in the Interest of S.R., J.R., and B.R, Children ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-454-CV
IN THE INTEREST OF S.R.,
J.R., AND B.R.,
CHILDREN
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Heather R. appeals the trial court’s order terminating her
parental rights to her children, S.R. (Sarah), J.R. (Josh), and B.R.(Becca). 2 In
two points, appellant argues that the evidence is legally and factually
insufficient to support the trial court’s best interest finding. We affirm.
1
… See T EX. R. A PP. P. 47.4.
2
… We are using fictitious names in accordance with proposed T EX. R.
A PP. P. 9.8, 71 T EX. B.J. 287–88 (Tex. 2008, scheduled to take effect Sept.
1, 2008).
Background Facts
On March 17, 2006, Kevin Campbell, an investigator with the Texas
Department of Family and Protective Services (TDFPS) in Wise County, received
an allegation of neglectful supervision, physical abuse, and sexual abuse of
appellant’s children, ten-year-old Sarah, six-year-old Josh, and five-year-old
Becca. 3 Campbell also received information that the house was roach-infested
and that the children were living in deplorable conditions. Campbell visited
appellant’s home, which was a trailer located on Lot A in Newark, Texas, and
observed roaches crawling on the floor, inside containers in the kitchen, in the
frying pan, in the refrigerator’s egg tray, in the bedding, and on the walls.
Campbell also noticed that an extension cord ran from the trailer house to
another trailer house to provide electricity and that there was only enough
electricity for the television. The trailer was lit by candles in the living room.
Additionally, the water pressure was nonexistent, and the hot water heater was
not functioning. The toilets were unsanitary and could not be flushed because
of the lack of water. Unwashed dishes were stacked in the kitchen, and
Campbell could tell that they had been sitting for a long time. He also observed
3
… Appellant had another child, twelve-year-old T.J., who lived with his
father, Thomas R., and then with appellant’s sister, Crystal Mendoza.
Appellant had previously signed over guardianship of T.J. to Mendoza.
2
trash piled up in the kitchen. The floor contained numerous holes, which were
covered with large road signs.
TDFPS removed Sarah, Josh, and Becca and told appellant that she
needed to clean her home so that it would be a safe environment for her
children. Appellant complied, and TDFPS returned her children around August
2006. However, a few weeks later in September 2006, TDFPS removed the
children for a second time after appellant left them with relatives, Tiffany Taylor
and Amber Spivey, because TDFPS believed that appellant had abandoned them
and because they were living in similar, unsafe conditions as before. While in
Taylor and Spivey’s care, the children lived in a ten-by-ten shed with one
couch, no running water, and a nonfunctional toilet; there was also a strong
urine smell. Taylor and Spivey told TDFPS caseworker Stephanie Flavin that
appellant was not helping them financially.
Flavin, who received appellant’s case in mid-September 2006, testified
that the children were placed in foster care until November and then went to
live with appellant’s brother and sister-in-law, Heath and Sheila. Sheila testified
that appellant steadily visited the children for a while but then her visits became
more sporadic. She stated that the interaction between appellant and her
children was always positive, and the kids were happy to see her. Sheila
thought that the visits were appropriate and that appellant seemed attentive
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and affectionate. In fact, appellant called almost every night. The children
were with Heath and Sheila until April 2007 when Sheila had to return the
children to TDFPS because they could not financially take care of them. Sheila
testified that she was willing to let the children live with her and be their
guardian, but she could not accept full financial responsibility for them. Sheila
also testified that she and her husband could not afford medical and child care
for their own four children plus three more. Sheila stated that appellant did not
financially assist Heath and Sheila although she did provide things such as
clothing and toiletries as needed. Sheila testified that she did not believe it was
in the children’s best interest to have appellant’s parental rights terminated.
After Sheila returned the children, TDFPS placed them in foster care.
TDFPS gave appellant a service plan, which included two types of
parenting classes, individual counseling, a psychological evaluation, and drug
testing. TDFPS required appellant to attend a parenting class on nutrition and
cleanliness and a parenting class at the Family Guidance Center; appellant
attended only the parenting class at the Family Guidance Center. She claimed
she could not attend the nutrition and cleanliness class because of her work
schedule. Additionally, appellant did not complete counseling because of her
work schedule although Flavin set up counseling services for appellant in Fort
Worth. Flavin made appointments with appellant to visit her residence in
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Newark, which was a different trailer on the same property located on Lot B,
but appellant usually canceled because of her work schedule. Each time Flavin
visited the residence, appellant was not there. In November 2006, appellant
informed Flavin that she was not living on Lot B at the Newark address but
instead was living with various friends. The last time Flavin visited appellant’s
residence, the trash pile which TDFPS requested that appellant remove had
gained in height; there were abandoned vehicles, car parts, an engine, a boat,
an old mattress, and other items such as tin in the yard that could injure or cut
the children.
TDFPS also required appellant to turn in documentation regarding her
employment; however, Flavin testified that appellant never provided any pay
stubs or paperwork. Additionally, TDFPS also required appellant to be randomly
drug tested, and appellant submitted to two tests, which were negative.
However, appellant did not show up for any more drug tests. In addition to
completing one of the required parenting classes, appellant completed a
psychological evaluation in January 2007. TDFPS set up visitation for appellant
on Sundays, but she would often show up late or leave early. Flavin testified
that appellant’s interaction with the children during visitation was minimal.
Mary Graves, a therapist with Catholic Charities, had been seeing the
children since April 2007 when they were referred for adjustment issues.
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Graves testified that all of the children said their home was not in good shape.
Sarah was left alone with the little ones, which scared her, and she was
terrified of returning to that environment. Graves testified that Sarah had self-
esteem issues because she was in a lower grade as a result of missing so much
school. Graves also said Sarah had a habit of parenting the little ones. Sarah
craved structure and security, and she did not want the responsibility of caring
for her younger siblings. However, Sarah was progressing well and happier
with herself.
Graves testified that when she first saw Josh, he was very shy, rarely
smiled, and sad. He had serious sleep problems and was anxious and scared
a lot. He was also abrasive towards his sister Becca. Additionally, Josh would
have meltdowns and become “unglued” by kicking, hitting, and biting; he would
also hold and smear feces. Graves had talked to him about his anger and how
to manage it so that he did not get in trouble or hurt himself or others. She
testified that his meltdowns could sometimes be avoided.
Graves testified that Becca was a “cutie” and wonderful to talk to;
however, Becca whined and tried to get her own way. Graves also said that
Becca tried to get Josh in trouble. Graves stated that Becca was oppositional
and defiant; she did not want to obey and threw things while kicking and
screaming. Becca also held and smeared feces. Additionally, Becca did not like
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to sleep. Becca had also acted out sexually; for example, she exposed herself
to her brothers and other boys. Graves testified that Becca had learned to
accept “no” and worked on understanding boundaries. Graves had also talked
with Becca about body safety. Graves testified that the type of living
conditions the children experienced amounted to abusive and neglectful
conduct, and she believed that it was not in their best interest to return to
appellant.
At trial, appellant testified that she did not abandon her children but that
she worked late and left them with her family because she did not want to
disrupt their sleeping routine and school schedule. Appellant testified that she
left her children with her family during the week but would pick them up on the
weekends. She never intended her children to stay there on a permanent basis.
She also testified that she provided for her children by giving Taylor and Spivey
diapers, wipes, food, clothing, gas money, or whatever they needed. After
TDFPS removed her children for the second time, appellant stated that she
attended visits although she missed a couple of times because of work.
Appellant testified that she was bonded with her children.
Additionally, appellant testified that she participated in drug tests and that
she never tested positive. Appellant stated that she had not complied with the
counseling requirement because of paperwork issues. She testified that she
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completed parenting classes. Appellant also testified that she worked at
Popeye’s, but she did not provide Flavin with any check stubs.
Appellant testified that she was willing to leave her current residence if
her children could live with her sister Crystal Mendoza. She and Mendoza lived
on the same property, but in different trailers. She and Mendoza switched
trailers after appellant’s children were removed so that, at the time of trial,
Mendoza lived in the trailer that TDFPS determined was an unsafe environment
at the time of removal. Appellant testified that if she got her children back,
they would stay with Mendoza, who had a clean home with ample room. The
trailer had been painted, had new carpet installed, and had been sprayed for
bugs, and the holes in the floor had been repaired.
Mendoza also testified that she and her husband had renovated the trailer.
The trailer had electricity and running water with working toilets. She also
testified that she was willing to let appellant and her children live with them for
as long as was necessary. Although there would be seven children and three
adults, she also stated that there was adequate space.
Adrienne Shabazz, a licensed social worker who did kinship studies for
TDFPS, testified that the property on which appellant lived contained two or
three trailers. Shabazz completed a home study on Mendoza because she
offered to take Sarah, Josh, and Becca. Shabazz testified that Mendoza’s
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trailer, which was the trailer the children had been living in when they were
removed, was very small and sparsely furnished. The trailer had three
bedrooms for seven children and three adults. Shabazz was concerned because
appellant lived on the property, and thus she was in close proximity to the
children. Shabazz was also concerned because while she was there, one of
Mendoza’s children was out of control; Mendoza also told Shabazz that she had
never taken one of her children to the doctor. Although the home was tidy,
Shabazz saw roaches crawling around, but she did not see any holes in the
floor or trash piled up. Although nothing about the home was “glaringly
dangerous,” Shabazz believed the trailer was not an appropriate home for the
children because it was too small, appellant resided too close by, and Mendoza
could not control her own children.
In addition, appellant testified that her mistakes had traumatized her
children but that she wanted to make up for her wrong decisions. Appellant
said that she regretted her mistakes and that she had changed her way of
thinking. Appellant stated that she attended church and had the support of
family and friends. Appellant also testified that she had not used drugs, had
never been convicted of a crime, and had never abused her children.
After a bench trial on December 6, 2007, the trial court determined that
appellant (1) knowingly placed or knowingly allowed her children to remain in
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conditions which endangered their physical and emotional well-being, (2) that
she failed to comply with the provisions of the court order which were
necessary for her to obtain the return of her children, and (3) that termination
was in their best interest. 4 [CR 19] See T EX. F AM. C ODE A NN. §§ 161.001(1)(D),
(O), (2) (Vernon Supp. 2007). Appellant timely filed this appeal.
Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59,
102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
While parental rights are of constitutional magnitude, they are not absolute.
Just as it is imperative for courts to recognize the constitutional underpinnings
of the parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right. In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the State seeks not just
to limit parental rights but to end them permanently—to divest the parent and
child of all legal rights, privileges, duties, and powers normally existing between
them, except for the child’s right to inherit. T EX. F AM. C ODE A NN. § 161.206(b)
4
… At trial, Thomas executed an affidavit of relinquishment of his parental
rights to Sarah, Josh, and Becca. He did not appeal the trial court’s order.
10
(Vernon Supp. 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We
strictly scrutinize termination proceedings and strictly construe involuntary
termination statutes in favor of the parent. Holick, 685 S.W.2d at 20–21; In
re E.M.N., 221 S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). 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. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls
between the preponderance standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as the “measure or degree of proof that will
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produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
A. Legal Sufficiency
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
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appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
B. Factual Sufficiency
In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the termination of the parent’s parental rights would
be in the best interest of the child. C.H., 89 S.W.3d at 28. If, in light of the
entire record, the disputed evidence that a reasonable fact-finder could not have
credited in favor of the finding is so significant that a fact-finder could not
reasonably have formed a firm belief or conviction in the truth of its finding,
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. If we
reverse on factual sufficiency grounds, then we must detail in our opinion why
we have concluded that a reasonable fact-finder could not have credited
disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266-67.
Applicable Law
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)
(Vernon 2002). There is also a strong presumption that keeping a child with
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a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and
in the future;
(3) the emotional and physical danger to the child now and
in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to
promote the best interest of the child;
(6) the plans for the child by these individuals or by the
agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
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termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Analysis
A. Desires of the children
At the time of trial, Sarah was ten years old, Josh was six years old, and
Becca was five years old. Therapist Graves testified that Sarah had taken on
the parenting role to her younger brother and sister because she had been left
alone with them. Graves also testified that Sarah was terrified that if they went
back with appellant, she would be left alone with her siblings again. Sarah’s
aunt Sheila, however, testified that Sarah wanted things back the way they
were—back to normal. Sheila also stated that Sarah wanted her mother and
father. Becca would also tell Sheila, “I want to go home . . . [w]hen do I get
to go home?” Sheila testified that the children loved appellant and that they
were bonded.
B. The emotional and physical needs of the children now and in the future,
and the emotional and physical danger to the children now and in the future
The evidence shows that appellant’s home was an unsafe, unhealthy
environment and that appellant had frequent changes of residences and multiple
jobs. Appellant admitted that her home on Lot A in Newark was unsafe
15
because it was infested with cockroaches and dirty; she stated that her
children, at that time, were living in an endangering situation. Appellant also
admitted that leaving her children with Taylor and Spivey was inappropriate
because the space was too small. Appellant testified that, at the time of trial,
she did not have stable housing, but she also testified that she lived on Lot B
after switching trailers with her sister. Appellant stated that she had been
living there about a month, but had not unpacked and that she often slept at
friends’ homes. Flavin testified that the exterior of appellant’s current residence
on Lot B, which Flavin was never able to inspect because appellant did not keep
any of her appointments, had worsened in condition with many objects
scattered in the yard that would be dangerous to the children.
Appellant testified that, at the time of trial, she had been working at
Popeye’s for three to four months. Before that she was employed at Ryder,
D&B Entertainment, and Michael’s. However, the only verification Flavin
received regarding appellant’s employment was from Michael’s. The evidence
also shows that appellant never provided financial support for her children while
they were in foster care or living with relatives. However, appellant did provide
clothing or other supplies that the children needed.
The record reflects that appellant’s sister, Mendoza, who lived in
appellant’s old home on Lot A, had renovated the trailer and offered to allow
16
appellant and the children to live with her family. However, TDFPS believed
that Mendoza’s home, although not “glaringly dangerous,” would not be
suitable for an additional three children and another adult. TDFPS did not
believe that seven children and three adults could adequately live in a three
bedroom trailer.
The evidence also demonstrates that Sarah, Josh, and Becca had
emotional problems. Sarah had self-esteem issues and feared returning to the
same living conditions where she would have to parent her siblings. Josh had
meltdowns, which included kicking, hitting, biting, and smearing feces. Becca
also had tantrums and smeared feces. Becca told Graves that she wanted to
provoke an adult into biting her because that would make her feel better.
Becca had also sexually acted out, and therapy reports indicated that the
children had made outcry statements to family members although TDFPS had
been unable to pinpoint a specific person that may have been abusive. Graves
also testified that Sarah had witnessed a lot of sexual behavior.
C. The parental abilities of the individuals seeking custody, and the programs
available to assist these individuals to promote the best interest of the children
The evidence demonstrates that appellant did not sufficiently work her
service plan. Appellant attended one of the two required parenting classes,
completed the psychological evaluation, and submitted to two drug tests.
17
However, appellant did not attend the parenting class on nutrition and
cleanliness, did not complete counseling, did not meet with Flavin for a home
inspection, did not provide employment documentation, and did not show up
for additional drug tests. Appellant told Flavin that she was unable to
participate in or complete many of her services because of her work schedule.
However, appellant never provided Flavin with documentation to verify her
reasons for not participating in many of her services.
Flavin testified that appellant sporadically visited the children, and when
she did visit, interaction with her children was minimal. For example, appellant
would ask Sarah to take the younger children to the restroom, and appellant did
not bring food during visitation as requested by TDFPS. CASA worker Michele
Duncan testified that appellant did not play with the children although she did
ask how they were doing.
Although appellant completed some of her services, Flavin and Duncan
recommended that appellant’s parental rights be terminated because of
appellant’s lack of progress, missed opportunities to visit with her children,
minimal interaction with her children at visitations, and her failure to complete
all of the requested services. Furthermore, the children needed a permanent
home with stability and security.
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D. The plans for the children by these individuals or by the agency seeking
custody, and the stability of the home or proposed placement
TDFPS offered no evidence regarding future plans for the children.
Appellant sought to have the children placed with her sister Mendoza,
who lived in appellant’s old trailer, which had been renovated. TDFPS had
concern over appellant’s close proximity to the children because she lived in
another trailer on the property. However, appellant testified that she would
move off the property if that allowed the children to be placed with Mendoza.
E. The acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one, and any excuse for the acts or
omissions of appellant
As for the parent-child relationship, there is evidence that Sarah had taken
on the parenting role to her two younger siblings.
In sum, the record demonstrates that although appellant participated in
some of her services, appellant’s failure to complete her services and maintain
appropriate housing, and her sporadic visits with her children, all demonstrate
that it was in Sarah’s, Josh’s, and Becca’s best interests that appellant’s
parental rights be terminated. See T EX. F AM. C ODE A NN. § 161.001(2).
Viewing all the evidence in the light most favorable to the judgment, we
hold that the evidence is legally sufficient to support the trial court’s finding
that termination of appellant’s parental rights was in the children’s best interest.
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See id. Viewing the same evidence in a neutral light, we hold that it is also
factually sufficient to support the trial court’s findings that termination of
appellant’s parental rights was in the children’s best interest. See id. We
overrule appellant’s two points.
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgment terminating appellant’s parental rights.
TERRIE LIVINGSTON
JUSTICE
PANEL F: CAYCE, C.J.; LIVINGSTON, and DAUPHINOT, JJ.
DELIVERED: June 5, 2008
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