in the Interest of J.R.S. ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00386-CV
IN THE INTEREST OF J.R.S.
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-00465
Honorable Richard Garcia, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice
Patricia O. Alvarez, Justice
Jason Pulliam, Justice
Delivered and Filed: September 23, 2015
AFFIRMED
B.J.D. appeals the trial court’s order terminating his parental rights to minor child J.R.S.
In his sole issue on appeal, B.J.D. asserts the evidence was neither legally nor factually sufficient
for the trial court to find by clear and convincing evidence that terminating his parental rights was
in J.R.S.’s best interests. We conclude the evidence is both legally and factually sufficient, and
we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 14, 2013, the Department of Family and Protective Services received a
referral alleging neglectful supervision of two-year old J.R.S. On November 23, 2013, Anisha
McCord notified the Department that J.R.S’s mother, Rachel, had placed J.R.S. in her custody.
The Department continued attempts to assist Rachel; however on January 3, 2014, Rachel
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completed an Authorization Agreement for Nonparent Relative or Voluntary Caregiver
authorizing McCord to care for J.R.S.
On February 27, 2014, the Department filed the petition to remove J.R.S. from her mother’s
custody for allegations of neglectful supervision and physical neglect. The trial court granted the
petition and appointed the Department as temporary sole managing conservator of J.R.S.
On March 25, 2014, B.J.D., the alleged father, announced not ready and denied paternity.
On April 9, 2014, the trial court ordered genetic testing. A family service plan for B.J.D. was
prepared by the Department and submitted to the trial court on May 9, 2014. The following goals
were outlined for B.J.D.:
(1) show an ability to parent and protect J.R.S.;
(2) manage income to meet the basic needs of J.R.S.;
(3) demonstrate an ability to provide J.R.S. with adequate care and nurturance;
(4) demonstrate an ability to protect J.R.S from future abuse or neglect and
show concern for future safety of J.R.S.;
(5) maintain housing that is safe and free of hazards;
(6) provide protection, food, and shelter for J.R.S; and
(7) demonstrate an ability to use willing friends and resources to obtain
necessary support.
On May 19, 2014, B.J.D. appeared for a scheduling hearing and signed the family plan.
On December 1, 2014, the genetic testing confirmed B.J.D. was J.R.S.’s biological father. He was
adjudicated as J.R.S.’s father on February 20, 2015.
After several permanency hearings and a trial on the merits, on June 4, 2015, the trial court
terminated B.J.D.’s parental rights to J.R.S. based on B.J.D.’s
(1) Constructive abandonment [of J.R.S.]; department has made reasonable
efforts to return [J.R.S.] to the father, the father has not regularly visited or
maintained significant contact with [J.R.S.], and the father has
demonstrated an inability to provide [J.R.S.] with a safe environment,
pursuant to 161.001(1)(N); and
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(2) Fail[ure] to comply with the provisions of a court order that specifically
established the actions necessary for the father to obtain the return of
[J.R.S.] who has been in the permanent or temporary managing
conservatorship for the Department of Family and Protective Services for
not less than nine months as a result of the child’s removal from the parent
for the abuse or neglect of the child pursuant to 161.001(1)(O).
See TEX. FAM. CODE ANN. § 161.001(1)(N), (O) (West 2014). The trial court also found such
termination was in J.R.S.’s best interests. See id. § 161.001(2).
B.J.D. does not challenge the trial court’s findings concerning the statutory grounds for
involuntary termination of his parental rights. See TEX. FAM. CODE ANN. § 161.001(1); see also
In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). Instead, he argues the trial court erred because the
evidence was neither legally nor factually sufficient for it to find by clear and convincing evidence
that terminating his parental rights was in J.R.S.’s best interests. See TEX. FAM. CODE ANN.
§ 161.001(2); accord In re J.F.C., 96 S.W.3d at 266.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
“Involuntary termination of parental rights involves fundamental constitutional rights and
divests the parent and child of all legal rights, privileges, duties, and powers normally existing
between them.” In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.)
(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly
scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210
S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.).
An order terminating parental rights must be supported by clear and convincing evidence
that (1) the parent has committed one of the grounds for involuntary termination as listed in section
161.001(1) of the Family Code, and (2) terminating the parent’s rights is in the best interest of the
child. Id. § 161.001(2); In re J.F.C., 96 S.W.3d at 261. “There is a strong presumption that the
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best interest of a child is served by keeping the child with its natural parent, and the burden is on
the [Department] to rebut that presumption.” In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). The same evidence of acts or omissions used to establish
grounds for termination under section 161.001(1) may be probative in determining the best interest
of the child. Id.
When a clear and convincing evidence standard applies, a legal sufficiency review requires
a court to “look at all the evidence in the light most favorable to the 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.F.C., 96 S.W.3d at 266; accord In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). If the court
“determines [a] reasonable factfinder could form a firm belief or conviction that the matter that
must be proven is true,” the evidence is legally sufficient. See In re J.L., 163 S.W.3d at 85; In re
J.F.C., 96 S.W.3d at 266.
Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H.,
89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San
Antonio 2004, no pet.). We must consider “whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96
S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.
B. Best Interests of the Children
A trial court may terminate a parent’s rights to a child if it finds, inter alia, such
“termination is in the best interest of the child.” TEX. FAM. CODE ANN. § 161.001(2); accord In
re J.F.C., 96 S.W.3d at 261.
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1. Evidence Regarding the Children’s Best Interests
Applying the applicable standards of review for sufficiency of the evidence, we examine
all the evidence, see In re J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d
802, 807 (Tex. 2005) (crediting or disregarding evidence), and recite below the evidence that
especially pertains to the Holley factors, see Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). The trial court heard testimony from the following witnesses:
a. B.J.D.
B.J.D. testified telephonically from Wisconsin, where he had lived for the prior nine
months. B.J.D. acknowledged, in March of 2009, he was adjudicated by a Wisconsin court for
criminal sexual assault of a child. After his adjudication, he moved to Texas to live with his
grandmother. There was extensive questioning regarding whether B.J.D. registered as a sex
offender when he arrived in Texas. He acknowledged that he had not; B.J.D. contended that
because of his age at the time of the adjudication, he was not actually guilty of the offense, and
therefore, refused to register with the sex offender registry. See In re D.M., 452 S.W.3d 462, 472
(Tex. App.—San Antonio 2014, no pet.). With regard to other offenses, B.J.D. acknowledged he
was also arrested for felony Failure to Stop and Render Aid.
B.J.D. was notified in March of 2015 that J.R.S. was in the Department’s custody.
Although he was the alleged father, he originally contested paternity and he was not adjudicated
as J.R.S.’s father until February 20, 2015. B.J.D.’s service plan allowed for bi-weekly visitation
by Skype. 1 During his testimony he acknowledged missing the last four visits, but expressed
several excuses for his absences.
I have tried to call and make visits, either they were refused or they were missed
calls. I have done everything in my power to make everything happen and I feel
1
A conversation over an internet, video-phone service.
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like everything I do just isn’t enough. Every time I finish something, there is just
something else I’ve got to do, and I have done it to the fullest extent.
B.J.D. could not provide the trial court with any substantive information about his daughter. He
knew her birthday and that she liked to run around the house in circles. When asked what he talked
about during his visits, he claimed to read to her and try to convince her to use the toilet. B.J.D.
professed being “stuck” in Wisconsin on “medical leave” due to a blood clot in his brain and was
awaiting a Social Security disability claim. He further acknowledged having only seen J.R.S. in
person once in her entire life.
B.J.D. did not have permanent housing and relied on SNAP 2 benefits for his daily needs.
He testified that he had not provided J.R.S. with any financial support. Although he contended he
had several certificates of completed services in his possession, the certificates had not yet been
mailed to his caseworker.
b. Robert Fugate, Corrections Program Specialist with the Wisconsin
Department of Sex Offender Registry
Robert Fugate also testified telephonically from Wisconsin. Fugate explained B.J.D. was
found guilty, as a juvenile in Washington County Circuit Court, of first-degree sexual assault of a
child. The conviction required B.J.D. to register as a sex offender until November 29, 2021.
Fugate testified there was a current warrant out for B.J.D.’s arrest for failure to comply with the
Wisconsin sex offender registry. B.J.D. allegedly failed to provide the following information to
registry: his residence, current employment, current school, and any volunteer work in which he
was participating. In B.J.D.’s case, as a condition of his probation, the Sex Offender Registry
mailed letters to the last known address. B.J.D. was required to respond within ten days and had
2
The Supplemental Nutritional Assistance Program in Wisconsin.
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failed to do so. When questioned, Fugate confirmed this provision applied whether B.J.D. resided
in Wisconsin or Texas.
c. Dina Noxson, Caseworker
Dina Noxson, J.R.S’s caseworker, testified it would be in J.R.S.’s best interests for B.J.D.’s
parental rights to be terminated. She also testified as follows.
(1) Protection of the Children
J.R.S. was originally referred to the Department for neglectful supervision and physical
neglect on November 14, 2014. Noxson testified the previous sexual abuse to which B.J.D. plead
guilty, was the sexual assault of a young child. J.R.S. was only two years old at the time of the
hearing, and Noxson expressed concern for her safety. See In re D.M., 452 S.W.3d at 473 (“In
some circumstances, evidence of even one Holley factor may be sufficient.”).
(2) Support, Care for Children
Noxson further opined that throughout the duration of the case, B.J.D. failed to demonstrate
he could provide a safe and stable home for J.R.S. He was living in a “structured home” at the
time, but it was not a permanent solution. Noxson also addressed whether B.J.D.’s grandmother,
in Texas, was a suitable placement. According to Noxson, B.J.D.’s grandmother suffered from
severe anxiety and depression and the grandmother further expressed that placement in her home
was not a viable option.
B.J.D. was clearly unable to provide any financial stability for J.R.S. Neither he nor his
family provided any financial support or clothing for J.R.S.’s care. He further could not
demonstrate an understanding of J.R.S.’s emotional and physical needs. In fact, Noxson testified
B.J.D. missed sixteen Skype visits over the previous four months.
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(3) Other Factors
Noxson averred that B.J.D. had completed his service plan; yet, B.J.D.’s service plan was
severely restricted by B.J.D.’s presence in Wisconsin where most services could not be provided.
In particular, B.J.D. had a history of drug use, but Noxson could not send him for drug
rehabilitation in Wisconsin. She stressed that B.J.D.’s visitation, even via internet, was not
consistent. Additionally, Noxson expressed concern that although B.J.D. originally admitted his
guilt on the sexual assault charge, he now denied the allegations.
Finally, Noxson testified that her future plans for J.R.S. included potential adoption by the
foster parents. The foster parents took possession of J.R.S. on November 23, 2013, based on
Rachel’s request that they do so. J.R.S. had been in their custody since that time and they had
provided her a stable, loving, and supportive environment. Although they were originally reluctant
to care for the child, Noxson testified they referred to J.R.S. as their “Ray of Sunshine” and had
stated their willingness to adopt J.R.S. J.R.S. was adjusting well to her placement and Noxson
was pleased that the foster parents arranged for monthly sibling visits with J.R.S.’s sister in San
Diego, Texas.
C. Holley Factors
The jury is the sole judge of the weight and credibility of the evidence, including the
testimony of the Department’s witness. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per
curiam) (requiring appellate deference to the fact-finder’s findings); City of Keller, 168 S.W.3d at
819. The factors a fact-finder uses to ascertain the best interest of the children were set forth in
Holley, 544 S.W.2d at 371–72; accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting
the Holley factors). The Holley Court warned that “[t]his listing is by no means exhaustive, but
does indicate a number of considerations which either have been or would appear to be pertinent.”
Id. at 372. We address the major issues faced by the jury below.
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1. The Desires of the Child
Here, J.R.S. was only two years old at the time of the hearing. As such, she could not
express an opinion.
2. The Emotional and Physical Needs of the Child and Protecting the Child
from Danger Now and in the Future
J.R.S. was removed for neglectful supervision and physical neglect. Although B.J.D.
professed his attempts to comply with the Department’s request, he had failed to provide any
semblance of a stable environment or evidence that he could financially support J.R.S.
Additionally, B.J.D.’s refusal to register as a sex offender or take responsibility for his previous
criminal actions, was also of great concern. This was especially relevant in light of the previous
charges involving the sexual assault of a small child. See In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth, 2003, no pet.) (“[A]busive or violent conduct by a parent or other resident of
a child’s home may produce an environment that endangers the physical or emotional well-being
of a child.”).
The evidence substantiated that, throughout the pendency of this case, B.J.D.’s actions
showed his inability to care for his emotional and physical needs, much less those of J.R.S.
B.J.D.’s criminal history provided further evidence of an inability protect J.R.S. either now or in
the future or that the existing parent-child relationship is a proper one.
3. B.J.D.’s abilities
The evidence was also sufficient to find B.J.D.’s abilities were severely limited. B.J.D.
was twenty-three years old at the time of the hearing. The evidence supported that he consistently
failed to exercise good judgment. Not only did he plead guilty to aggravated sexual assault of a
child, but then refused to comply with the requirements to register as a sex offender. The
caseworker testified there was a need for drug rehabilitation but that by being in Wisconsin, B.J.D.
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was not eligible for any of the Department’s programs. Additionally, B.J.D. himself
acknowledged he was also arrested for felony Failure to Stop and Render Aid. The result of that
arrest was not apparent from the record. The evidence presented substantiated B.J.D. lacked the
decision making skills and parental abilities to provide for and parent J.R.S. in a healthy and safe
manner.
4. Programs Available to Assist B.J.D. to Promote the Best Interest of the
Child
The evidence clearly supported the conclusion that B.J.D. was without a support system.
His presence in Wisconsin only exacerbated this issue. Although the Department attempted to
make resources available, his location made such services inaccessible. Additionally, B.J.D. was
adamant he did not want his rights terminated; yet, he could not provide a suitable plan for J.R.S.’s
placement.
5. B.J.D.’s Plans for the Children and Stability of the Home
At the time of the hearing, B.J.D. was residing in a “structured home” in Jackson,
Wisconsin. This was not permanent housing and he could not provide the court with plans for a
stable environment for J.R.S. Additionally, his failure to provide, at any level, for J.R.S. during
the duration of this case was evidence of his future inability to do so.
D. Analysis
The record clearly supports that B.J.D. failed to provide a safe and stable home for J.R.S.
and his inability to appropriately care for her.
Reviewing the evidence under the two sufficiency standards, and giving due consideration
to evidence that the jury could have reasonably found to be clear and convincing, we conclude the
trial court could have formed a firm belief or conviction that terminating B.J.D.’s parental rights
to J.R.S. was in J.R.S.’s best interests. See In re J.F.C., 96 S.W.3d at 266; see also In re H.R.M.,
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209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial
court’s order. See In re J.F.C., 96 S.W.3d at 266; see also In re H.R.M., 209 S.W.3d at 108.
CONCLUSION
The trial court found B.J.D. committed the statutory grounds supporting terminating his
parental rights and that terminating B.J.D.’s parental rights was in J.R.S.’s best interests. B.J.D.
only appealed the finding with regard to J.R.S’s best interests.
Having reviewed the evidence, we conclude it was legally and factually sufficient to
support the trial court’s finding by clear and convincing evidence that termination of B.J.D.’s
parental rights to J.R.S. was in J.R.S.’s best interests.
Accordingly, we overrule B.J.D.’s sole issue on appeal and affirm the trial court’s order.
Patricia O. Alvarez, Justice
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