### 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. 03-10-00052- CV

William Joseph Rader and Michelle Lea K lotz, Appellants

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

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NO. C-0 8-0 049- CP S, H ONO RAB LE JAY K . WEATH ERB Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an acc eler ated appea l from a decr ee termi n at ing the pare ntal rig hts of appellants Wil liam J oseph Rader and Michelle L ea Klotz. Klotz’s pare ntal rig hts wer e terminated

as to he r children R.J .D., D.D.K., J .L .R., a nd E.J .M.R. Rader’ s pare ntal rig hts were terminated as to his children, J .L .R. a

nd E.J .M.R. I n her sole issue on appea l, Klotz cha lleng es the admission of R.J .D. and E.J .M.R.’s the rapist’s notes on hear say g rounds. Rader’ s counsel has filed a motion to withdraw as counsel and a brief in su p p ort of that motion. We aff irm the trial court’s decr ee terminating Klotz’s and Rader’ s pare ntal rig hts and g rant Rade r’s c ounsel’s motion to withdraw.

BACK GR OUND Klotz is the mother of six children. T h e fo u r y o ung est children, R.J .D., D.D.K., J .L .R., and E.J .M.R., are the subjects of this termination proce ed ing. When the children wer e

remove d, R.J .D. was fiftee n y ear s old, D.D.K. was eleve n, J .L .R. was seven, and E.J .M.R. was five.Rader is the biologica l fathe r of J .L .R. and E.J .M.R. but car ed for all four children prior to their

remova l. Thoug h Klotz and R ader wer e never marrie d, they maintained a rela tionship for approximately

ten y ear s, separ ating in Dece mber 2008. The Depa rtment initia ted this case on J anuar y 24, 2008 when it rec eived a ref err al communicating conce rns that Klotz, who had rec ently been r elea sed fr om the hospital f or suicidal thoughts, was a “loose cannon,” and that her children may be in dang er. The repor t also stated that Klotz’s oldest son, J .D., ag e nineteen at the time of his siblings’ remova l, had sexually assaulted his y oung er brothers J .M., ag e six teen at the time of his siblings’ remova l, and D.D.K. in 2002 and that Klotz and Rader we re a

war e of the assaults but did not report them. 1 The Depa rtment took possession of the children on Marc h 13, 2008 and place d them in a g roup home. The Depa rtment cha

ng ed its permane ncy

g oal from re unification to termination in Dec ember 2008, citing Rader’ s and Klotz’s insuffi cient prog ress following the remova l of the children. A bench trial was held conce rning the termination of Klotz’s pare ntal rig hts as to R.J .D., D.D.K., J.L .R., and E.J .M.R. and Rader’ s pare ntal rig hts as to J .L .R. and E.J .M.R.

At trial Rader testified that in 2002, R.J .D. notified him that she had seen J .D. eng ag e in sexually inappropria te acts with J .M. and D.D.K. in the family home. Upon Rader’ s inquiry , J .M. and D.D.K. admitted that J

. D. h ad abused them. Rader testified that he tol d Klotz of t he incident and that Klotz chastised J .D., but instruc ted Rader and the children not to tell a ny one. Rader also

2

J .D. was not a minor at the inception of this case , and J .M. had a separ ate history with the 1 Depa rtment. Ba rbar a Cockere ll, the Depa

rtment investiga tor, and Ba rbar a Hec ht, R.J .D. and E.J .M.R.’s 2 thera pist, also testified that the children told them about this incident. 2testified that R.J .D. made an outcry to the Depa rtment that, on a separ ate occa sion, J.D. f orce d her to smoke methamphetamine a nd then sexually

abused he r. Klotz testified that she did not believe R.J .D.’s outcry and that she believes her children were “brainwa shed” and lied about m any of t he events broug ht up at trial.

Rader further testified that shortly befor e the Depa rtment ref err al, Klotz asked Rader
to put all of the children in her car so that she co u l d t ak e t h em out to a “last supper” befor e she committed suicide. Klotz admit ted that she wa nted to take he r childre n out to dinner and pla nned

on driving her car into a tree afte rwa rd, but testified that she did not intend to harm the children. Following this incident, Klotz enter e d a hospital for trea tment. Upon rele ase from the hospital, Klotz

announce d that she intended to bring the children with h er t o C rane , Texas to live with her new boy friend, who had been a fellow patient at t h e h o s p i t al. Klotz admitted at trial that she did not beg in consistently taking her medications for bipolar disorder until Dec ember 200 8

. She testified that prior to D ece mber 2008, she would stop ta king her medication when she felt she was “doing better.” According to Rader, Klotz was also phy sically abusive. Rader testified that Kl o t z

re p eate dly attempted to run hi m over with her car. On one occasion, R ader claimed that Kl o t z h i t him in the leg with her car while the children wer e watching

. Rader further tes t i fi ed t h at Klotz intentionally drove rec klessly while the children wer e in the car in or der to sc are them and that her behavior made J .L .R. so afr aid that he vomited. Rader contende d that Klotz hit him sever al times 3

Hec ht also testified that R.J .D. told her a bout this i ncident. 3 3over their ten-y ear rela tionship, at times when the children wer e prese nt. He stated that he lived in the g ara g e or storm c ellar of their house in orde r to avoid Klotz. The children wer e also witnesses to an alterc ation, acc ording to Rader, in which Rader pulled K lotz off of J .M. by her ha ir bec ause she had beaten and choked J.M. until he beg an spitti ng up blood. Rader stated that he called the police, but that Klotz ran awa y befor e they arr ived. 4 Finally , Rader testified that Klotz, over his objection, invited her fathe r Billy Mason, a reg istered sex off

en d er, to live with Klotz, Rader, and t he children. Mason became a reg istered

sex offe nder afte r being convicted of repe atedly sexually abusing Klotz when she was a teena g er and y oung adult. Mason lived with the family for approximately six month s . Rader testified that he

never left the c hildren alone with Mason. Rader and Klotz also testified reg arding their violations of the Depa rtment’s family service plan. Klotz admitted that, though the family service plan order ed her to pay $260 per month i n ch i l d s u p p o rt beg inning May 1, 2008, she made no pay ments. She also admitted that she was

arr ested for hara ssment of an ex-boy friend in vio l at i o n o f t he plan. Rader admitted to using methamphetamine on Dec ember 31, 2007 and failing a subsequent drug test, but testified that he had
not used illega l drug s since. Rader also admitted to being arr ested in 2008 for placing a nonemer g ency

911 call. At the time of trial, R.J .D. and E.J .M.R. lived toge ther in a children’ s home and D.D.K. and J .L .R. eac h lived in separ ate foster fac iliti es. Acc ording to Hec ht, R.J .D. and E.J .M.R.’s

Hec ht testified that R.J .D. and E.J.M.R. bot h claimed they witnessed this event. 4 4thera

pist, and Connie Gauwa in, the children’ s court-a ppointed advocate, R.J .D., D.D.K., and E.J .M.R. all communicated that they would like their par ents’ rig hts to be terminated. After hear ing the evidenc e, the trial court fo u n d that Klotz and Rader eac h (1) knowing ly place d or knowing ly allowed the children to rema in in conditions that endang ere d the phy sical and emotional well-be ing of the children, (2) eng ag ed in conduct or knowing ly place d the children with persons who eng ag ed in conduct that endang ere d the phy sical or emotional well-be ing of the children, and (3) failed to comply with the provisions of a court order establishing the actions

nece ssary for the return of the children, who had been in the custody of the Depa rtment for over nine months. See Tex. Fam. Code Ann. § 161.001(1 )( D) , (E ), (O ) (West Supp. 2010). The trial court further found that termination of the pare nt-child rela tionships betwe en Klotz and R.J .D., D.D.K., J .L .R., and E.J .M.R. and betwee n Rader and J

. L

. R

. and E.J .M.R. was in the best interest of the children. See id. § 161.001(2). I t subsequently issued a decr ee terminating Klotz’s and Rader’ s pare ntal rig hts. Klotz and Rade r now a ppeal.

DISCUSSIO N

W illiam Joseph Rader

Rader’ s court-a

ppointed attorney

filed a motion to withdraw a nd an ac company

ing brief concluding that Rader’s ap p ea l is frivolous and without merit. The brief meets the require ments of Anders v. Calif ornia , 386 U.S. 738 (1967), by prese nting a profe ssional evalua tion of the re co rd d emonstrating why there are no arg uable g rounds to be advanc ed. See also Taylor

v. Texas Dep’ t of Protective & Regulatory Serv s . , 1 6 0 S.W .3d 641, 646-47 (Tex. App.—Austin

52005, pet. denied) (apply ing Anders p ro cedure in appea l from termination of pare ntal rig hts).

Counsel has cer

tified that she has provided Rader with a copy of t h e A n der s b ri ef, along with a notice advising Rader of his rig ht to examine the appellate rec ord and to file a pro se brief. No pro se brief has bee n filed. We have car efully revie wed the appellate r ecor d and counse l’s brief a nd ag ree that the appea l is frivolous and without merit. We find nothing in the rec ord that might arg uably support the appeal

. S

ee Bledsoe v. State , 178 S.W .3d 824, 826-27 (Tex. Crim. App. 2005). Counsel’s motion to wit hdrawis gr anted.

Miche lle Klotz I n her sole issue on appea l, Klotz challeng es the admission of the thera py notes and

rec ords from Hec ht, R.J .D. and E.J .M.R.’s thera pist, beca use they contain hear say statements made by the childre n during thera py . 5 Hea rsay evidenc e is inadmissible unless it falls within an exception provided by a statute or the r

ules of evidenc e. See Tex. R. Evid. 802. Under one exception, a he arsa

y statement made “for purposes of medical diag nosis or trea tment” may be admissible, T ex . R. Evid. 803(4), provided that (1) the decla rant knew that the statement was made for the purpose o f rec eiving
trea tment and (2) the substance of the statement wa s p er t i nent to trea tment. See Taylor v. State , 268 S.W .3d 571, 589, 591 (Tex. Crim. App. 2008); see also Calderon v. Texas De p’t of Family &

We note that Rad er d o es not appea l the admission of these thera py notes, presumably 5 beca use the s t at ements contained there in are rela tively positive as to Rader. During his closing arg ument, Rader’ s attorney pointed out a number of instances within Hec ht’s notes wher e R.J .D. and E.J .M.R. made fa vorable comments about Rader

. 6Protective Servs. , No. 03-09-00257- CV, 2010 Tex. A p p . L E X I S 4 4 0 8 , a

t * 2 1

- 2 2 ( T e x. A

p p . —Austin J une 22, 2010, no pet.) (mem. op.) (apply ing this two-step analy sis to admissibili ty of thera py notes in termination proce eding ). 6

We need not deter

min e the ex tent to which Hecht’s notes comply with rule 803(4)

or any other hear say exception, howeve r, b ecause even assuming the thera py rec ords wer e inadmissible hear say , any err or i n their admiss ion was harmless. To be entitl ed to re versa l due to the err oneous admission of evidenc e, an appellant must show that the err or probably resulted in an improper judgme nt. See Tex. R. App. P

. 44.1(a) ; State v. Central Expressway Sign Assocs. , 302 S.W .3d 866, 870 (Tex. 2009). I n making this determination, the cour t must review the e ntire

rec ord. Central Expressway , 302 S.W .3d at 870. The admission of the chal leng ed evidenc e is harmless if the evidenc e was cumulative or if the rest of the evidenc e was so one-sided that the err or likely made no differ ence in the judgm en t

. Id

. ; s ee also In re K.R. , 63 S.W .3d 796, 800-01 (Te x . 2001) (re cog nizi ng that err or in evidentiar y ruling during termination case is subject to “har mless error ” test).

Klotz arg ues that Hec ht’s notes “conta ined a larg e quantity of evidenc e rela tive to the court’s best interest deter

mination” and that, had the notes not been admitted, insufficient evidenc e would support the trial court’s finding that termin at i o n o f Klotz’s pare ntal rig hts was in the children’ s best interest. We disag ree . First, much of the evidenc e contained in Hec ht’s thera py notes

Thoug h the Depa

rtment alterna tively arg ued at trial that the thera py notes wer e admissible 6 to prove the children’ s state of mind, the trial court specific ally explained, “I ’m not overr uling them on the g rounds that the statements

. . . exhibi t the state of mind of these children.” I nstead, he based his ruling on the fac t that the rec ords wer e “stateme nts made to a medical provider for the purposes of [proper tre atment].” 7was cumulative of the testimony alre ady g iven by Rader, Cockere ll, and Hec ht prior to the admission

of the notes. See Nissan Motor Co. v. Armstrong , 145 S.W .3d 131, 144 (Tex. 2004) (“[E]rroneous

7 admission [of evidenc e] is harmless if it is mere ly cumulative.”) ; Mauzey v. Sutliff , 125 S.W .3d 71, 80 (Tex. App.—Austin 2003, pet. denied) (dete rmining that cumulative nature of testimony rende rs

err or harmless); see also Volkswagen of Am., Inc. v. Ramirez , 15 9 S.W .3d 897, 907 (Tex. 2004) (expressing g ener al rule that err or i n admission of ev i d en ce is harmless if objecting party permits

same or simil ar evidenc e to be introduced without objection). Second, even without Hec ht’s notes, ample evide nce e x ists to s upport the trial cour t’s best-intere st finding. The best interest of the children is assessed using a non-exhaust i ve list of fac tors. Ho l l ey v. Adams , 544 S.W .2d 367, 371-72 (Tex. 1976). These fac tors include (1) the children ’s wishes, (2) their emotional and phy sical needs now and in the future, (3) emotional or phy sical dang er to the children now and in the future, (4) the pare nting abilities of the parties seeking custody , (5) prog rams available to help those parties, (6) plans for the children by the parties seeking custody , (7) the stability of the proposed place ment, (8) the pare nt’s conduct indicating that the pare nt-child rela tionship is improper, and (9) any excuses for the pare nt’s conduct. Id

. at 372. A party seeking involuntary termination of pare ntal ri g hts need not prove all nine Holley fac tors as a “condition prec edent” to t er m i n ati on. In re C.H. , 89 S.W .3d 17, 27 (Tex. 2002). Whil e no one fac tor is controlling , analy sis of a single fac tor may be adequate in a particula r fac tual situation to support a

Hec ht’s thera

py notes primarily contained R.J .D.’s and E.J .M.R.’s acc ounts of the various 7 family incidents descr ibed ab o v e an d their desires that pare ntal rig hts be terminated so that they could be adopted. We note that though Klotz challeng es the admission of Hec ht’s thera py notes on appea l, sh e d o es not appea l the admission of any statements contained in Hec ht’s or any other witness’s testimony

. 8finding that termination is in the best interest of the children. In re J.O.C. , 47 S.W .3d 108, 115 (Tex.

App.—Waco 2001, no pet.). The same evidenc e of acts or omissions used to establish g rounds for termination may be probative in de termining the best interests of the child. C.H ., 89 S.W .3d at 28. Cockere ll testified that all four children fea red their mother. Hec ht’s and Gauwa in’s testimony also established that R.J .D., D.D.K., and E.J .M.R. did not want to return t o Kl o t z an d expressed a desire that her pare ntal rig hts be terminated. Gauwa in testified that R.J .D. and E.J .M.R.

wer e doing “g rea t” in their place ments, that D.D.K. was doing “we ll,” that J .L .R. was doing “fa irly well,” and that all four children had shown prog ress since coming into the Depa rtment’s ca re . Cockere ll stated that Rader and Klotz eac h told her that the children would be better off in foster car e than in the custody

of the other

pare nt. Fur ther, a fac t finder may measure a pare nt’s future conduct by her past conduct and deter mine that it is in a child’s best interest to terminate her pare ntal rig hts. See Castorena v. Texas De p ’ t o f Protective & Regulatory Servs. , No. 03-02-00653- CV, 2004 Tex. App. L EXI S 3753, at *31- 32 (Tex

. App.—Austin Apr. 29, 2004, no pet.) (mem. op.) (citing Davis v. Travis County Child W elfare Unit , 564 S.W .2d 415, 421 (Tex. Civ. App.—Austin 1978, no writ)); see also Ray v. Burns , 832 S.W .2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often prolog ue.”)

. Fur ther, a fac t finder ma y infer that past conduct endang ering the well-being of a child may rec ur i n the future if the child is returne d to the parent. In re M .R.J.M. , 280 S.W .3d 494, 502 (Tex. App.—For t Worth 2009, no pet.). Evid ence of Klotz’s past conduct, proved throug h the testimony of Rader, Klotz, Cockere ll, Hec ht, and J oe Be n t l ey , a Depa rtment case worke r, supports the infere nce that Klotz

9would be unable to meet her children’ s phy sical and emotional need s o r p rovi de a stable home

environment wer e the children returne d to her car e. Klotz’s troub l es o m e p ast conduct includes: (1) making suicidal threa ts in front of her children, (2) alleg edly phy sically abusing Rader by attempting to run him over with her car , (3) choking J .M. until he spit up blood, (4) failing to repor t J .M.’s and D.D.K.’ s alleg ations of abuse by J .D., (5) instructing Rader and her children not to repor t the abuse by J .D., (6) allowing her fathe r, a reg istered sex offe nder who had previously abused her,
to live i n t h e h ome with the children, (7) failing to reg ularly take her bipolar medication, (8) purposely driving rec klessly to scar e the children, (9) failing to provide child support pay ments to the children, and (10) believing that the childre n wer e “br ainwashe d” and ly ing a bout their past
traumas. Ex cluding Hech t ’s t hera py notes and considering only the remaining evidence , we hold that the trial court could have rea sonably conclude d that terminating Klotz’s pare ntal rig hts was in the best interest o f t he children. See, e.g. , Liu v. Texas Dep’ t of Family & Protective Servs. , 273 S.W .3d 785, 799 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (af firming termination wher e pare nt failed to take medication fo r m ental illness); In re L.C. , 145 S.W .3d 790, 799-800 (Tex

. App.—Texarkana 2004, no pet.) (af firming termination of mother’s pare ntal rig hts to five children wher e mother disbelieved one child’s repor t of sexual abuse by family member and failed
to provide emotional support for abused chi l d ); see also Middleton v. Texas Dep’ t of Protective & Regulatory Servs. , No. 03-03-00766- CV, 2005 Tex. App. L EXI S 35 8 6 , at *42-43 (Tex. App.—Austin May 12, 2005, pet. denied) (mem. op.) (af firming termination when pare nt phy sically abused children in front of their siblings). There fore , the admission of Hec ht’s thera py notes likely

10made no differ ence in the judgme nt. See Central Expressway , 302 S.W .3d at 870. We overr ule Klotz’s sol e issue on appe al.

CONCLUSION

Be cause we have overr

uled Klotz’s issu e on appea l and deter mined that Rader’ s appea l is frivolous and without merit, we g rant Rader’ s appellate counsel’s motion to withdraw and aff irm the trial court’s order terminating the pare nt-child rela tionsh i p s betwee n Klotz and R.J .D., D.D.K., J.L .R., and E.J .M.R. and betwee n Rader a nd J .L .R. and E.J .M.R.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Affir med Filed: June 15, 2011

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