in the Interest of K.R.E.T. Children ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00064-CV
IN THE INTEREST OF K.R.E.T., et al., Children
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02260
Honorable Dick Alcala, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: July 22, 2015
AFFIRMED
B.T. appeals the trial court’s order terminating her parental rights to her children K.R.E.T.,
C.R.A., D.S.T., and M.J.T. In her only issue, B.T. asserts the evidence was neither legally nor
factually sufficient for the trial court to find by clear and convincing evidence that terminating her
parental rights was in her children’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 September 18, 2013, the Department of Family and Protective Services petitioned to
remove B.T.’s children from her based on allegations of physical abuse. The trial court granted
the petition and appointed the Department as temporary sole managing conservator of the children.
One of the children, C.R.A., was later placed with his biological father, D.A. After several
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permanency hearings and a jury trial on the merits, the trial court terminated B.T.’s parental rights
to her four children based on subparagraphs (D), (E), (F), (I), and (O) of Family Code section
161.001(1), see TEX. FAM. CODE ANN. § 161.001(1) (West 2014), and because it was in the
children’s best interests, see id. § 161.001(2).
B.T. does not challenge the trial court’s findings concerning the statutory grounds for
involuntary termination of her 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, she 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 her parental rights was in her children’s best interests. See TEX. FAM. CODE ANN.
§ 161.001(2); accord In re J.F.C., 96 S.W.3d at 261.
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; In re J.F.C., 96 S.W.3d at 261. “There is a strong presumption that the 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
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[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.
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
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especially pertains to the Holley factors, see Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). During four days of testimony, the jury heard from thirteen different witnesses and
arguments of various counsel for the Department, B.T., each of the fathers, and the children’s ad
litem.
a. D.A. (C.R.A.’s Father) and S.H. and C.H. (D.A.’s Grandparents)
D.A., S.H., and C.H. testified about the abuse allegations and their interactions with B.T.
B.T. failed to have regular visitation with C.R.A.; when she did see C.R.A., she was often late and
did not stay for the entire time allotted. Moreover, when C.R.A. would try to discuss incidents
that happened in the past, B.T. simply changed the topic and refused to engage in a conversation
with C.R.A. They described C.R.A.’s demeanor during and after visits with B.T. and his physical
and emotional reactions to the allegations. C.R.A. refused to see B.T. for several months and
exhibited signs of anxiousness before his visits. They also described C.R.A. suffering from
nightmares after his visits with B.T. Although C.R.A.’s anger issues have decreased after
counseling, he still exhibits signs of being afraid of water, which they attribute to incidents where
J.G., B.T.’s fiancé, held C.R.A. under water.
All three witnesses described B.T. as unable to care for or protect C.R.A. or his siblings.
Additionally, D.A. testified that B.T. had done “absolutely nothing” to contribute to or participate
in C.R.A’s academics, medical appointments, school activities, or financial stability. B.T. neither
bought Christmas presents nor contacted C.R.A. during the Christmas holidays. In fact, the last
visit B.T. had with C.R.A. was the first week of December, 2012. D.A. further opined that B.T.
“can’t and she won’t and she hasn’t protected” C.R.A. or his brothers and sisters.
Because B.T. began her relationship with D.A. prior to K.R.E.T.’s birth, D.A. and his
grandparents have had a relationship with K.R.E.T. her entire life. S.H. testified that from the
beginning, B.T. showed little concern for K.R.E.T.’s apparent developmental delays.
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b. Angie Steinau, Caseworker
Angie Steinau, B.T.’s caseworker, testified it would be in the children’s best interests for
B.T.’s parental rights to be terminated. She also testified as follows.
(1) Protection of the Children
Between the years of 2009 and 2011, there were twelve different referrals to Child
Protective Services regarding B.T.’s children. These incidents included nine cases of alleged
physical abuse, two cases of alleged negligent supervision, and one case of alleged sexual abuse.
The Department’s allegations centered on physical abuse of the children perpetuated by
J.G., who was B.T’s boyfriend at the time of the allegations. The abuse included J.G. striking
C.R.A with a seatbelt when B.T. was present. Steinau discussed the children’s outcries with B.T.,
and J.G. was indicted for the alleged abuse. Yet, almost without exception, B.T. continued to
believe the bruises, scratches, and black eyes were the result of accidents and “rough housing.”
Steinau explained the first item on B.T’s service plan provided that B.T. “will demonstrate and
show willingness to protect her children from harm.” Steinau specifically told B.T. that it was
“vital” that she “cut all contact and communication” with J.G. to regain possession of her children.
Yet, B.T. remained in a relationship with J.G.
When Steinau was looking for placement for the children, B.T. suggested a family friend,
Yvette Fischer. B.T. failed to disclose the previous allegations that K.R.E.T. had been sexually
abused in Fischer’s home. When asked, B.T. responded the perpetrator was deceased and that the
allegations were never proven.
(2) Support, Care for Children
Steinau further opined that throughout the duration of the case, B.T. was unable “to put her
children’s needs before her own, to provide clothing, shelter, medical care, food, and proper
supervision. Additionally, B.T. failed to secure consistent housing to provide shelter for the
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children or “learn new behaviors that encourage stability, self-worth, or cooperation with all family
members.” B.T. testified that her immediate plan included a two bedroom apartment located on
De Zavala. It was her plan to drive the children to Universal City for school, then drive back to
attend school on De Zavala, go to work, pick the children up from school and take them to her
work until 9:00 p.m. Moreover, she could not provide a reasonable basis for affording the rent for
the apartment in question.
Once again, Steinau emphasized B.T.’s failure to terminate her relationship with J.G.
Regardless of Steinau’s attempts, B.T. did not recognize the signs of domestic violence, including
yelling, throwing things, or physical abuse. Finally, Steinau testified B.T. failed to “demonstrate
her ability to protect her children from abuse and neglect.” Ultimately, the Department “had no
other choice but to move forward with termination [of B.T.’s parental rights] because [B.T.] still
was not acknowledging that this happened from this man who hurt her children.”
B.T. had not provided any financial support or clothing for the children since they moved
back to San Antonio. Although Steinau made several requests, B.T. failed to provide proof of
employment or residency. B.T. also failed to obtain the psychological support Steinau suggested.
(3) Other Factors
Steinau testified that during different periods of time, the children have asked when they
are “going home.” She further opined that the children do not express a clear position regarding
termination—they miss B.T., but do not miss the unstable living environment. Steinau opined the
children have not had a stable environment with B.T. since they were born. Although she offered
several different services to assist, B.T. failed to take advantage of any of the services.
They have not had stability since they were born, basically. They had been moved
around. I don’t—because of the moving and the instability, I think the very basic
needs were met, but I think a child should be provided more than that. Yes, they
had a roof over their head. I believe somebody testified at one point that [B.T.] was
in a car. I don’t know how long that happened. I don’t know how they got food. I
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see a pattern—a strong pattern of domestic violence. I don’t see that pattern of
domestic violence has been broken. I don’t see a change of behavior. I don’t see
[B.T.] having put her children’s needs before her own through the duration of this
case. I feel that the lack of acknowledgement about what happened to her children
and who caused them to be harmed was never discussed. And I don’t think it was
ever really believed by [B.T.], and I think that continues to put them in danger.
Although Steinau indicated great concern regarding B.T.’s lack of housing and
employment, she reiterated this was not the primary reason for her recommendation that
termination was in the children’s best interests.
The primary reason is the failure to keep her children safe, and the possibly
continued relationship with [J.G.], who was—it was a severe domestic violence
situation, and the kids were harmed, they were hurt. . . . And the failure to
acknowledge that [J.G.] did hurt her children.
c. R.H., the Current Placement for K.R.E.T., D.S.T., and M.J.T.
R.H. testified that she has cared for K.R.E.T., D.S.T., and M.J.T. since August of 2014.
R.H. explained that she had known B.T. for over eleven years, since B.T. was fifteen years old.
B.T. used to babysit R.H.’s children. She indicated that she was saddened to discover that B.T.
was still in a relationship with J.G.
Regarding the children, R.H. relayed her attempts to acclimate the children to an
environment where they must follow the rules. K.R.E.T. struggles emotionally, verbally, and
academically; on her last report card, she was failing every subject. R.H. suspects K.R.E.T. is
dyslexic, but no diagnosis has been made. K.R.E.T. still has issues with bedwetting and lying.
D.S.T. is doing very well academically, but still exhibits anger management issues and has “been
written up at daycare numerous times for hitting people, throwing chairs, hitting a teacher.” M.J.T.
also has anger issues and actually “beat up his daycare teacher.”
R.H. expressed some frustration with B.T. regarding her ongoing relationship with J.G. “I
encouraged her to terminate her relationship with him because, to me, her children are more
important than he is.”
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d. Barbara Bass, Court Appointed Special Advocate
Barbara Bass first met B.T.’s four children in October of 2013. She explained that she has
seen the children two to three times a month over the last sixteen months. During that time, she
has seen the children in the placement homes, at school, at day care, and during parent-child visits
with B.T. Bass explained that originally, she felt B.T. was working to remedy the issues, and in
March of 2014, Bass recommended reconciliation to the trial court. By January of 2015, that
recommendation had changed and Bass was recommending B.T.’s parental rights be terminated.
Bass explained that she attended a lot of parent-child visits and in her opinion, B.T. “didn’t
seem to put the kids first.” Bass described B.T. as more concerned financially with having her
nails done than having money to buy the children ice cream, and although B.T. would interact with
her children, she was always in a hurry to leave. “And I know it sounds financial, but that’s a big
thing with children is you have to put away money to take care of your children and take care of
their needs, and at this point it’s just emotional needs.” Bass averred that, in her opinion, she did
not believe that B.T. could protect and take care of the children.
e. Yvette Fischer
Fischer testified that she cared for K.R.E.T., D.S.T., and M.J.T. between March and August
of 2014. Fischer relayed that the children visited with B.T. via phone twice weekly, on Sundays
and Wednesdays. On two occasions, B.T. put J.G. on the phone and Fischer immediately
disconnected the call. When Fischer confronted B.T., she claimed the individual was not J.G.
When asked, Fischer explained that she knew J.G. and knew his “distinctive voice.” Fischer
further relayed, that after a couple of months, things “started turning sour.” B.T. would not talk to
her and failed to visit the children on several occasions. Fischer ultimately asked the Department
to remove the children because five children was more than she could handle.
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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 interests 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.
1. The Desires of the Children
In the present case, Steinau testified that the children did not express an opinion on the
termination of B.T.’s parental rights. With the exception of C.R.A., the children expressed that
they missed their mother, but they simultaneously expressed their desire for a more stable living
arrangement. Although the children expressed that they missed their mother, this cannot be the
sole deciding factor. See Phillips v. Tex. Dept. of Protective & Regulatory Servs., 25 S.W.3d 348,
356 (Tex. App.—Austin 2000, no pet.) (“What children want, however, is not always in their best
interests. We hold that the desire of the children to stay with their mother does not outweigh the
other evidence that their home life was chaotic, that their emotional and physical well-being was
threatened, and that their mother was unwilling to improve as a parent.”).
2. The Emotional and Physical Needs of the Children and Protecting the
Children from Danger Now and in the Future
Prior to this incident, twelve calls were made to the Department regarding B.T. and her
children, including one case where the Department removed the children. The various cases
included physical abuse, neglectful supervision, and an allegation of sexual assault involving
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K.R.E.T. 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.”).
Throughout the pendency of this case, B.T.’s actions showed her inability to care for the
emotional and physical needs of the children and to protect her children from danger. Although
J.G. was under indictment for injuring her children, and the Department provided B.T. with the
children’s outcries of abuse by J.G., B.T. continued her relationship with J.G. Additionally, when
the Department sought suitable housing for the children, B.T. recommended Fischer and allowed
the Department to place the children in Fischer’s home without alerting the Department of the
prior allegations of the sexual assault of K.R.E.T. while in Fischer’s care. The jury could have
also looked to the testimony regarding B.T.’s inability to recognize or seek help for K.R.E.T.’s
developmental delays or the anger issues seen in both D.S.T. and M.J.T.
The jury could have reasonably determined that B.T. was unable to put her children’s
emotional and physical needs before her own and that she was unable to protect her children from
danger now or in the future. See In re C.J., 392 S.W.3d 763, 770 (Tex. App.—Dallas 2012, no
pet.) (looking at domestic violence in the home in a best interests determination).
3. B.T.’s abilities
The evidence was sufficient to find that B.T.’s abilities are limited. Throughout this case,
B.T. has shown that when it comes to caring for her children, she has not exercised good judgment.
The jury could have relied on B.T.’s continued relationship with J.G. and her recommendation for
placement of the children with Fischer. S.H. and B.H. testified that B.T. did not take full advantage
of visiting with her children and often cut the visits short. There was also significant testimony
that although B.T. professed that she purchased Christmas gifts for the children, the gifts were
never given to the children and she neither visited nor called the children on Christmas.
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Based on the evidence presented, the jury could have reasonably concluded that B.T.
lacked the decision making skills and parental abilities to provide for and parent her children in a
healthy and safe manner.
4. Programs Available to Assist B.T. to Promote the Best Interests of the
Children
The evidence clearly supported the conclusion that B.T. was without a support system.
Yet, even when the Department made resources available, B.T. did not reach out for assistance.
As Steinau explained, the psychological counseling would have provided B.T. with the skills to
identify and escape domestic violence. She chose not to participate in the counseling required by
the Department. The only exception to this appeared to be B.T.’s attempts at increasing her
education. B.T. testified that her degree requirements were almost complete and she was looking
forward to her externship. Once again, B.T.’s inability to plan ahead left her without any
description of what the externship would entail and how she would provide for childcare during
the externship.
5. B.T.’s Plans for the Children and Stability of the Home
Although B.T. professed to have a two-bedroom apartment waiting for her, she clearly
could not afford the monthly rent and had not made any arrangements for such. She testified that
she brought in about $800 per month from her current job and the rent for the apartment was $900
per month. When asked, B.T. showed little concern for the shortfall. As further evidence of B.T.’s
inability to provide for her children, the jury could have reasonably concluded that B.T.’s failure
to provide, at any level, for her children during the duration of this case was evidence of her future
inability to do so.
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6. B.T.’s Acts or Omissions Which Indicate the Existing Parent-Child
Relationship is Not a Proper One
The jury need only look at B.T.’s relationship with J.G. for support that B.T. does not have
a proper parent-child relationship with her children. She failed to protect them from physical and
emotional injury at J.G.’s hands. Moreover, when she was confronted with the evidence against
J.G., she discounted the evidence and continued her relationship with him. Additionally, the jury
heard testimony from S.H. about B.T.’s inability to discuss the abuse with C.R.A. When C.R.A.
asked B.T. about what had transpired, she avoided the question and changed the topic of
conversation. Throughout the duration of the case, B.T. failed to take responsibility for placing
the children in a dangerous environment or allowing the children to be harmed.
D. Analysis
The jury could have reasonably believed the testimony that J.G. abused all four of B.T.’s
children, specifically (1) hitting C.R.A. with a seatbelt and holding his head underwater and (2)
hitting K.R.E.T. with such force it caused bruising. The record clearly supports B.T.’s
unwillingness to put her children’s needs before her own and inability to effect positive changes
within a reasonable time. The jury could have also reasonably believed the testimony that B.T.
(1) failed to provide a safe and stable home for her children, (2) failed to provide proof of
employment, and (3) her inability to appropriately care for her children.
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
jury could have formed a firm belief or conviction that terminating B.T.’s parental rights to
K.R.E.T., C.R.A., D.S.T., and M.J.T. was in each child’s best interests. 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. Therefore, the evidence is legally and factually
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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.T. committed the statutory grounds supporting terminating her
parental rights and that terminating B.T.’s parental rights was in the children’s best interests. B.T.
only appealed the best interest of the children finding.
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.T.’s
parental rights to K.R.E.T., C.R.A., D.S.T., and M.J.T. was in each child’s best interest.
Accordingly, we overrule B.T.’s sole issue on appeal and affirm the trial court’s order.
Patricia O. Alvarez, Justice
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