in the Interest of D.S.O., a Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00061-CV
IN THE INTEREST OF D.S.O.
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-PA-01423
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 18, 2014
AFFIRMED
Roxanne S. appeals the trial court’s order terminating her parental rights to her daughter
D.S.O. On appeal, Roxanne S. argues the evidence is legally and factually insufficient to support
the trial court’s finding that termination of the parent-child relationship was in her daughter’s best
interest. We affirm.
BACKGROUND
Roxanne S.’s daughter, D.S.O., came into the care of the Texas Department of Family and
Protective Services in June 2012 when she was found on the floorboard of a pick-up truck used as
the get-away vehicle in a convenience store robbery. D.S.O. was eleven months old at the time.
Methamphetamines were also found in the pick-up truck. At the time she was taken into the
Department’s custody, D.S.O. was suffering from an infection in her mouth and had hearing
04-14-00061-CV
problems. She was also mentally and physically delayed for her age. D.S.O. was placed with foster
parents, who at the time of the termination hearing were seeking adoption. D.S.O. was two years
old at the time of the termination hearing.
D.S.O.’s mother, Roxanne S., testified that D.S.O. was about seven or eight months old
when Roxanne S. was arrested and jailed. Roxanne S. had been a passenger riding in a SUV that
was pulled over for a traffic violation. Because Roxanne S. had an outstanding warrant for
assaulting her girlfriend Melissa, she was arrested at the scene. Roxanne S. left D.S.O., who had
also been a passenger of the SUV, in the care of her friend Esperanza. According to Roxanne S.,
while she was in jail, she attempted to get in touch with her mother and her sister so that they could
care for D.S.O., but was unable to reach them.
When D.S.O. was found on the floorboard of the get-away car, she was in the care of
Melissa. Roxanne S. testified that she did not know Melissa had been taking care of D.S.O.
Roxanne S. had left D.S.O. in Esperanza’s care, and then Esperanza had given D.S.O. to her “other
friend Veronica.” Roxanne S. testified, “I think [D.S.O.] was handed off like four times.” “I think
she went through like four people.” “I found out that Melissa was staying with Veronica, and I
didn’t know because she was my friend, and I was like, ‘Why is she staying there?’ and she said,
‘Oh, I let her stay here so she could take care of [D.S.O.].’”
Roxanne S. admitted that she had had multiple convictions for theft and assault bodily
injury, which she attributed to having been a drug addict. In all, she had been convicted for seven
thefts, five of which were felonies. She testified that she would steal to support her habit. At the
time of the hearing, she was on deferred adjudication community supervision, and she had been
working in the warehouse of Sterling Foods where she earned minimum wage. She also testified
that she worked as a tattoo artist. She admitted that her Facebook page advertised for her tattoo
services, which she performed in her home. Because she was unlicensed, she stated that she was
-2-
04-14-00061-CV
no longer performing tattoo services out of her home and was apprenticing with a licensed tattoo
artist. She claimed that her Facebook page still advertised for services out of her home because
she had forgotten her login password. Also on her Facebook page were photos of persons,
including children, making gang hand symbols.
Roxanne S. admitted that she had a prior case involving the Department. Two of her other
children had been taken out of her care because of her cocaine and heroin use. She testified that
she stopped using illegal drugs when she found out she was pregnant with D.S.O., which was when
she was six weeks along in her pregnancy. According to Roxanne S., she began using illegal drugs
when she was eighteen and had used them on and off for the past seventeen years. She also
admitted that her ex-husband had been a member of a gang. According to Roxanne S., five years
ago, when she was with her ex-husband, she was affiliated with that gang and still had two gang
tattoos. She testified that the tattoos were large, and she wanted to cover them but could not yet
afford to do so.
Roxanne S. recognized D.S.O. has some hearing problems, which resulted in D.S.O.
having an operation. Roxanne S. testified that D.S.O. had gotten her immunizations at the hospital
when she was born but had not received any after that time. And, Roxanne S. admitted that D.S.O.
had been overweight while in her care. Roxanne S. stated, “I started to cut down on her food a
little bit, but like not too much because I didn’t want her to like be screaming that she was hungry.
Like I didn’t want to do it like all fast, so I tried to cut down little by little.” According to Roxanne
S., D.S.O.’s mouth had become infected while D.S.O. was in Melissa’s care. D.S.O. had fallen out
of the bath tub, bruising her mouth and busting open her lip. D.S.O.’s mouth was then not properly
treated, which resulted in it becoming infected.
During her testimony, Roxanne S. verified that Jessica, her former girlfriend, was sitting
in the courtroom. Roxanne S. acknowledged Jessica accompanied her during her visitations with
-3-
04-14-00061-CV
D.S.O. Roxanne S. claimed she was not currently in a relationship with Jessica, but confirmed that
Jessica had had two cases with the Department involving allegations of sexual abuse of a child.
Roxanne S. stated that those allegations had been “ruled out.” According to Roxanne S., “[w]hen
she’s with me, there wouldn’t be anything wrong with” Jessica being around D.S.O. Roxanne S.
stated, “There’s a lot of people out there that I need to watch over my baby.”
Sharon Watkins, a case worker assistant with the Department, testified that she monitored
visits between Roxanne S. and D.S.O. Watkins testified that Roxanne S. had bonded with D.S.O.
She noted that Roxanne S. brought her girlfriend Jessica to the visits. Watkins complained that
although Roxanne S. was supposed to look after D.S.O.’s hygiene during visits, she would not
change D.S.O.’s diapers.
Francine Steely, director of the Apple Tree Day School where D.S.O. attends, testified
about the strong bond between the foster mom and D.S.O. Steely noted that when D.S.O. would
return from visits with Roxanne S., she would be “much more aggressive, not happy for a time
until she got readjusted back in the classroom.”
Serika Cuellar, an Early Intervention Specialist with Easter Seals, testified that she worked
with D.S.O. four times a month for a year. According to Cuellar, D.S.O. came into the program
because she was developmentally delayed. Cuellar noted that the foster parents were receptive to
her suggestions and recommendations for D.S.O. The foster parents made the recommended
changes and were in constant communication with Cuellar. Cuellar testified that D.S.O. flourished
in the care of the foster parents. She went from a developmentally-delayed child to one meeting
all developmental goals. At the urging of the foster mom, Cuellar also met with Roxanne S.
However, according to Cuellar, Roxanne S. was not receptive to Cuellar’s recommendations
regarding D.S.O.
-4-
04-14-00061-CV
Alicia Isabelle, who is employed with the Children’s Shelter, is a foster care case manager.
She testified that D.S.O. had bonded with her foster parents and was a happy child. According to
Isabelle, the foster parents had gone above and beyond to meet D.S.O.’s therapeutic needs.
Jennifer Iruegas, a caseworker with the Department, testified that when D.S.O. came into
the Department’s care, “there were lesions and sores in and around her mouth.” “There were
bruises throughout her body.” D.S.O. was given medication to treat the bacterial infection around
her mouth. Iruegas was assigned to D.S.O.’s case in late September 2012. At that time, Roxanne
S. was no longer in jail. Iruegas testified that she was concerned because although Roxanne S. had
left D.S.O. in the care of a friend, she had no real understanding as to why D.S.O. had lesions on
and around her mouth. Roxanne S. gave Iruegas “different stories” of how D.S.O. was injured.
Roxanne S. did tell her that D.S.O.’s mouth had become infected because she did not receive
proper medical attention. According to Iruegas, the Department took D.S.O. into its care not only
because she was found in the get-away car of a robbery but also because she had physical injuries.
Iruegas testified that when she asked Roxanne S. why D.S.O. had not been in the care of family
members, Roxanne S. said she could not reach any family members.
Iruegas also testified that Roxanne S. had not shown stable employment, because she had
frequently changed jobs. Iruegas also had not had an opportunity to see Roxanne S.’s home.
Iruegas noted that D.S.O. required some therapeutic services and “from that experience, the
Department feels that [Roxanne S.] is not willing, ready, or able to continue or even participate in
those services that are required of her child.” Iruegas testified about the meeting with Cuellar from
ECI services: “[I]t was very visible that mom was getting frustrated and mid-meeting asked to
speak with me after the visit. After the visit was completed, she informed me that [the visits were]
her time and that she no longer wanted Ms. Cuellar to attend the visits.” Iruegas emphasized to
Roxanne S. “the importance of redirection and the behaviors that [D.S.O.] was having because of
-5-
04-14-00061-CV
the constant change of environment from unstructured to very structured upon returning to day
care.” However, according to Iruegas, Roxanne S. was adamant that she “did not wish to share her
time with the therapist.” Iruegas also observed that during the visits, Roxanne S. was not meeting
the hygiene needs of D.S.O.
Iruegas explained that although Roxanne S. completed many services, there were still
several areas that the Department believed posed a safety risk to D.S.O. According to Iruegas, she
was concerned about Roxanne S.’s “neglectful supervision and the fact that – the reason the child
came into care along with mom’s absence and her being on parole and the probability and
possibility of her ending up in the same situation.” Iruegas was also concerned about “[t]he way
the child came into care.” She had been left in the care of someone who had committed a robbery
with her in the get-away car. She “was overweight.” She was developmentally delayed. She had
speech and hearing issues. Iruegas was also concerned about the environment D.S.O. would return
to and the people to whom she would be exposed. Iruegas listed other concerns: Roxanne S.’s
“continued tattooing from the home, continuing to be advertised on Facebook; the repeated visits
from the San Antonio Police Department to the home regarding Roxanne’s granddaughter and her
daughter; and the situation with Child Protective Services, several allegations of sexual abuse, and
the very present ex-paramour and her history with CPS.” According to Iruegas, Roxanne S. had
“informed me of times where they had to call the police because of her granddaughter’s father
arriving at the home or looking for the granddaughter.” Iruegas also pointed to allegations of sexual
abuse against Jessica regarding Roxanne S.’s young granddaughter. Iruegas noted that Jessica had
“been present at every hearing and mediation” and was present at the termination hearing. Iruegas
further noted that Jessica had been invited by the mom to attend visits with D.S.O. Iruegas
emphasized that there were three referrals against Jessica and Roxanne S. had been warned
-6-
04-14-00061-CV
“repeatedly” about the potential danger Jessica poses to D.S.O. She nevertheless continued to bring
Jessica around D.S.O.
Iruegas also pointed to Roxanne S.’s Facebook page: “continued advertisement of tattoos
in the home, very explicit pictures, drug paraphernalia, inappropriate language, gang signs,
children throwing gang signs.” Iruegas felt Roxanne S. was lacking the ability to pick appropriate
people to have around her child. Iruegas pointed to Roxanne S.’s former girlfriend Melissa who
had committed the robbery that led to the Department’s removal of D.S.O. Iruegas testified that it
was in D.S.O.’s best interest to remain with her foster parents. Iruegas emphasized D.S.O.’s
“progression throughout the case, her developmental progression, the seriousness that [the foster
parents] take her medical and physical needs, their continued engagement with therapists and
[Iruegas].” Iruegas testified that the foster parents meet all of D.S.O.’s needs.
Leslie Vanaman, a licensed professional counselor, testified that Roxanne S. successfully
completed ten sessions. And, there was testimony from the foster mother’s sister that the foster
parents would make appropriate and loving parents for D.S.O., and were able to provide a stable
environment.
After hearing all the evidence, the trial court terminated Roxanne S.’s parental rights,
finding that she had (1) knowingly placed or knowingly allowed D.S.O. to remain in conditions or
surroundings that endangered her physical or emotional well-being, pursuant to section
161.001(1)(D) of the Texas Family Code; (2) engaged in conduct or knowingly placed D.S.O. with
persons who engaged in conduct that endangered her physical or emotional well-being, pursuant
to section 161.001(1)(E); and (3) constructively abandoned D.S.O, who had been in the permanent
or temporary managing conservatorship of the Department or an authorized agency for not less
than six months and (i) the Department or authorized agency had made reasonable efforts to return
D.S.O. to Roxanne S., (ii) Roxanne S. had not regularly visited or maintained significant contact
-7-
04-14-00061-CV
with D.S.O., and (iii) Roxanne S. had demonstrated an inability to provide D.S.O. with a safe
environment, pursuant to section 161.001(1)(N). The trial court also found that termination of the
parent-child relationship between Roxanne S. and D.S.O. was in D.S.O.’s best interest. Roxanne
S. appealed. On appeal, she challenges only the best-interest finding.
TERMINATION OF PARENTAL RIGHTS
Parental rights may be terminated only upon proof of clear and convincing evidence that
(1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code,
and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West
2014). Here, Roxanne S. challenges the best-interest finding, arguing the evidence is legally and
factually insufficient.
When the legal sufficiency of the evidence is challenged, we look at all the evidence in the
light most favorable to the trial court’s finding to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009). “To give appropriate deference to the factfinder’s conclusions and the role of a
court conducting a legal sufficiency review, looking at the evidence in the light most favorable to
the judgment means that a reviewing court must assume that the factfinder resolved disputed facts
in favor of its finding if a reasonable factfinder could do so.” Id. (citation omitted). “A corollary
to this requirement is that a court should disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible.” Id. (citation omitted). “If, after conducting its
legal sufficiency review of the record evidence, a court determines that no reasonable factfinder
could form a firm belief or conviction that the matter that must be proven is true, then that court
must conclude that the evidence is legally insufficient.” Id. at 344-45 (citation omitted).
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all
the evidence, including disputed or conflicting evidence. Id. at 345. “If, in light of the entire record,
-8-
04-14-00061-CV
the disputed evidence that a reasonable factfinder could not have credited in favor of the finding
is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” Id. (citation omitted); see also In re A.B., No. 13-0749, 2014
WL 1998440, at *3 (Tex. May 16, 2014). In reviewing termination findings for factual sufficiency,
we give due deference to the factfinder’s findings and do not supplant its judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); see In re A.B., 2014 WL 1998440, at *3
(explaining that while there is a heightened standard of review in parental termination cases, a
“court of appeals must nevertheless still provide due deference to the decisions of the factfinder,
who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when
assessing the credibility and demeanor of witnesses”).
On appeal, Roxanne S. argues that the evidence is legally and factually insufficient to
support a best-interest finding because the “child would benefit from having continued contact and
visitation with her mother.” According to Roxanne S., “[g]iven the facts, a better solution is to
simply restrict [Roxanne S.]’s parental rights for the near future.” Roxanne S. stresses that she
completed her service plan and received the recommendation from a licensed professional
counselor. Thus, she argues that the evidence is legally and factually insufficient to show
termination of her parental rights is in D.S.O.’s best interest, and asks that we reverse the trial
court’s order, name her possessory conservator of the child, and remand this case back to the trial
court for further orders regarding visitation and child support.
When the court considers factors related to the best interest of the child, “the prompt and
permanent placement of the child in a safe environment is presumed to be in the child’s best
interest.” TEX. FAM. CODE ANN. § 263.307(a) (West 2014). And, in determining whether the
child’s parents are willing and able to provide the child with a safe environment, the court should
consider the following:
-9-
04-14-00061-CV
• the child’s age and physical and mental vulnerabilities;
• the frequency and nature of out-of-home placements;
• the magnitude, frequency, and circumstances of the harm to the child;
• whether the child has been the victim of repeated harm after the initial report and
intervention by the Department or other agency;
• whether the child is fearful of living or returning to the child’s home;
• the results of psychiatric, psychological, or developmental evaluations of the child, the
child’s parents, other family members, or others who have access to the child’s home;
• whether there is a history of abusive or assaultive conduct by the child’s family or others
who have access to the child’s home;
• whether there is a history of substance abuse by the child’s family or others who have
access to the child’s home;
• whether the perpetrator of the harm to the child is identified;
• the willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s close
supervision;
• the willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time;
• whether the child’s family demonstrates adequate parenting skills, including providing the
child and other children under the family’s care with (1) minimally adequate health and
nutritional care; (2) care, nurturance, and appropriate discipline consistent with the child’s
physical and psychological development; (3) guidance and supervision consistent with the
child’s safety; (4) a safe physical home environment; (5) protection from repeated exposure
to violence even though the violence may not be directed at the child; and (6) an
understanding of the child’s needs and capabilities; and
• whether an adequate social support system consisting of an extended family and friends is
available to the child.
Id. § 263.307(b).
In addition, courts may consider other nonexclusive factors in reviewing the sufficiency of
the evidence to support the best-interest finding, including (1) the desires of the child, (2) the
- 10 -
04-14-00061-CV
present and future physical and emotional needs of the child, (3) the present and future emotional
and physical danger to the child, (4) the parental abilities of the persons seeking custody, (5) the
programs available to assist those persons seeking custody in promoting the best interest of the
child, (6) the plans for the child by the individuals or agency seeking custody, (7) the stability of
the home or proposed placement, (8) acts or omissions of the parent which may indicate the
existing parent-child relationship is not appropriate, and (9) any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not exhaustive, and
evidence is not required on all of the factors to support a finding terminating a parent’s rights. Id.;
In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
In considering the above factors, we note that D.S.O. was two years-old at the time of the
termination hearing and had been removed at eleven months of age. She had thus been living with
her foster parents for the majority of her life. There was evidence that D.S.O. had bonded with her
foster parents and with Roxanne S. However, while D.S.O. “flourished” with her foster parents,
there was evidence that Roxanne S. was unable to meet D.S.O.’s needs. When D.S.O. came into
the Department’s care, she was developmentally behind, had behavioral and communication
problems, hearing problems, and was overweight. For over a year, the foster parents and Cuellar
worked with D.S.O., resulting in D.S.O. meeting all developmental goals. There was evidence that
Roxanne S. was reluctant and uninterested in continuing therapeutic services. There was also
evidence that Roxanne S. repeatedly did not meet D.S.O.’s hygienic needs during monitored visits.
Nor did Roxanne S. show stable employment or the ability to give D.S.O. a stable home
environment. Although Roxanne S. admitted she needed much help to care for D.S.O., she was
not able to show a stable support system. Instead, despite warnings from the Department’s
caseworker to disassociate herself from Jessica, Roxanne S. continued to bring Jessica to court
hearings and monitored visits. Additionally, Roxanne S.’s Facebook page continued to post
- 11 -
04-14-00061-CV
advertisements about the unlicensed tattoo service she performed in her home. Her Facebook page
contained pictures of people, including children, making gang symbols. While Roxanne S. claimed
she was no longer affiliated with a gang, she still had tattoos of that gang’s symbols. And, Roxanne
S. had a long history of drug addiction and testified she only stopped using drugs when she
discovered she was pregnant with D.S.O. She testified she had had two other children removed
from her home by the Department due to her drug use. She also had a criminal history and was
presently on probation. This evidence is legally sufficient to support the trial court’s finding that
termination of the parent-child relationship is in D.S.O.’s best interest.
During her testimony, Roxanne S. claimed that she did not know her Facebook login and
that those postings were old postings. She testified she no longer ran the tattoo business out of her
home and that she had not removed some of the gang tattoos on her body because it was too
expensive. She also claimed that Jessica’s cases had been “ruled out” and saw no danger in
exposing Jessica to D.S.O. In a factual sufficiency review, we must defer to “the decisions of the
factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter
when assessing the credibility and demeanor of witnesses.” In re A.B., 2014 WL 1998440, at *3.
And, in reviewing the entire record, a rational factfinder could have not believed this testimony
from Roxanne S. The trial court’s best-interest finding is factually sufficient.
We therefore affirm the trial court’s order of termination.
Karen Angelini, Justice
- 12 -