in the Interest of S. P., a Child , 2016 Tex. App. LEXIS 10129 ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-15-00360-CV
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Appeal from
IN THE INTEREST OF: S.P., A CHILD. §
65th District Court
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of El Paso County, Texas
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(TC # 2013DCM5194)
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OPINION
This appeal is from a judgment terminating the parental rights of J.P., father, and M.C.,
mother, to their child, S.P. For the reasons that follow, we affirm.
FACTUAL SUMMARY
M.C. (Mother) has four children: eighteen-year-old T.C., seventeen-year-old S.C., C.P.,
and S.P. who was five years of age at the time of trial. J.P. is the father of both C.P. and S.P.
This case involves only S.P., but the other children have been removed from Mother’s home in
the past.
On June 14, 2013, eighteen-month-old S.P. was found alone at 9:30 a.m. behind a
restaurant. The child was dirty, her hair was matted, and she had urinated on herself. The El
Paso Police Department searched for the child’s parents around the restaurant and in the
neighborhood for approximately an hour, but they were not immediately located. Some people
in the area directed the officers to an apartment where the child was believed to live, but no one
answered the door. As the officers started to leave, a teenager approached them and identified
himself as S.P.’s brother. The officers did not leave S.P. in her brother’s care because he had
already allowed her to wander away from the apartment. The police continued to search for
S.P.’s parents and they found her mother, M.C., intoxicated in a bar around 4:00 p.m. that same
day. When the officers informed M.C. (Mother) why they were looking for her, she was
unconcerned and told them that she had left S.P. in the care of her son. The Texas Department of
Family and Protective Services (the Department) removed the child and placed her at the Child
Crisis Center.
The following day, Mother spoke with Maria McCord, an investigator with the
Department, and told her that she was an alcoholic and she left the apartment that morning at
approximately 7:00 to go to a neighborhood bar. Mother left S.P. in the care of the child’s
father, J.P., (Father). McCord also spoke with Father, who explained that he had been watching
S.P., but he asked his step-son to watch S.P. while he went to the store. Father told McCord that
S.P. had been in her playpen when he left the apartment. When he returned home at noon, S.P.
was not in the apartment. Father told McCord that he did not look for her because he knew that
S.P. played in the playground near the apartment. Father pointed in the direction of the
playground, but McCord could not see it from the apartment. In McCord’s opinion, it was not
safe for a child of S.P.’s age to be playing alone in a playground. In contrast with what he told
McCord, Father testified at trial that he was gone for only a half hour and he began searching for
S.P. around the area. Father denied telling McCord that he did not look for S.P. or that she
sometimes played unsupervised at the playground.
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The Department filed suit on July 15, 2013 seeking to be made permanent managing
conservator of S.P. if the child could not be safely reunified with either parent. The petition also
sought termination of the parental rights of Mother and Father if reunification could not be
achieved. The Department initially intended to return S.P. to her parents, and the parents were
offered services. Both Mother and Father were required to participate in marriage counseling,
parenting classes, anger management classes, and Alcoholics Anonymous. Mother was
additionally required to undergo out-patient treatment for alcoholism through Aliviane. The
parents complied with these requirements and S.P. was returned to her family under monitored
supervision in May 2014. The Department removed S.P. on August 20, 2014 because both
parents tested positive for the use of alcohol. Neither parent attended the permanency hearing
held the following day. Mother began out-patient treatment for alcoholism through Aliviane, but
she did not complete the program. Both parents were required to participate in anger
management closes, but they failed to do so. Additionally, Father failed to complete a substance
abuse evaluation and he also missed scheduled visits with S.P. The evidence showed that
Father’s parental rights to another child, C.P., had been terminated.
The Department filed its second amended termination petition in February 2015. It
sought to terminate Mother’s and Father’s parental rights under Section 161.001(1)(D),
161.001(1)(E), and 161.001(1)(O). See TEX.FAM.CODE ANN. § 161.001(1)(D), (E), and (O)
(West Supp. 2016). Additionally, the petition alleged that Mother had been convicted or placed
on community supervision for the offense of endangering or abandoning a child under Section
24.041. See TEX.FAM.CODE ANN. § 161.001(1)(L). After a bench trial, the trial court entered
judgment terminating the parental rights of both Mother and Father.
MOTHER’S APPEAL
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A parent’s rights may be involuntarily terminated through proceedings brought under
Section 161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001. Under this
provision, the petitioner must (1) establish one or more of the statutory acts or omissions
enumerated as grounds for termination, and (2) prove that termination is in the best interest of
the children. See id. Both elements must be established and termination may not be based solely
on the best interest of the children as determined by the trier of fact. Texas Department of
Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d
135, 138 (Tex.App.--El Paso 2015, no pet.).
In three issues, Mother challenges the legal and factual sufficiency of the evidence
supporting the trial court’s findings that termination is in the child’s best interest, that Mother
knowingly placed or knowingly allowed S.P. to remain in conditions or surroundings which
endanger the child’s physical or emotional well-being, and that Mother engaged in conduct or
knowingly placed S.P. with persons who engaged in conduct which endangers the physical or
emotional well-being of the child. Significantly, Mother has failed to challenge the sufficiency
of the evidence supporting the trial court’s predicate termination finding under subsection O that
she failed to comply with the provisions of a court order that specially established the actions
necessary for the mother to obtain the return of the child. This unchallenged finding is sufficient
to support the order of termination provided that the evidence is legally and factually sufficient
to support the best interest finding. See Perez v. Texas Department of Protective and Regulatory
Services, 148 S.W.3d 427, 434 (Tex.App.--El Paso 2004, no pet.).
Sufficiency Standards
When reviewing the legal sufficiency of the evidence in a termination case, we consider
all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a
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reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”
In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the
fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that
finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long
as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We
disregard any evidence that a reasonable fact finder could have disbelieved, or found to have
been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re
J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, the inquiry is whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the challenged findings. See
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002). A court of appeals should consider whether disputed evidence is such that
a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.
If 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.
Best Interest - Legal Sufficiency
A determination of best interest necessitates a focus on the child, not the parent. See In
the Interest of B.C.S., 479 S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of
R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). There is a strong presumption that
it is in the child’s best interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d
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at 927. The Texas Supreme Court has enumerated certain factors which should be considered:
the child’s desires; the child’s emotional and physical needs now and in the future; the emotional
and physical danger to the child now and in the future; the parenting abilities of the individuals
seeking custody; the programs available to assist those individuals to promote the child’s best
interest; the plans for the child by those individuals or the agency seeking custody; the stability
of the home or proposed placement; the parent’s acts or omissions that may indicate that the
existing parent-child relationship is not a proper one; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (“the Holley factors”). We also
must bear in mind that permanence is of paramount importance in considering a child’s present
and future needs. In re B.C.S., 479 S.W.3d at 927.
We begin by examining the legal sufficiency of the evidence supporting the best interest
finding. The first factor is the desires of the child. S.P. was five years of age at the time of the
trial and there is no evidence indicating that she articulated her wishes. The record reflects that
the little girl has been well-cared for by her foster family and she has bonded with them. Further,
there is evidence that Mother’s visitation with S.P. has been suspended because she missed visits
with her. The evidence related to this factor weighs in favor of the trial court’s best interest
finding. See In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th Dist.] 2003, pet.
denied)(evidence that a child is well-cared for by her foster family, is bonded to her foster
family, and has spent minimal time in the presence of her father and his family is relevant to the
best interest determination under the desires of the child factor).
The next two factors are the child’s emotional and physical needs now and in the future,
and the emotional and physical danger to the child now and in the future. We will consider these
factors together because the pertinent evidence is overlapping. The need for permanence is a
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paramount consideration for a child’s present and future physical and emotional needs. Edwards
v. Texas Department of Protective & Regulatory Services, 946 S.W.2d 130, 138 (Tex.App.--
El Paso 1997, no pet.), disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex.
2002); In re U.P., 105 S.W.3d at 230 (stating that children need permanency and security). A
factfinder may infer that past conduct endangering the wellbeing of a child may recur in the
future if the child is returned to the parent. In re D.L.N., 958 S.W.2d 934, 934 (Tex.App.--Waco
1997, pet. denied). The evidence at trial established that Mother is an alcoholic, and she has
relapsed frequently. After S.P. was returned to Mother in May 2015, Mother relapsed and the
Department removed S.P. a second time. Mother did not complete her outpatient treatment
program following this removal. Mother has engaged in a pattern of neglecting and abandoning
the children while drinking. In this case, she left the house at 7:00 a.m. to go to a bar and she
was unconcerned about her daughter’s welfare when the police contacted her in the bar at 4:00
p.m. and told her that S.P. had wandered away from home. S.P. was dirty, her hair was matted,
and she had urinated on herself. Mother has been twice convicted of abandoning a child with no
intent to return. Further, all of the children have been removed from the home at least once, and
Mother’s parental rights to C.P. were terminated. There is also evidence that Mother did not
visit S.P. consistently while this case was ongoing and it resulted in the cancellation of her visits.
Based on the evidence of Mother’s failure to comply with her court-ordered services, the trial
court was free to infer that Mona’ failure to complete her services indicates a continued danger to
the child. We conclude that the second and third factors weigh heavily in support of the best
interest finding.
The fourth factor is the parenting abilities of the individuals seeking custody. In
reviewing the parental abilities of a parent, a factfinder can consider the parent’s past neglect or
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past inability to meet the physical and emotional needs of the children. D.O. v. Texas
Department of Human Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ),
disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). As set forth in our
discussion of the second and third factors, there is ample evidence that Mother has in the past
demonstrated an ability to meet the physical and emotion needs of the children. The evidence
related to this factor supports the best interest finding.
The fifth factor examines the programs available to assist those individuals to promote
the child’s best interest. Mother participated in some of the services offered, but she refused to
take the anger management classes a second time, and she did not complete the outpatient
program following her relapse in August 2015. The factfinder can infer from a parent’s failure
to take the initiative to utilize the available programs that the parent did not have the ability to
motivate herself in the future. In re W.E.C., 110 S.W.3d 231, 245 (Tex.App.--Fort Worth 2003,
no pet.).
We will consider the sixth and seventh factors together. The sixth factor is the plans for
the child by those individuals or the agency seeking custody. The seventh factor is the stability
of the home or proposed placement. The Department’s plan is termination of parental rights and
unrelated adoption. The foster parents intend to adopt S.P. Mother testified that she wants S.P.
to be returned to live with her and J.P. who was the sole source of the family’s income, although
Mother has a claim pending for mental disability. The evidence demonstrates that the foster
parents have provided S.P. with a stable environment and they have provided for her needs.
The eighth factor is the parent’s acts or omissions that may indicate that the existing
parent-child relationship is not a proper one. The evidence shows that Mother has a history of
neglecting and abandoning all of her children, and this behavior continued even though the
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Department became involved with the family and offered services, including those directed at
addressing Mother’s issue of alcohol abuse.
The ninth factor is whether there is any excuse for the parent’s acts or omissions. Mother
has at various times stated that she left S.P. with Father on the morning when S.P. wandered off
by herself. As observed by the Department in its brief, Mother does not explain why she left her
family to go to a bar at 7:00 that morning. We conclude that the evidence is legally sufficient to
establish a firm conviction in the mind of the trial court that termination of Mother’s parental
rights is in the child’s best interest.
We turn now to the factual sufficiency of the evidence supporting the best interest
finding. There is some contrary or disputed evidence relative to the Holley factors. Mother did
participate in some programs offered to her, including one outpatient program for alcohol abuse,
but she relapsed. At trial, Mother testified that she had been sober for several months and she
was taking medication for depression. While Mother’s testimony indicated she had made
improvements in her life in contrast with her past behavior, the evidence is not such that a
reasonable factfinder could not have resolved it in favor of the challenged best interest finding.
We conclude that the evidence is factually sufficient to support the trial court’s determination
that termination of Mother’s parental rights to S.P. is in the child’s best interest. Issues One,
Two, and Three are overruled. The final order terminating Mother’s parental rights to S.P. is
affirmed.
FATHER’S APPEAL
Father is represented on appeal by court-appointed counsel who has filed a brief in
accordance with the requirements of Anders v. California, 386 U.S. 738, 741-44, 87 S. Ct. 1396,
1398-1400, 18 L. Ed. 2d 493 (1967). Court-appointed counsel has concluded that, after a
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thorough review of the record, Father’s appeal is frivolous and without merit. In Anders, the
Supreme Court recognized that counsel, though appointed to represent the appellant in an appeal
from a criminal conviction, had no duty to pursue a frivolous matter on appeal. Anders, 386 U.S.
at 744, 87 S.Ct. at 1400. Thus, counsel was permitted to withdraw after informing the court of
his conclusion and the effort made in arriving at that conclusion. Id. We have held that the
procedures set forth in Anders apply to an appeal from a case involving the termination of
parental rights when court-appointed counsel has determined that the appeal is frivolous. See In
re J.B., 296 S.W.3d 618, 619 (Tex.App.--El Paso 2009, no pet.); In re K.R.C., 346 S.W.3d 618,
619 (Tex.App.--El Paso 2009, no pet.); see also In re C.A.B., No. 08-08-00346-CV, 2009 WL
3152869, * 1 (Tex.App.--El Paso Sept.30, 2009, no pet.)(mem. op.).
Counsel’s brief meets the requirements of Anders by advancing contentions that might
arguably support the appeal. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969);
Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Currie v. State, 516 S.W.2d 684
(Tex.Crim.App. 1974). Counsel has notified the Court in writing that he has delivered a copy of
counsel’s brief and the motion to withdraw to Father, and he has advised Father of his right to
review the record, file a pro se brief, and to seek discretionary review. Kelly v. State, 436
S.W.3d 313, 318-20 (Tex.Crim.App. 2014)(setting forth duties of counsel). Father did not file a
motion for access to the appellate record or otherwise notify the Court that he wished to review
the record. Further, a pro se brief has not been filed.
Upon receiving an Anders brief, we are required to conduct a full examination of all of
the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 350, 109 L. Ed. 2d 300 (1988). We have thoroughly reviewed the entire
record, including the Anders brief, and we have found nothing that would arguably support an
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appeal. We agree with counsel’s professional assessment that the appeal is frivolous and without
merit. Because there is nothing in the record that might arguably support the appeal, a further
discussion of the arguable grounds advanced in the brief filed by court-appointed counsel would
add nothing to the jurisprudence of the state. The final order terminating Father’s parental rights
to S.P. is affirmed.
September 14, 2016
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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