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Michael Conti and Rainbow Conti v. Department of Family and Protective Services
Citation: Not availableDocket: 01-10-00185-CV
Court: Court of Appeals of Texas; January 26, 2011; Texas; State Appellate Court
Original Court Document: View Document
On January 27, 2011, the Texas Court of Appeals upheld the trial court's decision to terminate the parental rights of Michael and Rainbow Conti regarding their daughter E.C. The court found that the Contis did not sufficiently challenge all the grounds for termination, and the evidence demonstrated that termination was in E.C.'s best interest. The court also ruled that the trial court did not abuse its discretion in denying the Contis' motion for a continuance or in allowing certain closing arguments, which the Contis failed to preserve adequately for appeal. The background reveals that Michael and Rainbow Conti, married in 2008, had one child together (E.C.) and each had children from previous relationships. Allegations arose against Michael regarding inappropriate sexual conduct with his stepdaughter, M.S., which included sexual advances and coercion. Despite being informed of the abuse by M.S., Rainbow did not report the incidents to authorities and allowed Michael continued access to the children. Eventually, M.S. confided in a school counselor, leading to an investigation by the Texas Department of Family and Protective Services. During the investigation, both Michael and Rainbow acknowledged the allegations but expressed a desire to resolve the issues within the family. Michael admitted to the abuse, expressing remorse and a willingness to seek help. Michael expressed suicidal thoughts to Garcia and indicated a desire to apologize to M.S. When Garcia warned him about the legal implications of his statements, Michael reacted defensively and ended the call. Subsequently, Michael took M.S. to speak with youth pastor Matthew Parker, discussing marital issues and personal problems. After a DFPS interview for Michael, M.S. disclosed abuse to Parker and a female counselor. Parker noted improvements in M.S. since leaving the Contis’ home. Following the abuse allegations, DFPS mandated the children be placed elsewhere. The Contis chose friends Lori and Bradley Warren as guardians for their children. Lori testified about Michael's frequent calls to M.S. during church trips and his inquiries into her menstrual cycle, expressing a desire to adopt E.C. and providing a stable environment. During trial, the court required the Contis to demonstrate a safe home for E.C., with Rainbow acknowledging that if Michael had abused M.S., she could not ensure safety for the children. A DFPS worker raised concerns regarding Rainbow’s disbelief in M.S.'s claims and her ability to protect E.C. Parker and Lori echoed these safety concerns. The Contis presented witnesses who testified to Michael’s normal behavior with M.S., supporting E.C.'s return to the Contis. Michael admitted to a past charge of indecency with a child and claimed M.S.'s allegations were fabricated due to conflicts over sleepovers. He denied any inappropriate attraction to M.S., attributing her claims to misunderstandings. The Contis contested the legal and factual sufficiency of the evidence supporting the trial court's grounds for termination of their parental rights under Texas Family Code section 161.001(1). The law recognizes parental rights as fundamental constitutional interests, and a termination order is irrevocable, severing all legal relationships except for the child's inheritance rights. Termination proceedings regarding parental rights must undergo strict scrutiny, with the statutes favoring the parent. Parental rights are not absolute and are granted only to those deemed fit to take on parental responsibilities. A parent may lose these rights through specific actions or failures. The primary aim of such proceedings is to ensure the child's best interests are protected. Under the Texas Family Code, termination requires clear and convincing evidence, defined as proof that instills a firm belief in the truth of the allegations. When reviewing evidence for legal sufficiency, courts must consider it in the light most favorable to the finding, assuming disputed facts were resolved in favor of the factfinder’s conclusion. Courts must disregard evidence that could be reasonably disbelieved but cannot ignore undisputed evidence that contradicts the finding. If no reasonable factfinder could reach a firm belief in the truth of the evidence, it is deemed legally insufficient. For challenges to factual sufficiency, a court reviews conflicting evidence; if significant disputed evidence undermines the finding, it is considered factually insufficient. In the case at hand, the Contis contest the trial court's determination that terminating their rights serves E.C.'s best interest. The Texas Family Code requires proof of two elements for termination: an act or omission from the specified subsections of section 161.001 and that the termination is in the child's best interest. Termination cannot rest solely on the child's best interest. Under section 161.001(1), the trial court identified three grounds for terminating the Contis’ parental rights to E.C.: (1) they knowingly endangered E.C.'s physical or emotional well-being by allowing dangerous conditions, (2) they engaged in conduct that placed E.C. with individuals who endangered her well-being, and (3) they failed to comply with a court order necessary for E.C.'s return after being in the conservatorship of DFPS for at least nine months due to abuse or neglect. The Contis did not contest the sufficiency of evidence supporting the termination under the third ground (subsection O), which allows for the judgment to be upheld without addressing their challenges under the other subsections (D and E). Regarding the child’s best interest, it is presumed that prompt and permanent placement in a safe environment serves this interest, although maintaining the parent-child relationship is also generally favored. However, parental rights, while constitutionally significant, are not absolute. The Texas Supreme Court has outlined factors to assess a child's best interest, including the child's desires, emotional and physical needs, potential dangers, parental abilities, available support programs, plans for the child, stability of placements, and any parental misconduct. These factors are not exhaustive, and evidence used for establishing grounds for termination can also inform the best interest determination. Termination of a parent-child relationship may be warranted based on a single factor demonstrating it is in a child's best interest, provided that the parent's inability to care for the child is not due solely to misfortune or lack of capability. The determination involves analyzing nine factors, including the desires of the child, E.C., who, at nine years old, expressed a desire to live with her parents through illustrations and behavior during visits. This preference suggests against termination. The Contis have met E.C.'s physical needs and established an emotional bond, although E.C. shows signs of emotional distress from separation. Concerns arise from Michael's prior abusive behavior towards E.C.'s sibling, M.S., and Rainbow's disbelief of the abuse. The home environment raises concerns about E.C.'s future emotional and physical safety, leaning towards termination of parental rights. While the record lacks direct evidence of abuse towards E.C., testimonies indicate potential future dangers, particularly given Michael's history. Witnesses who worked for the Contis could not confirm the safety of E.C. in their home, as their knowledge of the family dynamics was limited. Overall, the factors weigh against the Contis, with some suggesting emotional and physical risks to E.C. if she were to return. Witnesses did not directly observe abuse, but their distance renders their testimony inconclusive. Evidence indicates that Michael’s past abusive behavior towards M.S. suggests he poses a risk to E.C., supporting the inference that he may continue such behavior in the future. E.C.'s living arrangement with the Warrens mitigates exposure to potential emotional and physical harm from Michael. Rainbow's history as a childcare worker indicates potential parenting capability; however, her choice to remain with Michael during the DFPS investigation, despite his abusive past and a deferred adjudication for indecency with a child, demonstrates inadequate parenting. This decision led to the removal of her children from the home, further substantiating the case for terminating the Contis’ parental rights. The Contis argue that the Warrens lack financial resources, but evidence shows the State provides financial assistance for E.C.’s daycare and therapy. In contrast, the Contis' financial situation is unclear, with Michael having a stable job but Rainbow recently laid off. There is no indication of alternative support for E.C. should she remain with the Contis. Lori intends to adopt E.C., ensuring a stable home alongside E.C.'s siblings, which demonstrates a viable plan for E.C. Conversely, Rainbow’s plan to return E.C. to a home with Michael, despite abuse allegations, raises concerns. Establishing a stable home is vital, and the Contis failed to provide such an environment, allowing abuse to occur without reporting it. The Warrens have created a stable home for E.C., thus the factors collectively support the termination of the Contis’ parental rights. Michael sexually abused M.S., and Rainbow did not adequately protect M.S. from this abuse. Instead of staying with E.C., Rainbow chose to live with Michael, forcing E.C. to relocate with another family. The Contis claim M.S. apologized and recanted her allegations, but M.S. maintains her claims. Michael asserted that his comments to M.S. were misinterpreted and were meant to console her, yet several witnesses corroborate that he expressed sexual attraction towards her. Evidence suggests a pattern of past misconduct by the Contis, indicating potential future unfitness as parents. While E.C.'s desire to remain with her parents is a consideration, it does not outweigh the evidence of endangerment to her well-being. The court highlighted that love for natural parents cannot compensate for the risks of growing up in an abusive environment. Seven factors indicate termination of the Contis’ parental rights is in E.C.’s best interest, particularly given the similarity in age between E.C. and M.S. when the abuse began. Rainbow's failure to protect E.C. and the ongoing risk posed by Michael, who has a history of indecency with a child, further support this conclusion. The Warrens have offered to adopt E.C., and resources from the State would assist them. The evidence is deemed sufficient to uphold the trial court’s decision for termination of the Contis' parental rights in favor of E.C.'s safety and well-being. Parental denial of sexual abuse and lack of emotional support, including refusal to participate in counseling, justified the trial court's conclusion that terminating parental rights was in the child's best interest, as established in *In re A.B.* and *In re J.T.*. The Contis challenged the trial court's denial of their motion for continuance, arguing that their attorney, retained shortly before trial, required more time to prepare and that the continuance was necessary until a related criminal trial concluded to avoid conflicts with the Fifth Amendment rights of Michael, a party involved. The court has broad discretion to grant or deny continuances, as outlined in Texas Rule of Civil Procedure 251. Denial of such motions is only overturned in cases of clear abuse of discretion. Relevant case law indicates that a lack of written and verified motion for continuance typically implies no abuse of discretion, and mere absence of counsel does not constitute sufficient cause for a continuance. In analyzing the denial of the Contis' motion, the court considered the timeline of events, the financial ability of the Contis to retain legal counsel, their attempts to secure representation, and the performance of their trial attorney. The timeline revealed that the original petition was filed on November 19, 2008, with a trial date set for October 19, 2009. The Contis initially hired an attorney who later withdrew, and they retained a new attorney shortly before the trial. On September 23, 2009, attorney Donna LeLeux filed a motion for continuance to attend a seminar, which was granted, rescheduling the trial to January 11, 2010. On December 30, 2009, the Contis filed their own motion for continuance, claiming that self-representation would violate their due process and equal protection rights, without mentioning Michael's pending criminal trial or their financial inability to hire counsel. At a pretrial conference on January 8, 2010, the Contis represented themselves and verbally cited the criminal trial as grounds for another continuance, which was opposed by DFPS and E.C. counsel and denied by the trial court, noting that the criminal trial was unlikely to proceed as scheduled. On January 11, 2010, the Contis appeared with a newly hired attorney who had been retained after the pretrial conference. The attorney requested a continuance for preparation time and to address the pending criminal trial. The court allowed a brief extension for submitting witness and exhibit lists but denied the continuance request. At a subsequent hearing on January 12, both opposing counsels objected to the continuance, which was again denied, and the trial commenced, significantly delayed from the original petition date. The Contis argued that financial inability was the reason for their delay in hiring counsel, but they had not included this argument in their written motions or briefs. The record lacked direct evidence of their financial status, although it mentioned their residence and Michael's successful business history. Consequently, the court found no abuse of discretion in denying the continuance, given the absence of evidence supporting the Contis' claims of financial hardship. The Contis filed a verified motion for continuance on December 30, 2009, claiming diligent efforts to secure legal representation for their important case had largely failed. They consulted only one attorney prior to the pretrial conference, despite Michael having ten months and Rainbow four months to find counsel. The court concluded that the Contis did not demonstrate that their lack of representation was due to circumstances beyond their control, as evidenced by their limited outreach to attorneys. Furthermore, the Contis argued that the denial of their continuance infringed upon their right to effective assistance of counsel, referencing the Texas Family Code’s provision for appointed counsel for indigent parents. The Texas Supreme Court aligns the standard for evaluating ineffective assistance of counsel in such cases with the Strickland v. Washington test, which requires showing counsel's serious errors and the resulting prejudice to the defense. The Contis claimed that insufficient preparation time for their counsel constituted a constructive denial of their rights but failed to specify any errors or harm from counsel's performance. The record indicates that the Contis' attorney was actively engaged in their defense, conducting voir dire, striking a juror for cause, cross-examining witnesses, presenting evidence, and objecting to the opposing party’s evidence. There is no indication that the denial of the continuance hindered the Contis' ability to present their case or negatively impacted their defense. The trial had been ongoing for over a year since its filing in November 2008, with one continuance granted from October 2009 to January 11, 2010. Although the trial court denied a further motion for continuance, it allowed Contis' counsel to supplement the witness list and examine exhibits during the trial. Contis’ counsel effectively presented the case, conducted voir dire, examined witnesses, and objected to DFPS's closing statements, leading to the conclusion that Contis did not receive ineffective assistance of counsel. Regarding the second issue, Contis argued that the trial court abused its discretion by denying a continuance to allow Michael's related criminal trial to conclude first. This argument was not included in the initial pro se motion for continuance submitted on December 30, 2009, and was only verbally mentioned at a pretrial conference. The formal motion asserting the criminal trial as a reason for the continuance was filed on the trial's first day, January 11, 2010. Under Texas Family Code section 161.2011(a), a parent may request a continuance if pending criminal charges directly relate to grounds for termination, provided it serves the child's best interest. However, Contis failed to present evidence or arguments demonstrating how a continuance would benefit E.C., leading to the conclusion that the trial court did not abuse its discretion in denying the motion. In response to the fourth issue, Contis claimed improper remarks were made by DFPS counsel, suggesting Michael was convicted of child sexual abuse. The trial court has discretion over counsel's conduct during trial, and a reviewing court will only intervene if the trial court clearly abuses its discretion, which requires arbitrary or unreasonable action without guiding principles. To reverse a judgment based on improper jury argument, a complainant must demonstrate five criteria: (1) an error occurred; (2) the error was not invited or provoked; (3) it was preserved through a proper objection, motion to instruct, or motion for mistrial; (4) it was not curable through an instruction, prompt withdrawal, or reprimand; and (5) the argument constituted reversibly harmful error, with chances of harm being greater than a proper verdict. Counsel's arguments must adhere strictly to evidence and opposing counsel's arguments, allowing discussion of the reasonableness and probative effect of the evidence. Attorneys can make reasonable deductions and inferences from properly admitted evidence, and should be granted considerable leeway in their arguments. However, criticisms of opposing counsel are prohibited, as are appeals to emotion. To preserve an issue for appeal, an adverse ruling is typically required. The Contis identified four instances of alleged improper argument during trial that were related to evidence rather than attorney argument and were not preserved for review due to lack of specific objections. During closing arguments, the Contis objected to a statement regarding sexual abuse, claiming it was not evidence, but the trial court overruled the objection. E.C.'s counsel argues that the mother failed to protect her oldest daughter and questions her ability to care for her youngest daughter, emphasizing a lack of maternal duty and obligation. The counsel highlights a statement made by the mother, prioritizing her relationship with Michael over her children, which they claim demonstrates negligence. The Department of Family and Protective Services (DFPS) asserts that Rainbow Conti had the option to leave the abusive environment but chose not to, placing the safety of E.C. at risk. DFPS seeks to terminate the Contis' parental rights to prevent potential sexual abuse of E.C., referencing previous abuse of another child, M.S., by Michael Conti. Despite objections from the Contis' counsel regarding the lack of evidence for Michael's abuse of M.S., the court allows the argument based on testimonies presented during the trial. The trial court is deemed to have acted within its discretion, as the jury had sufficient evidence to conclude that Michael had sexually abused M.S. Ultimately, the court affirms the decision to terminate the Contis' rights, ensuring E.C. is protected from harm and provided a safe home. The judgment also included the termination of Rainbow's rights to M.S., though that aspect is not under appeal. The Contis were unable to afford an attorney until their trial counsel agreed to represent them pro bono on January 8, 2010. References cited by the Contis do not provide evidence of their financial situation but only confirm the timing of their counsel's engagement. The appellant raises multiple objections to trial statements and testimonies, claiming they assume facts not in evidence or are prejudicial. Specific objections include: a DFPS worker's response about potentially embarrassing a child, questioning regarding the timing of hiring a criminal attorney, and comments about the possibility of supervised visitation if parental rights are terminated. Additionally, the appellant objects to a question linking the termination of parental rights to belief in a sexual assault allegation, arguing that such a question improperly references a criminal conviction in a civil case.