in Re: D.S., a Minor Child ( 2003 )

Opinion issued April 24, 2003  

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00070-CV

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LATIFAH SMITH, Appellant

v.

TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee

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On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 116096

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MEMORANDUM OPINION

          The trial court terminated the parental rights of appellant, Latifah Smith, to D.S., a four-year-old minor at the time of the bench trial. In six issues for review, appellant challenges the legal and factual sufficiency of the evidence and raises constitutional claims. We affirm.

Background

          Appellant was 14 years old when she gave birth to D.S. in March 1997. Appellant’s mother died when appellant was 13, and appellant was living with her father and brother at the time D.S. was born. According to appellant, drugs were being sold from the family’s house. Appellant testified that her brother was a gang member, and before D.S. was born, appellant was also in a gang. Appellant also testified that her brother had sexually abused her. Appellant’s father did not believe her allegations about the abuse and he did nothing to protect appellant from her brother. Appellant’s brother also abused D.S. by blowing fumes from an aerosol inhalant can into the baby’s face. Appellant contacted the Texas Department of Protective and Regulatory Services (TDPRS), and she and D.S. were removed from her father’s home and placed in foster care. After staying in one foster home for six months, appellant and D.S. were eventually placed in the foster care of Ms. E’van Simien in January 1998. D.S. was less than a year old at the time she and appellant went to live with Ms. Simien.

          Ms. Simien provided appellant and D.S. with a stable home environment. While living with Ms. Simien, appellant did well in school and did not use illegal drugs. Appellant turned 18 on July 24, 2000, and could have removed herself and her daughter from Ms. Simien’s home at that time. Instead, appellant chose to remain in foster care with Ms. Simien. Appellant understood that, in order to remain in voluntary foster care at the Simien home, she could not leave for long periods of time. However, on October 20, 2000, appellant argued with Simien’s 18-year-old daughter over washing the dishes. At the time of the argument, D.S. was away from the Simien home, visiting a family friend for the weekend. Appellant left the Simien home in the early morning hours of October 21, 2000.

          Appellant contacted Ms. Simien in the afternoon on October 22nd. Despite being encouraged to return to her foster home by Ms. Simien and her TDPRS case worker, appellant did not return to the Simien home. In the meantime, D.S. had returned to the Simien house after the conclusion of her visit in Louisiana. Appellant returned to the foster home briefly on the afternoon of October 22nd in order to gather some of her belongings. Appellant did not attempt to take D.S. with her. Instead, appellant left the child with Simien.

          Four days after appellant left the foster home, TDPRS filed its original petition requesting that TDPRS be appointed temporary managing conservator of D.S., and that appellant’s parental rights to D.S. be terminated if the child could not be reunited with appellant. On November 7, 2000, the trial court, following a hearing where appellant was present, entered temporary orders appointing TDPRS as temporary sole managing conservator of the child. Appellant was allowed to have supervised visitation with D.S., and the orders laid out a specific set of required actions that appellant would need to complete in order to possibly obtain the return of her child. These actions included submitting to psychological testing, counseling, and parenting classes. Appellant also was required to demonstrate that she could establish a safe and stable home for the child by maintaining employment, arranging for child care, and providing suitable housing. Appellant was notified that the failure to complete these actions could result in the restriction or termination of her parental rights.

          Instead of adhering to the court’s order, appellant began a decline from the progress she had made while living with Ms. Simien. After she left the Simien home, appellant briefly went to stay with the mother of a friend. However, one month after leaving Simien’s home, appellant moved back into the home of her father and abusive brother. The home was described at the hearing. Witnesses stated that dog feces covered the floor and that appellant appeared nervous while living with her brother and father. Appellant’s father could not pay the mortgage on the house, however, so appellant moved in with her uncle for a time. While living with her uncle, appellant refused to provide her TDPRS caseworker with her uncle’s address or phone number.

          During this time when appellant was living first with her father, then her uncle, appellant earned money by working as a topless dancer and prostituting herself. In the spring of 2001, appellant began missing school and eventually dropped out before taking her eleventh grade final exams. She was using drugs during this period. On June 8, 2001, TDPRS moved to have appellant evaluated for drug and alcohol abuse. On June 20, 2001, the court issued an amended temporary order that added drug and alcohol evaluation to the previous November 2000 conditions.

          Appellant’s record of attending the counseling sessions required by the November 2000 temporary orders was mixed. Appellant underwent a psychological evaluation on December 6, 2000. As a result, psychological counseling was prescribed. TDPRS referred appellant to Provilla Scruggs for counseling. Although appellant initially attended the counseling sessions, eventually Scruggs ended the counseling after appellant failed to appear for seven sessions. Appellant was then offered counseling with Marie Turcich, but appellant failed to appear for a single session. Appellant blamed her failure to attend on a variety of transportation problems. Appellant did complete her parenting classes on March 8, 2001.

          Appellant failed to complete drug counseling and anger management courses. After the court-ordered drug testing in June 2001 revealed that appellant used marihuana and alcohol, TDPRS referred appellant to an outpatient treatment program called Turning Point in Richmond, Texas. Because the location was not convenient for appellant, arrangements were later made to attend counseling sessions at a Turning Point location in Houston, but appellant failed to attend a single session.

          On August 17, 2001, appellant voluntarily enrolled in a program called New Hope provided by the Star of Hope, a charitable organization. She was referred to this program by her attorney rather than by TDPRS, although TDPRS was informed of her placement in the program a few weeks later. At the time of the hearing on December 3, 2001, appellant was scheduled to complete the drug recovery portion of the program at the end of December 2001. She would then have had the opportunity to transfer into a transitional living program where housing would be provided and she could work towards a GED and receive training in basic life skills. Two Star of Hope employees who had worked with appellant testified that she had made progress in the program and they were optimistic about her chances for continued success in the future. Kelley Beecher of TDPRS testified that appellant’s psychological evaluation had indicated that she would do well in a structured environment, but that appellant tends to disregard social rules and act irrationally when out of a structured situation.

           While living with her father, her uncle, and at the Star of Hope, appellant was allowed supervised visits with D.S. Ms. Simien often transported D.S. to where appellant was living for these visits. Appellant missed several potential visits and some visits lasted less than an hour. Ms. Simien testified that, while appellant was living with her, appellant did not possess good parenting skills, and that appellant had often neglected to change D.S.’s diaper or wipe the child’s nose when asked. Ms. Simien testified that appellant would sometimes become rough with D.S., and that D.S. had indicated once that appellant had kicked her. Ms. Simien stated that she, rather than appellant, had been the primary maternal figure in the life of D.S. Evidence presented at trial showed that appellant had contributed only $200 worth of clothing and athletic shoes for her daughter, while Ms. Simien had provided D.S.’s food and clothing, as well as day care, ice skating lessons, and Sunday School classes for D.S.

          At trial, appellant expressed a desire to get her child back. At the time of the hearing, however, appellant was not in a position where D.S. could live with her, but she stated that it would potentially be possible for D.S. to live with her under the Star of Hope’s transitional living program that she hoped to enter.

Trial Court’s Decision

          In order to terminate the parent-child relationship under section 161.001 of the Family Code, the petitioner must establish one or more of the acts or omissions enumerated under subdivision (1) of the statute and must also prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2002 & Supp. 2003); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Here, the trial court’s termination order stated that the court found that (1) appellant failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child, in violation of section 161.001(1)(O), and (2) appellant violated section 161.001(1)(E) by engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. The court also found that termination was in the best interest of the child. Additional findings of fact and conclusions of law were filed by the court after appellant requested them.

Standards of Review

          Appellant challenges the legal and factual sufficiency of the evidence. The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). The clear and convincing standard needed to support termination of parental rights is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved. In re C.H., 89 S.W.3d at 25.

          When, as here, a party without the burden of proof challenges the legal sufficiency of the evidence, we will sustain the challenge only if, considering the evidence and inferences in the light most favorable to the finding, there is not more than a scintilla of evidence supporting it. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); In re B.M.R., 84 S.W.3d 814, 817 (Tex. App.—Houston [1st Dist.] 2002, no pet.). “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” Burroughs Wellcome, 907 S.W.2d at 499.

           The correct appellate standard of review for reviewing parental right termination factual findings is whether the evidence is such that 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 at 25. In reviewing the factual sufficiency, the reviewing court considers all the evidence in the record, both that which supports and that which contradicts the trial court’s findings. Id. at 29. When presented with legal and factual sufficiency challenges, the reviewing court first reviews the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam).

Court’s Conclusion on Reunification

          After the trial court issued the order terminating appellant’s parental rights, appellant requested that the court issue additional findings of fact and conclusions of law. As one of these additional conclusions of law, the trial court stated, “The Court concludes by clear and convincing evidence that the child cannot safely be reunified with Latifah Smith nor may the child be permanently placed with a relative or other suitable person.” In her first issue for review, appellant contends that the evidence is legally and factually insufficient to support this conclusion of law. Both appellant and TDPRS note, however, that this conclusion of law was not one of the original findings included in the court’s Order of Termination. Both parties agree that this additional conclusion of law is not an independent statutory ground for termination of parental rights. See Tex. Fam. Code. Ann. § 161.001(1).

          Appellant presents no argument or authority suggesting how insufficient evidence for this additional conclusion of law requires reversal of the court’s judgment. Accordingly, we hold that the issue has been waived because of inadequate briefing. Tex. R. App. P. 38.1(h); see Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). We overrule appellant’s first issue.

Conduct Which Endangers the Well-Being of the Child

          In her second issue, appellant asserts the evidence was legally and factually insufficient to support the court’s conclusion that appellant violated section 161.001(1)(E) by engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. The supreme court has stated that while “‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury.” Boyd, 727 S.W.2d at 533. Rather, “endanger” means “to expose to loss or injury; to jeopardize.” Id. If evidence shows a course of conduct that has the effect of endangering the physical or emotional well-being of the child, then a finding under section 161.001(1)(E) is supported. Id. at 534. Such a course of conduct need not occur in the presence of the child. See id at 533; In re B.B., 971 S.W.2d 160, 169 (Tex. App.—Beaumont 1998, pet. denied).

          Among the many findings of fact that the court made were the following: (1) appellant engaged in prostitution in the summer of 2001; (2) appellant was using drugs and drugs were being sold out of the home where she lived in the summer of 2001; (3) appellant dropped out of high school; (4) the vast majority, if not all of the visitations, between appellant and D.S. were initiated by and facilitated by Ms. Simien, the foster mother, who brought D.S. to appellant each time; (5) a mother-child relationship or bond between appellant and D.S. did not exist prior to appellant’s abandonment of the child with Ms. Simien. In addition, the evidence presented at the hearing showed that appellant had chosen to return to, and have D.S. visit her at, her father’s home—a home which was unsanitary and in which appellant lived with the brother who had previously abused both her and D.S and blew chemicals in the child’s face. Evidence also was presented regarding appellant’s inability to take affirmative steps to improve her situation or solve problems outside of the structured environment of the Star of Hope—appellant herself testified that the reason she dropped out of school, and the reason she failed to make most of her counseling sessions in Turning Point or with her individual counselors, is that she supposedly never learned to navigate the Houston bus system and was unable to do so.

Legal and Factual Sufficiency

          The trial court was presented with evidence regarding appellant’s past prostitution, her history of drug use, and her choice of living situation after leaving Simien’s home. Additionally, the court heard about appellant’s refusal or inability to improve her situation by completing her education, arranging transportation or even learning to navigate public transportation. Ms. Simien testified about appellant’s refusal or inability to care for D.S. while living in the Simien home. Neglecting a child’s physical condition may constitute endangerment. In re M.C., 917 S.W.2d 268, 270 (Tex. 1996). Further, after leaving the Simien home, appellant chose to move back in with her father and brother, and appellant arranged to have D.S. visit her at her father’s home, despite appellant’s brother’s past abuse of both appellant and D.S. After leaving the Simien home, appellant engaged in prostitution, lived in a home from which drugs were sold, and proved herself unable to remain drug-free. Appellant continued her drug abuse and failed to complete her Turning Point counseling, despite her knowledge that remaining drug-free and attending counseling sessions were conditions of regaining custody of D.S. A continuation of illegal drug use and other criminal activity, despite knowledge that parental rights are in jeopardy, has also been held evidence of “voluntary, deliberate and conscious conduct” that supports a finding of endangerment under section 161.001(1)(E). Robinson v. Texas Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 687 (Tex. App—Houston [1st Dist.] 2002, no pet.).   

          The evidence amply supported the trial court’s finding that appellant engaged in a course of conduct that had the effect of endangering the physical or emotional well-being of D.S. Accordingly, we find the evidence presented was legally sufficient to support the trial court’s finding that appellant endangered D.S. and violated section 161.001(1)(E). Additionally, considering all the evidence in the record, both that in support of and contrary to the trial court’s findings, we find that the evidence was factually sufficient to support the trial court’s finding that appellant endangered D.S. and violated section 161.001(1)(E). We overrule appellant’s second issue.Failure to Comply with Provisions of a Court Order

           Only one finding under the termination of parental rights statute is necessary for a judgment of termination. Robinson, 89 S.W.3d at 687. Because we found that the evidence was sufficient to support the trial court’s finding that appellant endangered D.S., we need only determine if the evidence was legally and factually sufficient to support the best interest finding. Accordingly, we do not reach appellant’s third issue challenging the legal and factual sufficiency of the evidence supporting the trial court’s finding that appellant failed to comply with a court order.

Best Interest of the Child

          In her fourth issue, appellant challenges the sufficiency of the evidence supporting the trial court’s determination that termination was in D.S.’s best interest. A strong presumption exists that a child’s best interest are served by maintaining the parent-child relationship. In re B.M.R., 84 S.W.3d at 819. In reviewing the sufficiency of the evidence to support the best interest finding, we ask “whether the factfinder could have reasonably formed a firm conviction or belief” that terminating appellant’s parental rights is in her child’s best interests. Id. Some of the factors an appellate court may consider in ascertaining the best interest of a child include the non-exhaustive list set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).         These include (1) the desires of the child, (2) the current and future emotional and physical needs of the child, (3) current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interest of the child, (6) plans for the child by the person seeking custody, (7) stability of the home or proposed placement, (8) acts or omissions of the parent that may indicate the parent-child relationship is not proper, and (9) any excuse for acts or omission of the parent. Id. The State is not required to prove all of the Holley factors, particularly where there is undisputed evidence that the parent-child relationship endangers the child’s safety. In re C.H., 89 S.W.3d at 27.  Absence of evidence about some of the Holley factors does not preclude a factfinder from reasonably forming a strong conviction that termination is in the child’s best interest. Robinson, 89 S.W.3d at 688. Finally, 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. In re C.H., 89 S.W.3d at 28.

Legal and Factual Sufficiency

                  Although D.S. was too young to be able to testify as to her own desires, the trial court heard testimony that D.S. considers Ms. Simien to be her mother, and that the two have a close and loving relationship. Although Ms. Simien did testify that D.S. does care about appellant, and that D.S. would be upset if she were unable to see appellant, Ms. Simien also stated that appellant refused to see to the daily care of D.S. and that D.S. saw Ms. Simien, not appellant, as her care-giver. Accordingly, the trial court found that there was no mother-child relationship between appellant and D.S. This court, in In re B.M.R., noted that although B.M.R., a toddler, was too young to express her wishes on the stand, the evidence supported the trial court’s finding that termination was in her best interest because the evidence showed that she did not view the appellant in that case as her father. 84 S.W.3d at 820.

          Second, the trial court heard testimony that Ms. Simien provided for both the emotional and physical needs of D.S., and that appellant contributed only minimally to the physical care of her child. Evidence was also presented regarding the stability of D.S.’s current environment, and appellant’s plans for D.S. should she regain custody of her daughter. Stability of the proposed home environment is an important consideration in reviewing the sufficiency of the evidence to determine whether termination is in a child’s best interests. See, e.g., In re J.M.R., 982 S.W.2d 137, 143 (Tex. App.—Houston [1st Dist.] 1998, no pet.)

          The evidence presented showed that D.S.’s physical needs have been provided for, with almost no exception, solely by Ms. Simien. Since the time she left Ms. Simien’s home, appellant’s sole source of income appears to have been through prostitution and topless dancing. Ms. Simien testified that she has a steady job that enables her to provide for D.S. as well as for her own adopted children. At the time of trial, appellant had attempted to secure family housing in the Star of Hope recovery program, but she could not affirmatively state that Star of Hope would allow D.S. to live with her while she completed her recovery programs. No evidence was presented regarding alternative plans appellant had made in the event Star of Hope did not allow D.S. to live with appellant, nor did appellant present evidence of her ability to earn a living to provide for D.S.’s needs. In contrast, Ms. Simien provided D.S. with a stable and nurturing foster home environment that included ice skating and Sunday School classes. Ms. Simien indicated at the hearing that she wanted to adopt D.S., but that she would continue to care for D.S. with the same attentiveness regardless of whether she was ultimately able to adopt her or not.  

          Further, we note that the impermanence and uncertainty of appellant’s living situation, coupled with appellant’s past pattern of returning to live with her father and abusive brother, call into question appellant’s ability to protect D.S. from future physical danger. While living with Ms. Simien, appellant demonstrated herself unable to see to the physical needs of her daughter. Instead, appellant left the care of D.S. to Ms. Simien. Ms. Simien testified that she attempted to leave D.S. in appellant’s care at least one day a week while appellant lived with her, but that those occasions often ended with Ms. Simien having to step in and take care of D.S. when appellant was unable. Although appellant completed parenting classes after leaving Ms. Simien’s home, she did not complete other prescribed counseling, nor was she able to stay off drugs, even when drug testing and counseling were made conditions of regaining custody of D.S. In Robinson, we held that a mother’s inability to stay off drugs and to make positive strides towards altering her pattern of illegal behavior constituted factually sufficient evidence to support a finding that termination was in the child’s best interest. 89 S.W.3d at 688.

           In the end, the efforts that appellant have made are simply insufficient to overcome the overwhelming bulk of evidence that was presented regarding D.S.’s best interest. While appellant did successfully complete her assigned parenting classes, she did not complete her assigned counseling sessions, she did not find permanent housing for herself and D.S., nor did she succeed in staying off drugs. During the period she was attempting to regain custody of D.S., appellant worked as a topless dancer, prostituted herself, and lived in a dangerous home environment with a brother who had sexually abused her. Accordingly, we hold the evidence was legally and factually sufficient to support the trial court’s finding that termination was in D.S.’s best interest. We overrule appellant’s fourth issue.

As Applied Constitutional ClaimsIn her fifth and sixth issues, appellant contends sections of the Family Code were unconstitutionally applied to her. Appellant raises these claims for the first time on appeal. As-applied constitutional challenges can not be raised for the first time on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Accordingly, appellant has not preserved these issues for our review. Tex. R. App. P. 33.1; In re B.M.R., 84 S.W.3d at 817. We overrule appellant’s fifth and sixth issues.

Conclusion

          We affirm the judgment.

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justice Nuchia.