In the Interest of B.L.D. and B.R.D.
| Decision Date | 18 July 2001 |
| Docket Number | No. 10-99-335-CV,10-99-335-CV |
| Citation | 56 S.W.3d 203 |
| Parties | (Tex.App.-Waco 2001) IN THE INTEREST OF B.L.D. AND B.R.D., CHILDREN |
| Court | Texas Court of Appeals |
Before Chief Justice Davis, Justice Vance, and Justice Gray
This is an appeal from the termination of the parental rights of Spring and Jimmy Dossey over two of their three children, B.L.D. and B.R.D. A third child was born during the course of these proceedings and was placed with a friend shortly after birth. That child is not a subject of this case. Spring and Jimmy appeal on multiple points of error. Because we believe Spring and Jimmy were not effectively represented at trial due to a conflict of interest caused by their having a single court-appointed lawyer, and because the construction of the charge deprives them of their right to a verdict by at least ten or more jurors, we will reverse for a new trial.
Before the events in this case, Spring's and Jimmy's only contact with the Texas Department of Protective and Regulatory Services - Child Protective Services ("CPS") was in 1995 just after their first child, B.L.D., was born. Spring, age eighteen, was taking her thirteen-year-old brother to school. At the car her brother realized he had forgotten his school books. Spring set B.L.D., who was in his car-seat carrier, on the trunk of the car and went back to retrieve the books. Her brother got into the car and slammed his door, causing B.L.D. to fall off the trunk. B.L.D.'s skull was fractured, but he fully recovered. CPS investigated and found the incident to be an accident.
On February 23, 1998, Spring and Jimmy had been living in a rented trailer home for about two weeks. With them were their two sons, B.L.D., age three, and B.R.D., age one-and-a-half. Spring was seven-and-a-half months pregnant with their third child. Jimmy, age twenty-one, rarely worked because he had a serious heart disease and a pacemaker.1 During the course of these proceedings he was placed on social security disability. Spring, also age twenty-one, often worked two jobs to make ends meet.
The morning of February 23 Jimmy took Spring to the emergency room because she was suffering from a painful ear infection. "Wicks" were put in her ears and medication was prescribed. Once home, Spring, groggy from lack of sleep and medication, lay down to rest and took B.R.D. with her. Jimmy and B.L.D. were outside. Spring told authorities she was awakened by B.R.D.'s cries. She found him on the kitchen counter-top at the sink. He had been seriously scalded on his right foot. Testimony at trial was that the hot water coming from the tap in the trailer was heated to 180 instead of the normal 115 to 120. Spring called out to Jimmy, and they took B.R.D. to the emergency room. Nurse Duncum, a treating nurse at the hospital, was suspicious of the injuries because of the pattern of the scalding which she thought was inconsistent with an accidental event. She called CPS which sent personnel to the hospital. Both boys were taken into custody by CPS.
Initially Spring told authorities she knew nothing about how the injury occurred. Later, after failing a polygraph test, she admitted that she heard B.R.D. making playful noises and found he had pulled a chair to the sink and was playing in the water. Trial testimony from several witnesses including CPS workers was that at the time B.R.D. was rambunctious and "a climber." Spring turned off only the cold water tap, not realizing the hot water was also on, and briefly turned her back. B.R.D.'s foot made contact with the 180 water and he was scalded. Spring said she initially lied because, with her background of being sexually abused by her father, she thought she might be suspected of abuse. Criminal charges were later brought against Spring for the injury, but she was never indicted. The CPS agent who had primary oversight for the case, Ms. Sheffield, testified at trial she thought the injury was accidental. She said that had CPS believed there was an intentionally-inflicted serious injury, CPS would never have recommended, as it did later, reunification of the family. B.R.D. fully recovered from the scalding.
The State instituted legal proceedings regarding custody,2 and a Plan of Service was implemented. Jimmy and Spring had to undergo counseling and pay child support. Finances, housing, and transportation were a continual problem. Also, CPS had a strong objection to the children being around Spring's father who had sexually molested her from ages seven to seventeen, and who was currently involved in adult pornography. Spring took measures not to associate with her father. Finally, Spring's and Jimmy's third child had been born and, with CPS's approval, was placed with their friend, Ms. Brewington.
In spite of these problems, at a status hearing on October 27, 1998, CPS suggested that by February 1999, and regardless of the scalding incident, the conditions would probably be ripe for returning the children. However, the trial court thought conditions had improved enough to order B.L.D. and B.R.D. returned to Spring and Jimmy immediately. The family was reunited, but housing continued to be troublesome. In late 1998, Jimmy, B.L.D., B.R.D., and the baby lived for a number of weeks with Brewington and her family.
On January 9, 1999, Jimmy stole a gun from his next-door neighbor's house. He testified he intended to sell it to get money for his family. He avoided prosecution by becoming an undercover "buyer" for the Agriplex Drug Taskforce. Both of these pieces of evidence were admitted at trial over objection.3 Meanwhile, by February 1999 Brewington was not cooperating with Spring and Jimmy on their requests for overnight visitations with the baby. Instead, Brewington called CPS and reported that when Spring and Jimmy were staying with her back in the Fall of 1998, Brewington found a picture in the recycle bin of her computer of a "child" engaged in sexual intercourse. The picture was admitted into evidence at trial.4 Through some sleuth work of her own using the date and time the picture had been deleted to the recycle bin, she suspected that Jimmy was the culprit who originally downloaded the picture from the internet.5 Over objection, this evidence was introduced at trial. Brewington admitted at trial that her own children and their friends viewed pornography on the computer, and that several other people had access to it. After this accusation, CPS again took B.L.D. and B.R.D. into custody.
Two additional incidents occurred shortly before trial. There was an altercation between Spring and Jimmy in a Wal-Mart parking lot. Jimmy was charged with a Class C assault on Spring for chasing and punching her. Over objection, this evidence was admitted at trial. In addition, Jimmy failed two of his periodic drug tests, one for marijuana use and another for methamphetamine use.
About two months before trial Spring's and Jimmy's retained lawyer made a motion to withdraw because Spring and Jimmy could no longer afford to pay him. Spring and Jimmy requested the court to appoint that same lawyer to represent them. The court refused and appointed another lawyer who then had two months to learn the case and prepare for trial.
The record from hearings that took place over the six to eight months before trial indicates a growing concern on everyone's part about the August 27, 1999, date which was approaching for the State to either move for dismissal and possibly have to return the children, or proceed to a termination trial. Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2001); see, e.g., In re Bishop, 8 S.W.3d 412, 418-19 (Tex. App.--Waco 1999, orig. proceeding). The case was tried to a jury August 23-26, 1999. B.R.D. was now five years old, and B.L.D. was three years old. The State called an array of witnesses including a psychologist, Dr. Shinder, who said the parental relationships should be terminated. By a vote of ten to two, the jury found that Spring's and Jimmy's parental rights should be terminated.
Spring and Jimmy bring eight issues on appeal.
1. Spring and Jimmy should have had separate court-appointed lawyers at trial. A conflict of interest prevented a single lawyer from effectively representing them both.
2. Nurse Duncum was not qualified to testify as an expert about whether the scalding was intentionally caused.
3. The evidence was legally and factually insufficient that Spring and Jimmy knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children.
4. The evidence was legally and factually insufficient that Spring and Jimmy engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.
5. Evidence of Jimmy's alleged sexual misconduct and other bad acts was inadmissible.
6. There should have been specific questions asked of the jury about whether termination was in the best interest of the children.
7. The jury should have been asked to decide separately which of the two statutory grounds alleged for termination had occurred; the disjunctive charge and broad form questions precluded this.
8. The Judgment improperly failed to include specific findings of the grounds for termination.
We will consider the issues out of order, as necessary to dispose of the appeal.
Spring and Jimmy initially hired a lawyer to represent them. That lawyer, Ray, worked on the case from April 1998 to June 1999, when Spring and Jimmy ran out of money. They asked the court for a court-appointed lawyer and for Ray to be appointed. Instead, the court appointed Villarrial who was not previously involved with the case.
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