In re J.F.C.
- Reporters:
- , ,
- Before:
- Davis, Vance, Gray
VANCE, Justice.
Paige Cox, born 1967, and Tawnya Cox, born 1971, were married in 1990. They are the biological parents of the children who are the subject of this case: a daughter J.F.C., born December 15, 1992, and two sons, A.B.C., born November 4, 1994, and M.B.C., born March 8, 1997. Because of a referral to the Texas Department of Protective and Regulatory Services—Child Protective Services (“CPS“) that Tawnya had slapped A.B.C. and left a bruise, CPS investigated the Cox family in 1997 and found what it believed to be sufficient reasons to place the Coxes under supervision. There were no further incidents for the next seven months until another referral of abuse was made, an investigation of which revealed some marks on A.B.C. About ten days later, another referral for abuse could not be substantiated. However, because of the continual discord between Paige and
Paige and Tawnya bring eleven issues on appeal. Among them is a complaint about the court‘s charge, i.e., a faulty instruction about the requirement that termination be in the best interest of the children. We will sustain this complaint, hold that due process was violated, and reverse for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
In March 1996, CPS received a referral of possible sexual abuse by Paige of J.F.C. and A.B.C. An investigation revealed no evidence of abuse and no evidence of sexual activity or drug use in the presence of the children.
A year later in early March 1997, M.B.C. was born. In late March, CPS received information that Paige and Tawnya had drug problems, were physically abusive to one another, and may have been physically abusing the children. CPS investigated and found some bruises around A.B.C.‘s left eye. From their interviews with Paigе and Tawnya, CPS learned that there was some drug use in the home. Paige complained that Tawnya was physically abusive of Paige and had sexual affairs with other men. In addition, Tawnya was bipolar and on medication. CPS concluded a need to place the Cox family under supervision. Removal of the children was ruled out because they were not in immediate danger.
In weekly home visits over the next seven months, no abuse was found. However, CPS was unhappy that Paige and Tawnya were not participating in counseling as instructed and that they continued to have conflicts between themselves. Tawnya did agree to a psychiatric evaluation, from which CPS concluded she was not an immediate threat to the children.
In October 1997, CPS received a referral that Tawnya had handled A.B.C. too roughly when placing him in his car seat. CPS investigated and found some marks and scratches on A.B.C.
About ten days later, a referral was made to CPS of a bruise to A.B.C. CPS workers investigated and found no marks or bruises on any of the children. However, CPS found the children were not attending daycare and determined that “the emotional health of both рarents was deteriorating.”1 Furthermore, Paige and Tawnya continued to yell and argue with one another, and they had substantial marital problems and financial hardships. CPS removed the children from the home and the State filed suit for temporary conservatorship.2
Two months later in December 1997, a Family Service Plan was filed with the court recommending what Paige and Tawnya should be required to do to get the children back, including but not limited to, a psychiatric evaluation for Tawnya, maintaining employment, attending counseling, and paying child support. The court aрproved the Plan and ordered Paige and Tawnya to show compliance by May 1,
It was primarily the failure to fully comply with the Plan that led to the State‘s amending the petition in April 1998 and seeking to terminate parental rights. For example, Paige attended five of eleven therapy appointments, and Tawnya attended six of thirteen therapy appointments. Both were dropрed from treatment by the therapist. Anger management and parenting classes were not attended. Child support was not paid. Urinalysis-test appointments were missed. Paige and Tawnya were evicted from their home. They told their CPS case worker they did not want to comply with the Plan. They resented it and did not find its requirements useful. Tawnya did not think CPS would ever return the children. Eventually, Paige and Tawnya moved to Austin to “get a new start.” A fourth child, S.H.C., was born on January 19, 1999.3
Conflicts between CPS and Paige and Tawnya continued, and the requirements of the Plan were not met. At a jury trial in February 1999, there was еvidence of the discord between Paige and Tawnya in the home, their violent tendencies toward each other, and their loud arguments in front of the children. The incidents in which CPS investigated abuse were testified to. A psychologist and a therapist testified against the continuation of the parent-child relationship. Paige and Tawnya also admitted using small amounts of drugs, although not in the children‘s presence. They did not use alcohol. Both testified they did not fully comply with the Plan for a variety of reasons having much to do with dislike and mistrust of CPS. They denied many of the State‘s acсusations, while admitting others. At one point this exchange occurred between the State‘s counsel and Paige:
Q: ... Do you take any responsibility for your children being removed from your home or the situation you‘re in, or is it everybody else‘s fault?
A: I‘m going to be honest with you, that I‘m not a perfect parent and I‘m not a perfect man, but by the grace of God, see, I give account to a higher authority, not to CPS, not to the courts, not to McLennan County, not to Travis County. I give an account to God each night before I go to bed about how I handle my children, about how I deаl with my wife, and he‘s a much [higher] standard than any standard you can come up with, so by the grace of God, you know, I have— there are certainly areas in my life that I need to better, and that‘s why, as you said earlier, I compare my life to Christ. That‘s why as I get closer to Christ in my life and become more Christlike, I find that my life becomes absent of undesirable attitudes....
This exchange occurred with Tawnya:
Q: This is a pretty chaotic relationship, isn‘t it?
A: After everything we‘ve been through, yes, but thank God since we have been out of the City of Waco and my husband and I have had time to mend our relationship because we want our children back,
it has been wonderful, and I praisе God for that. I couldn‘t ask for a better husband or a father.
Based on the jury‘s answers, the court signed a judgment terminating both parents’ rights.
On appeal, Paige and Tawnya bring eleven issues. However, we address only those issues which pertain to the court‘s charge to the jury.
ISSUES 5, 6, AND 7: THE CHARGE
The jury was instructed as follows, which appeared on page three of the charge:
With regards to TAWNYA LYNN COX, for the parent-child relationship to be terminated in this case, it must be proved by clear and convincing evidence that she has done at least one of the following:
A. Engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
OR
B. Failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child‘s removal from the parent under Chapter 262 for the abuse or neglect of the child.
With regards to PAIGE ALONZO COX, for the parent-child relationship to be terminated in this case, it must be proved by clear and convincing evidence that he has done at least one of the following:
A. Knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;
OR
B. Failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent оr temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child‘s removal from the parent under Chapter 262 for the abuse or neglect of the child. For the parent-child relationship to be terminated in this case, it must also be proved by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the children. [Italics added]
Paige and Tawnya maintain the jury charge was inadequate and violated their constitutional due process, due course of law, and equal protection rights. Specifically, they complain the jury was never asked to make an affirmative finding whether terminatiоn would be in the best interest of the children. Only an instruction about that was given. Furthermore, the instruction was placed in the charge in
At trial, Paige and Tawnya failed to object to the charge or to request quеstions and instructions as required by
In A.P., we were confronted with an unpreserved sufficiency complaint about the “core issues” at stake in a termination case, i.e., the Section 161.001(1) grounds for termination, and whether termination is in the best interest of the child.
In A.P., we noted that the “natural right existing between parents and their children is of constitutional dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (referencing In re G.M., 596 S.W.2d 846, 846 (Tex.1980)). “[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982); See also Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (grandparent‘s rights case: “[T]he interest of
Because of the right‘s elevated status, the quantum of proof required in a termination proceeding is elevated from preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 747, 102 S.Ct. at 1391. “[S]tate intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause.” Id., 455 U.S. at 753, 102 S.Ct. at 1394 (quoting Lassiter v. Department of Social Services, 452 U.S. 18, 37, 101 S.Ct. 2153, 2165, 68 L.Ed.2d 640 (1981) (first dissenting opinion), and at 24-32, 101 S.Ct. at 2158-2162 (opinion of the Court), and at 59-60, 101 S.Ct. at 2176 (STEVENS, J., dissenting)); see also M.L.B. v. S.L. J., 519 U.S. 102, 120, 117 S.Ct. 555, 566, 136 L.Ed.2d 473 (1996) (state statute denying appeal from a termination proceeding because appellant could not afford the cost of the record violated procedural due process and equal protection). Therefore, “termination proceedings should be strictly scrutinized.” Holick, 685 S.W.2d at 20.
Just as in A.P., we are not persuaded that application of
We believe the better—and constitutional—approach is to review such a charge complaint. Our holding is limited to complaints raised on appeal about “core issues” in the court‘s charge in an involuntary termination case.5 We hold that when such a challenge to the charge is made on appeal, and no motion, request, or objection was made at the trial court which would have preserved the complaint for appellate review, we will nevertheless review the complaint. This is an extension of our decision in A. P. for the due-process reasons therein stated.
Our conclusion comports with the requirements in Lassiter. The question of “what process is due” is to be answered by presuming that the procedure in question, i.e., that unpreserved complaints about the charge will not be reviewed on appeal,
ERROR ANALYSIS
By six broad-form questions the jury was asked: “Should the parent-child relationship between [Paige or Tawnya] and [J.F.C., A.B.C., or M.B.C.] be terminated? Answer `Yes’ or `No‘.” Paige‘s and Tawnya‘s issues five, six, and seven raise complaints about the court‘s charge. The first is that the jury should have been asked to return affirmative findings about whether termination would be in each child‘s best interest. Their second complaint is that the disjunctive form of the instructions about the grounds for termination was improper because it allowed some jurors to rely on one ground for termination while others relied on another ground, so that the vote of at least ten on the same ground was not required.
Broad-form questions “whenever feasible” are required by Rule 277 of the Rules of Civil Procedure.
Disjunctive questions are also approved by Rule 277 of the Rules of Procedure “... when it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists.” Paige and Tawnya testified they failed to fully cоmply with the court order referred to in parts “B” of the charge. In addition, the disjunctive form of the instructions was approved in E.B.: “The controlling question in this case was whether the parent-child relationship between the mother and each of her two children should be terminated, not what specific ground or grounds under § 15.02 [now § 161.001] the jury relied on to answer affirmatively the questions posed.” Id. Again, the disjunctive form is also recommended by the Pattern Jury Charges. Texas Pattern Jury Charges: Family PJC 218.3B (1998). Therefore, the second complaint is overruled.
However, the third complaint about this charge is the positioning of the instruction regarding the best interest of the children. By any reasonable reading, the charge does not require the jury to find that the termination of Tawnya‘s rights was in the best interest of the children. Nor does it require that the termination of Paige‘s rights be in the best interest of the children except as to ground “B.” This constitutes an obvious and fundamental charge error. The charge fails to require all the findings that, under the Family Code, are necessary to terminate parental rights.
HARM ANALYSIS
Charge error is reviewed for harm by “consider[ing] the pleadings of the partiеs, the evidence presented at trial, and the charge in its entirety. [Error] will be deemed reversible only if, when viewed in the light of the totality of these circumstances,... it probably [caused] the rendition of an improper judgment.” Island Rec. Dev. v. Republic of Texas Sav., 710 S.W.2d 551, 555 (Tex.1986);
In its petition, the State properly alleged the statutory grounds for termination regarding both Paige and Tawnya, as well as that termination was in the children‘s best interest. Therefore, all issues which needed to be joined were.
However, from this charge the jury could very well have terminated Tawnya‘s rights solely on the basis of either of the two statutory grоunds and without finding that termination was in the best interest of the children. The jury simply was never asked to decide if termination of Tawnya‘s rights was in the best interest of the children. Nothing else in the charge clarifies this blatant mistake. Furthermore, the evidence that termination of Tawnya‘s rights was in the children‘s best interest, as it was presented at trial, does not cure the charge error. While the lawyers mentioned the issue of “best interest” a number of times during voir dire, opening statements, and closing arguments, they did not at any length discuss the evidence specifically in relation to the nine Holley v. Adams factors listed on page four of the charge. Also, this evidence, described previously, was not highly persuasive that termination of Tawnya‘s rights was in the children‘s best interest. Therefore, considering the pleadings, the entire charge, and the evidence as it was presented about “best interest,” we find that this charge error probably did cause rendition of an improper judgment as to Tawnya.
CONCLUSION
We reverse the judgment and order of termination as to both Paige and Tawnya, and remand the cause for a new trial.
Justice GRAY dissenting.
GRAY, Justice, dissenting.
The constitutional protection of procedural due process does not require a reversal of the judgment in this case. The сharge was not as precise as it could have been. But the parents had a full trial on the merits. They had the opportunity to object to the charge. They did not. The majority‘s adoption of what is essentially a criminal standard of review for charge error, which is based on a criminal statute, is not required in this civil proceeding.
There is no reason to disregard the ordinary rules of civil procedure and appellate review in this proceeding. Where it is arguable that a finding necessary to the judgment was not submitted to the jury, the finding is normally implied in support of thе judgment if the implied finding has evidentiary support in the record. But we need not even rely on an implied finding. The trial court made an express finding in the judgment that termination of the parent/child relationship is in the best interest of the children.
Constitutional protections of the parent/child relationship, primarily procedural
In its motion for rehearing the State challenged the majority‘s analysis and application of reviewing a procedural due process challenge. While the majority opinion has been modified and reissued in an attempt to address the issue raised in the motion for rehearing, the majority has failed to address the question of disposing of this case on a procedural due process issue not briefed by either party.
The State has requested that if we are going to dispose of this case on an issue not prеviously briefed, that we at least allow both parties to fully brief the issue. I would grant the State‘s request to require full briefing on the issue and only address the issue after a full opportunity to brief the issue has been afforded both parties. I would not rewrite the opinion based only on the limited briefing in the State‘s motion for rehearing, without even asking for a response. See