1993, she was committed to the Texas Youth Commission in Brownwood, Texas. Four months later, she gave birth to a daughter. The Department in Bexar County, Texas immediately sought and obtained custody of the infant, and placed the mother and daughter together at the San Antonio Salvation Army Home for Girls. When Ms. Hylton completed the Salvation Army's program, she returned to foster care in El Paso. The Bexar County Department officials transferred Ms. Hylton's daughter's case to El Paso County so that mother and infant could be placed with the same foster care provider.

The record is mostly silent about events soon after their return to El Paso, but it appears that Ms. Hylton was released from custody on reaching her majority. It is evident that an antagonistic relationship developed between Ms. Hylton and the Department over her child's custody. Despite considerable efforts to address Ms. Hylton's continued substance abuse problems, the Department had, by the fall of 1995, abandoned all reunification efforts and begun involuntary termination proceedings.

In December 1995, then eighteen-year-old Ms. Hylton began living with Robert Garris, a thirty-six-year-old African-American. A ten-year Army veteran, who was honorably discharged some years earlier, Mr. Garris was married but estranged from his wife and their teenage son. He had then an extensive criminal record that included a term of imprisonment. His admitted livelihood since 1991 was drug dealing and he was himself an addict.

In March 1996, Ms. Hylton consented to her daughter's adoption and relinquished her parental rights; her mother and Mr. Garris witnessed her affidavit doing so. Mr. Garris testified at the trial that Ms. Hylton had told him that same month that she was pregnant. He claimed that he encouraged her to seek medical care and Ms. Hylton confirmed that she had done so. Both of them admitted at trial that they were using cocaine during this period. They were arrested together in a motel room and charged with possession of cocaine and heroin in May 1996.

Mr. Garris remained jailed until July 30, 1996, when he entered a plea of guilty and received deferred adjudication and community supervision. The record reflects that Ms. Hylton was released much sooner because, on Thursday, June 13, 1996, she went to see Ms. Diane Barajas, her former Child Protective Services caseworker. Ms. Barajas testified that Ms. Hylton said that she might be four or five months pregnant, that she had been using a lot of cocaine, that she had been arrested with Garris and he was still in jail, and that she had no place to live. Ms. Hylton asked Ms. Barajas for help getting into the Aliviane drug treatment center for her baby's sake. Ms. Barajas took Ms. Hylton to the Aliviane Center where Ms. Hylton admitted herself. Ms. Barajas testified that she called the center some days later and was told that Ms. Hylton had left. The record reflects that Ms. Hylton checked out on June 21, 1996, eight days after she had admitted herself.

After Mr. Garris was released from jail, he visited Ms. Hylton once at her mother's home in early August 1996. He was arrested on drug charges in August and November 1996 and after the latter arrest, his probation was revoked. He was sentenced to ten years' imprisonment and he was serving that sentence at the time of this trial.

Though never explained, Ms. Hylton was clearly back in jail in early to mid-August 1996, and she remained jailed until after C.H.'s birth. During these last five months of her pregnancy, she received regular prenatal care and her son was born at Thomason General Hospital on December 14, 1996. The hospital discharged and released the infant to his grandmother, Judith Moore, four days later. Ms. Hylton was then released on probation on December 24, 1996, and she immediately joined C.H. at her mother's home.

The record contains varied allegations by the Department that C.H. suffered drug withdrawal symptoms at birth. As an example, the first Family Service Plan stated that C.H. was "affected at birth by drugs taken by the mother during pregnancy," and "[C.H.] has been diagnosed with sickle cell anemia, and may be developmentally delayed in the future or have learning problems due to the mother's drug use during her pregnancy." We find no evidence that the child tested positive for cocaine at birth, that he was born premature, or that he had any physical defect or developmental delays indicative of in utero ingestion of cocaine. In fact, all testimony and photographs, suggest that C.H. was a full term, normal, well-developed baby at birth.

Ms. Hylton and C.H. were still living with her mother in early February 1997, when Robin Zajac, Ms. Hylton's probation officer, visited the home. About a week later, however, Ms. Hylton and C.H. left Mrs. Moore's house and they moved into an apartment with Ms. Hylton's new boyfriend, Michael Russey. There are few details about Mr. Russey provided except that he had a criminal record for burglary and sexual assault and was on probation.

Mrs. Moore testified that she visited her daughter and grandson at their apartment once or twice a week and that she cared for C.H. Friday or Saturday nights so her daughter would have some time off. She stated that the apartment was clean and tidy when she visited and that her family had helped Ms. Hylton and Mr. Russey furnish it. She also told the jury that though she was keeping a close watch, she never saw any sign of drug use by her daughter. During this time, C.H. had received neonatal checkups and Ms. Hylton was receiving welfare benefits for herself and her baby.

At 4 a.m. Sunday, March 9, 1997, Mr. Russey flagged down a passing police car. He told the officers that he had been in a fight with his girlfriend and that drugs were being used in the apartment. The police officers and Mr. Russey went to the apartment. While one officer and Russey went to the front door, the other officer, Arturo Chavarria, went to the rear door. Officer Chavarria testified that he could see into the apartment through the rear door window and that when his partner knocked at the front door, an African-American male opened the door of the bedroom. The man came out wearing only unbuttoned pants. At the same time, Officer Chavarria saw Ms. Hylton in the same bedroom, on the side of the bed, undressed, putting on a gown. When Officer Chavarria joined his partner and Mr. Russey inside, all of the adults in the apartment had been gathered. The officer testified that besides Ms. Hylton and the man who came out of the bedroom, there were two other couples.

C.H. was found asleep in the bedroom in a playpen. The playpen was in the corner of the bedroom, a short distance from the foot of the bed, on the same side of the bed the officer had seen Ms. Hylton putting on her gown. At the head of and beside the bed, on the carpeted floor, the police found a spoon containing cocaine residue, matches, a plastic baggie, and empty balloons identified as associated with heroin use. In the same spot, there was a clutter of paper scraps, an empty pack of cigarettes, cups, and a paper fountain cup used as an ashtray. On the adjacent nightstand, there was an eyeglass lens with cocaine residues in the concavity of the lens. Elsewhere police found a suspicious spoon in the bathroom and a discarded plastic syringe on the linoleum tiled floor of a closet or storage space.

In the living room and bedroom, there were several mounds of clothing strewn on the floor and on an armchair. Boxes and luggage were stacked next to the armchair. In the apartment's core hallway, the walls beside the kitchen and bathroom and a closet door were spattered with frying pan grease. Two panes of glass in the casement window of the living room were broken out. Witnesses described the apartment as, at worst, "filthy" and "a disaster," and at best, "messy" and "in disarray." The photographs of the apartment admitted into evidence, showed that at the very least, it was messy, cluttered, and unkept. In contrast, the playpen, where C.H. was sleeping, was filled with stuffed toys and appears clean and well kept. Photographs show C.H. dressed in pajamas, covered with a blanket, and a nursing bottle at his side.

Ms. Hylton admitted at trial that she and Russey had been smoking cocaine that night. She testified that she and Russey had a violent argument which was confined to...