### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00389- CV

C. M., Appellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 283 ,065 -B , H ONO RAB LE JACK WELDO N JO NES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant C.M. appea ls the district court’s decr ee of termi n at i o n rendered on the jury ’s verdic t terminating her pare ntal rig hts to her six children, O.M., S.M.-M., J .M.-M., P.M.-M., J .M., and J .P.R.-M. The jury found that as to eac h child Appellant: (1) knowing ly place d or 1 knowing ly allowed the child to rema in in conditions or surrounding s which endang ere d the phy sical

or emotional well-be ing of the child; or (2) eng ag ed in conduct or knowing ly place d the child with persons who e n g a g ed in conduct which endang ere d the phy sical or emotional well-be ing of the child. See Tex. Fam. Code § 161.001(b) (1)( D), (E ). The jur y also found that termination of Appellant’s p ar en t al ri g hts was in eac h child’s best interest. See id. § 161.001(b)( 2). On appea l, Appel l an t contends that the district judge made “incur able” statements comm en t i n g o n t he weight of a

We refe r to the par

ties by their roles in this appea l. SeeTex. R. App. P . 9.8(b). 1witness’s testimony and that Appellant’s trial lawy er provided ineffe ctiv e as s i s t ance . We will 2 aff irm the district court’s de cre e of te rmination.

BACK GR OUND 3 Severa l wi tnesses testified during trial, including Appellant, Depa rtment

conser vators h ip worke r Trac ey Scott, the children’ s guardia n ad litem Carla Wright, and clinical psy cholog ist Dr

. J ames N. Shinder. The jury hear d that Appellant is the biologica l mother of then eleve n-y ear -old O.M., ten-year -old S.M.-M. , nine-y ear -old J .M.-M., five-year -old P.M.-M., two-y ear -old J .M., and ten-month old J.P.R .-M. The uncontrove rted evidenc e at trial showed that Appellant was arr ested for sexual assault of a child, that she was curr ently incar cer ated in the Texas prison sy stem, that her six children wer e fathe red by three differ ent men, that she did not know the fathe r of her fifth child, and that she did not know the name of the fathe r of her six th child, who was born while she w as in prison.

Dr

. J ames N. Shinder testified about Appellant’s psychosexual evaluation and t h e inconsistencies betwee n the response s she provided to him during the evalua tion and the testimony she provided during her subsequent criminal trial involving her sexual acts with her boy friend and

a minor g irl who had been provided with alcohol in Appellant’s home. Dr. Shinder testified about Appellant’s impulsi vity , “extremely poor judgme nt,” and denial of any sexually abusive behavior

. He noted Appellant’s testimony about the circ umstances of her six th child’s conce ption, whi ch resulted afte r she had sex with a man whose name she did not know, who had just fix ed her vehicle. Appellant does not challeng e the sufficie ncy of the evidenc e supporting the jury ’s finding s. 2 The fac ts are summarized from the testimony and exhibi ts admitted into evidenc e at trial. 3 2Dr. Shinder’ s assessment conc luded that Appellant was “incapa ble of a dequate ly

pare nting a

t this time due to sever e dy sfunction as descr ibed.” He testified that a person who abuses a non-biolog ical child has a 12% –15% prope nsity to abuse a

biologica l c hild ne x t, if there is a second of fense . Dr. Shinder also testified t hat he was concer ned about Appellant’s j u d gment as t o the m en she would bring into her home with her children a

round. Appellant acknow ledg ed during her testimony that her children wer e remove d from her beca use of her arr est for sexual assault of a child. Appellant then invoked her Fifth Amendment privileg e not to testify when asked whether she was char g ed with having a sexual relationship with a g irl named S., wher e her children w ere when she was in bed w ith her boy friend a nd S., and how long she was g oing to be in prison.

Trac ey Scott, the Depa

rtment’s co nservatorship worke r assig ned to Appellant’s children, also testified. She stated that Appellant was curr ently incar cer ated at a women’s prison in Gatesville and that Appellant’s children are in foster car e. Scott testified that Appellant’s y oung est child was born afte r her five older children wer e re m o v ed from her car e, so the six th child never lived with his siblings. Scott stated that the five older children wer e doing very well in foster car e, that they wer e happy , lear ning to play musical instruments, and doing well in school. The y oung est child was also doing very well with his foster family , meeting all developmenta l milestones, and had

never known Appellant as his biologica l mother. Scott stated that both sets of foster pa rents wa nt to adopt the children in their car e, and that it would be in the best interest of the children to terminate Appellant’s pa

renta l rig hts. 4

S co t t testified that the pare ntal rig hts of the fathe rs had been terminated in another 4 proce eding

. 3The jury then hear d from the g uardia n ad litem for Appellant’s children, Carla Wright, who testified that she was conce rned about Appellant’s ability to be protec tive and the ty pe of man that Appellant would choose to have around her children when Appellant g ets out of prison. Wright stated that Appellant had shown “ver y poor judgme nt” in allowing a fiftee n-year -old g irl to consume alcohol in Appellant’s home and that Appellant did not show protec tiveness by blaming the g irl for being sexually abused by Appellant’s boy friend. Wright testified that such choice s raise questions a

bout a pare nt’s ability

to be protec tive of the pa rent’s own children if the pare nt a llows

s o mething to happen to another child. Wright also testified that Appellant’s children were d o i n g “fa ntastic” and “ver

y happy” with their foster pare nts who provide them with stability , perma nency , and love, and that no family members came forwa rd to take the children. Wright noted that five of the children wer e in the same foster home and that the y oung est child is in a foster home near by to maintain sibling contac t. Both sets of foster pare nts want to adopt the children. Ultimately , Wright conclude d that the children should be fre ed for adoption, and that it was in the children’ s best interest to terminate Appe llant’s pare ntal rig hts.

After the trial, the district court signe d a d ec ree terminating Appellant’s pare ntal rig hts to her six children. This a ppeal f ollowed.

DISCUSSIO N No show ing of

incurable statem ents as to weight of wi tness’s te stim ony I n her first issue, Appellant contends that t h e district judge made “incur able”
statements commenting on the weight of a witness’s testimony

. Specifica lly , she complains that afte r “the Rule” was invoked and befor e any testimony

beg an, the judge informed the jury that the
4Rule did not apply to Dr. Shinder as an expert witness. See Tex. R. Civ. P. 267(a) –(b), Tex. R. Evid.

614(c) (providing that on party ’s reque st, trial court must order witnesses excluded from courtroom

so they cannot hear other witnesses’ testimony and provid i n g ex em p tion for cer tain witnesses, including those shown to be essential to prese ntation of case ). Appellant also complains that when 5 she later objected to a leading question asked of Dr. Shinder, the judge stated that Dr. Shinder was qualified a s an expert and c ould be led.

Appellant acknow ledg es that she failed to object at trial to either of those statements. Fur ther, the rec ord ref

lects that Appellant raised no obj ec t i o n when the judge asked befor ehand whether Dr. Shinder would be testifying. See In re E.R.C. , 496 S.W .3d 270, 2 8 2–83 (Tex. App.—Texarkana 2016, pet. denied) (conc luding that mother’s failure to object to witness at t rial

as unqualified to g ive expert testimony failed to pr eser ve err or for appea l); In re M.D.S. , 1 S.W .3d 1 90, 200 (Tex. App.—Amar illo 1999, no pet.) (noting that “fa ilure to object to a wi t n es s ’s qualifications as an expert fails to prese rve err or for appea l”); see also W i l f i n , In c. v. W

illiams , 6 1 5 S

. W

. 2 d 242, 244 (Tex. App.—Dallas 1981, writ ref ’d n.r.e.) (“[A] witness is presumed to be qualified to g ive his opinion, when the opinion is admitted without objection.”)

. I n Appellant’s view, no objection was nece ssary beca use the judge ’s statements “ar e inhere ntly prejudicia l, invade the province of the jury , and ar e ther efor e incur able.”

We note that if Appellant had objected, the judge would have had the opportunity to r ule 5 on whether Dr. Shinder was essential to the prese ntation of the Depa rtment’s case . See Tex. R. Civ. P. 267(a) –(b), Tex. R. Evid. 614(c)

. I n any event, beca use Dr. Shinder was the first witness at trial, it would have been unnecessa ry to exclude him from the courtroom af ter the Rule wa s invoked to preve nt him from hear ing the testimony of anothe r witness bef

ore he testified. 5Howeve r, the only authority that Appellant cites held that the trial judge ’s statements

wer e not incura

ble and that complaints about the t ri al j u d ge’s statements wer e not prese rved for appellate revie w. See In re Commitment of Stutev ille , 463 S.W .3d 543, 558 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) ; Capel l en v. Capellen , 888 S.W .2d 539, 547 (Tex. App.—El Paso 1994, writ denied)

. Appellant offe rs no authority for her argument that a trial judge ’s statements like the ones she complains of here —i.e., rec og nizi ng a witness as an expert exempt from the Rule befor e any testimony beg an and overr uling an objection to a leading question asked of a witness whom the
court said was qualified as an expert—are inhere ntly prejudicia l or incura ble. See Tex. R. App. P. 38. 1 (I) (r equiring briefs to contain citation to authority for arg uments); In re I.C. , No. 02-15-00300- CV, 2016 Tex. App. L EXI S 3643, at *37 (T ex . App.—For t Worth Apr. 7, 2016, no pet.) (mem. op.) (re

jecting fathe r’s complaint that trial court’s comments deprive d him of fair trial

on termination of his pare ntal rig hts wher e fathe r cited no leg al authority for his contentions). Wit hout such authority , and in the absenc e of an objection at trial, Appellant has failed to prese rve her complaint that statements made by the court constituted comments on the weig ht of the evidenc e. See Tex. R. App. P. 33.1(a) (re quiring timely reque st, objection, or motion to trial court to prese rve complaint for a

ppellate r eview) . We overrule Appellant’s f irst issue.

No show ing that trial counsel provid ed inef fective assistance I n her second i s s u e, Appellant contends that her trial counsel provided ineffe ctive assistance by not challeng ing Dr. Shinder’s qualifications and the rel iability of his opinions, not ensuring that voir dire proce eding s wer e on the rec ord, and no t making various objections and a motion to strike at trial. Proving ineffe ctive assistance of counsel require s showing : (1) commission
6of err o rs s o s er i ous that counsel was not functioning as “counse l” g uara nteed by the Six th Amendment, and (2) that counsel’s defic ient perf ormanc e prejud i ced the defe nse—i.e., “that

co u n s el ’s err ors wer e so serious as to deprive the defe ndant of a fair trial, a trial whose result i s reliable .” In re M.S. , 115 S.W .3d 534, 545 (Tex. 2003) (quoting Strickland v. W ashington , 466 U.S. 668, 687 (1984))

. We must deter mine “whe ther there is a rea sonable probability that, but for counsel’s unprof

essional er

ror( s), the re sult of the proceeding would have been differe nt.” Id. at 549–50 (c leane d up).

I n adopting the Str i ck l a n d test for pare ntal termination case s, the Texas Supreme Court noted that, taking into acc ount all of the circ umstances surrounding the case, we “must primarily focus on whether counsel perf ormed in a rea sonably eff

ective manner . . . . I n this proce ss,

we must g ive g reat defe ren ce t o co unsel’s perf ormanc e, indulging a strong presumption that counsel’s conduct falls wi t h i n t h e wide rang e of rea sonable professional assist ance , including the possibili ty that counsel’s actions are strateg ic.” Id

. at 545 (cle aned up). Challeng ed conduct

co n s t i t u t es ineffe ctive assistance only if it is “so outrag eous that no competent attorney would have en gage d i n i t

. ” In re H.R.M. , 209 S.W .3d 105, 111 (Tex. 2006) (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)); Maxwell v. Texas Dep’ t of Family & Protective Servs ., No. 03-11-00242- CV, 2012 Tex. App. L EXI S 2339, at *17 (Tex. App.—Austin Mar. 23, 2012, no pet.) (mem. op.) (fa ct that case could have been tried di ff er en t l y does not establish that counsel’s perf ormanc e was defic ient). Additionally , alleg ations of ineffe ctive assistance in a pare ntal-rig hts termination case must be firmly fo u n ded in the rec ord, and the rec ord must aff irmatively demonstrate the alleged ineffe ctiveness. W alker v. Texas Dep’ t of Family and Protective Servs .,

7312 S.W .3d 608, 622–23 (Tex. App.—Houst on [1st Dist.] 2009, pet. denied) ; see In re

K.A.D.K. , No. 04-15-00758- CV, 2016 Tex. App. L E XIS 4 0 56, at *22 (Tex. App.—San Antonio Apr. 20, 2016, pet. denied) (mem. op.). When the rec ord i s silent as to the rea sons for counsel’s conduct, a revie wing court may not spe culate to find counsel’s repr esenta tion ineffe ctive. W

alker , 312 S.W .3d at 623; In re K.A.D.K. , 2016 Tex. App. L EXI S 4056, at *22.

Review of the rec o rd d o es not aff irmatively show that Appellant’s trial counsel committed er rors so serious that he was not functioning as “counse l” g uara nteed by the Six th Amendment or that any defic ient perf ormanc e prejudice d Appellant. Although Appellant contends that her trial counsel was ineffe ctive beca use he did not challenge Dr

. S h i n d er’ s qualifications as

an ex p er t , nothing in the rec ord from trial indicates that Dr. Shinder was unqualified to gi v e the opinions that he offe red or to perf orm Appellant’s psy cholog ical evaluation. See Maxwell , 2012 Tex. App. L EXI S 2339, at *17–18 (re jecting claim that attorney provided ineffe ctive assistance in termination-of- pare ntal-rig hts trial by failing to challeng e witness’s qualifications as clinical psy cholog ist). Dr

. S h inder testified that he is licensed by the State of Texas as a clinical psy cholog ist, as a sex-offende r treatment provider, and as a marria g e and family thera pist. He also testified that he obtained a Ph.D. in psy cholog y and a Master’ s deg ree in public health, and that had been a prac ticing psy cholog ist for almost fifty y ear s. Fur ther, nothing in the rec ord indicates that if the trial court had conducte d a hear ing on reliability , the evidenc e supporting Dr. Shinder’s opinion would have be en shown to be unr eliable. See I n re J.F.C. , 96 S.W .3d 256, 284 (Tex. 2002). Appellant also co n t ends that her trial counsel was ineffe ctive beca use he did not

ensure that voir dire proce eding s wer e on the rec ord, b u t she offe rs no explanation of what err or

8would have been shown if the rec ord had been taken. See In re M. S

. , 115 S.W .3d at 545–46 6 (r ej ec ting claim that trial attorney provided ineffe ctive assistance based on his failure to obtai n

rec ord of voir dire, char g e confe renc e, and closing arguments without showing “what err ors would have be en re corde d if a re cord ha d been ma de”)

.

Appellant further contends that her trial counsel was ineffe ctive beca use he did not make a motion to strike ref ere nces to her conviction and beca use he did not make various objections during trial. She complains specific all y t hat counsel did not object to: (1) Dr. Shinder’s qualifications by raising a Daubert challeng e; (2) the court stating that Dr. Shinder was an expert and that Dr. Shinder was qualified as an expert in the prese nce of the jury ; ( 3) the c ourt exempting Dr. Shinder from the Rule; (4) the pretria l admission of Dr. Shinder’s repor t as hear say ; (5) hear say and improper predic ate when Dr. Shinder testified about statements he rea d in t h e t ra n s cript of Appellant’s criminal tr i al; and (6) Dr. Shinder’s testimony ref err ing to undisclosed repor ts about convicted sex off

ender s. She contends that Dr. Shinder’s testimony was the only evidenc e linking her ac t i o n s wi t h potential dang er to her children, and without the evidenc e he provided, the Depa rtment would have been unable to support the grounds for termination of her

pare ntal rig hts. Howeve r, not hing in the record shows the basis for counsel’s deci s i o ns not to take the complained- of actions. Be cause the rec ord is silent as to the rea sons for counsel’s conduct, we may n o t s p ec u l ate to find counsel’s perfor mance defic ient. See W

alker , 312 S.W .3d at 623 (“We may not speculate to find trial counsel ineffe ctive when the rec ord i s s ilent reg arding counsel’s

We note that an entry on the judge ’s docket sheet for the first day of trial ref lects that voir 6 dire proc eeding s were on the re cord: “ voir dire wa s conducte d (re cord ma de).” 9rea sons for his actions.”)

. Wit hout evidenc e about strategic re as o n s for trial counsel’s behavior ,

Appellant fails to overc ome the strong presumption that counsel’s conduct fell within the wide rang e of rea sonable prof

es s i o n al assistance

. See In re M.S. , 115 S.W .3d at 545; see also Strickland , 466 U.S. at 689.

Even if we wer e to assume that trial counsel’s perf ormanc e was defic i en t for the complained- of rea sons, nothing in the rec ord shows that but for counsel’s alleg edly unprofe ssional

err ors, the re s u lt of the proce eding s would have been differ ent. See In re M.S. , 115 S.W .3d at 549–50; see also Strickland , 466 U.S. at 694. The uncontroverted evidenc e at trial showed that Appellant was arr ested for sexual assault of a child and that she wa s cu rrently incar cer ated in the Texas prison sy stem. Appellant herse lf testified that she was arr ested for sexual a ssault of a child, that h er ch i l d re n wer e living with her at the time, and that her children wer e remove d from her beca use of that a

rre st. Appellant then i nvoked her Fifth Amendment privileg e not to testify when ask ed wh et h er she was char g ed with having a sex ual relationship with a girl named S., wher e her children wer e when she was in bed with her boy friend and S., and how long she was g oing to be in p ri s on. The jury was instructed that it could draw infere nces about what Appellant’s testimon y might be beca

use of her i nvocation of the Fifth Amendment privil eg e. See Baxter v. Palmigiano , 425 U.S. 308, 318 (1976) (conc luding that Fifth Amendment does not for b i d ad v erse infere nces ag ainst parties to civil actions when they ref use to testify in response to probative evidenc e offe red ag ainst them); In re V.J.G. , No. 07-12-00541- CV, 20 1 3 T ex . Ap p. L EXI S 3493, at *8 n.3 (Tex. App.—Amar illo Mar. 26, 2013, no pet.) (mem. op.) (noting , in appea l from order t er m i n at ing pare ntal rig hts, that “[i] n a civil case , the fac t finder is fre e to draw neg ative infere nces from a party ’s

10asser

tion of the privileg e ag ainst self-inc rimination”); see also In re J.D. , 436 S.W .3d 105, 118 (Tex. App.—Houston [14t h Dist.] 2014, no pet.) (“[A] fac t finder may infer that past conduct endang ering the well-be ing of a child may rec ur in the future if the child is returne d to the pare nt.”); In re D.J.W

. , 394 S.W .3d 210, 220 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (conc luding that pare ntal

co n duct occur

ring befor e and afte r child has been remove d by Depa rtment may be considere d i n deter mining whe ther ter

mination is j ustified). The jury also hea rd fr om Trac ey

Scott, the children’s c onservatorship worker , who testified that the five older children wer e doing very well in foster car e, that they wer e h appy , lear ning to play musical instruments, and doing well in school. She also testified that the y oung est child was doing very well with his foster family , meeti n g al l d evelopmental milestones, and had

never known Appellant as hi s biologica l mother. Scott noted that both sets of foster pare nts want to adopt the children in their car e, and that it would be in the best interest of the children to terminate Appellant’s pa

renta l rig hts. The children’ s g uardia

n ad litem, Carla Wright, told the jury that she was conce rned about Appellant’s ability to be protec tive of her own children, about Appellant’s poor judgme nt and irresponsible life decisions in the past, and about the ty pe of man that Appellant would choose to have around her children when Appellant g ets out of prison. Wright further testified that Appellant’s children w ere doing “ fanta stic” and “ very happy” with their foste r par ents who provide the m with stability , perma

nency , and love, and that no family members came forwa rd to take the children. Five of the child ren wer e in the same foster home and the young est child is in a foster home near by to maintain sibling contac t. Both sets of foster pare nts want to adopt the children. Ultimately , Wright

11conclude d that the children should be fre ed for adoption, and that it was in the children’ s best interest

to terminate Appe llant’s pare ntal rig hts.

Given this rec ord, we find no ineffe ctive assistanc e of c ounsel war rantingreve rsal. We overrule Appellant’s se cond issue.

CONCLUSION

We affir m the district court’s de cre e of te rmination.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices F ield and B ourland Affir med Filed: Nove mber 1, 2018

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