in the Interest of E.G., a Child ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-087-CV
IN THE INTEREST OF E.G., A CHILD
------------
FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Introduction
In one issue, Appellant Mother appeals the termination of her parental
rights by challenging the sufficiency of the evidence to support the trial court’s
best interest finding. We affirm.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural History
Mother was fourteen years old when she gave birth to E.G. in September
2006. A year later, Child Protective Services (“CPS”) removed E.G. from her
care and the Department of Family and Protective Services (“DFPS”) filed a
petition to terminate her parental rights.
A jury rendered a verdict of termination in the trial held in February 2009
before an associate judge, and Mother sought a de novo hearing in the county
court at law. See Tex. Fam. Code Ann. § 201.015 (Vernon Supp. 2009). The
county court at law took judicial notice of the entire jury trial record and, after
hearing additional evidence, issued the order terminating Mother’s parental
rights to E.G. Like the jury in the original trial, the county court found that
Mother had constructively abandoned E.G., that Mother had failed to comply
with the provisions of a court order that specifically established the actions
necessary for her to obtain E.G.’s return to her, and that termination of
Mother’s parental rights to E.G. would be in E.G.’s best interest. See id.
§ 161.001(1)(N), (O), (2) (Vernon Supp. 2009). This appeal followed.
III. Legal and Factual Sufficiency
In her sole issue, Mother argues that the evidence was insufficient to
show that it is in E.G.’s best interest to terminate Mother’s parental rights.
2
A. Standards 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 erase 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. Tex.
Fam. Code Ann. § 161.206(b) (Vernon 2008); 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 M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth
2008, 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
3
listed 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; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Termination decisions must be supported by
clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a).
Evidence is clear and convincing if it “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
established.” Id. § 101.007 (Vernon 2002). Due process demands this
heightened standard because termination results in permanent, irrevocable
changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting
standards for termination and modification).
With regard to the best interest finding challenged here, when we review
the evidence for legal sufficiency, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction that the
best interest ground was proven. See 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 factfinder
resolved any disputed facts in favor of its finding if a reasonable factfinder
could have done so. Id. We must also disregard all evidence that a reasonable
factfinder could have disbelieved. Id. We must consider, however, undisputed
4
evidence even if it is contrary to the finding. Id. That is, we must consider
evidence favorable to termination if a reasonable factfinder could, and disregard
contrary evidence unless a reasonable factfinder 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 factfinder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as
they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the verdict 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 factfinder could reasonably form a firm
conviction or belief that termination of the parent-child relationship 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 factfinder could not have
credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding,
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
5
B. Best Interest of the Child
1. Law
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However,
prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)
(Vernon 2002). Among others, the following factors should be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment: the child’s age and physical and mental vulnerabilities; whether
there is a history of substance abuse by the child’s family or others w0ho have
access to the child’s home; the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; the willingness and ability
of the child’s family to effect positive environmental and personal changes
within a reasonable period of time; whether the child’s family demonstrates
adequate parenting skills; and whether an adequate social support system
consisting of an extended family and friends is available to the child.
Id.§ 263.307(b); R.R., 209 S.W.3d at 116.
Other, nonexclusive factors that the trier of fact in a termination case
may use in determining the best interest of the child include the desires of the
6
child; the emotional and physical needs of the child now and in the future; the
emotional and physical danger to the child now and in the future; the parental
abilities of the individuals seeking custody; the programs available to assist
these individuals to promote the best interest of the child; the plans for the
child by these individuals or by the agency seeking custody; the stability of the
home or proposed placement; 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 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
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.
2. Analysis
Mother asserts that she is a good mother and was doing a good job of
taking care of E.G. when E.G. was removed from her, that E.G. was never
abused or neglected, that she provided E.G. with a safe environment, and that
7
she completed her court-ordered services and maintained significant and
meaningful contact with E.G. after the removal.
However, Mother’s own testimony during the jury trial and at the trial de
novo contradicts some of her assertions: she testified at the jury trial that
before E.G.’s removal, she would smoke marijuana and then interact with E.G.
while still feeling the effects of the marijuana, although “not very many” times.
She also agreed that she visited E.G. only forty-eight times out of a possible
142 visits after E.G.’s removal, and that she had been withdrawn from school
for excessive absences.2 Both the visits and school attendance were service
plan requirements.3 At the trial de novo, Mother acknowledged that she did not
do everything that she needed to do to have E.G. returned to her.
And although Mother was supposed to stay away from drugs as part of
her service plan, her caseworker testified that Mother admitted that she used
2
… E.G. was removed from Mother when Mother left her with someone
else so that Mother could attend truancy court. Mother testified that she
missed some of the visits because of her work schedule. The CPS caseworker
testified that Mother’s visitation schedule was modified four or five times to
accommodate Mother’s work schedule.
3
… Mother completed the eight parenting classes initially required in her
service plan, and she completed a drug and alcohol assessment. She
completed half of her required counseling. Mother did not complete the
additional eight parenting classes that CPS set up at the recommendation of the
parenting class provider and that the court ordered, nor did she complete the
activities the court ordered that she could do in lieu of the additional classes.
8
marijuana and that Mother tested positive for marijuana on the drug test she
took a few weeks before the jury trial.4 Mother admitted to this at the trial de
novo, stating that it had been over a month since the last time she had smoked
“pot” and that it was before the jury trial. Furthermore, with regard to E.G.’s
condition at removal, the CPS caseworker testified that E.G. had been wearing
a dirty diaper put on backwards, had a diaper rash, was dirty, and had a bad
odor, and that “her clothes were so small that . . . her toes were curled up in
her shoes.”
Mother argues that she and E.G. are bonded to one another and that the
jury just determined that the foster parents were better for E.G. than “an
inconsistently employed 15-year old mother with unstable housing who is a
good parent,” but the record does not entirely support this argument, and the
county court had other factors to consider besides whether E.G. and Mother
were bonded that weighed in favor of termination. See Tex. Fam. Code Ann.
§ 263.307(b); R.R., 209 S.W.3d at 116; see also Holley, 544 S.W.2d at
371–72. Mother’s testimony about her bond with E.G. was undisputed.
4
… The CPS caseworker testified that in discussing one of Mother’s
sisters, who also had an open CPS case, Mother stated that “at least [Mother]
only did marijuana,” and not the particular drug her sister used.
9
Mother was fifteen years old when E.G. was removed, but she was
almost seventeen years old at the jury trial, and she was seventeen at the trial
de novo. It is undisputed that she was inconsistently employed: she testified
that she quit her job of five months at Sonic around a month before trial and
that she worked for Church’s Chicken for two months before that. She
testified at the jury trial that she did not “do [anything] during the days” other
than help her grandmother with cooking and cleaning.5 Mother was still
unemployed at the time of the trial de novo, although she testified that she had
a job interview lined up for the following week at a fast food restaurant.
It is also undisputed that Mother had unstable housing: she testified at
the jury triazl that she had lived with her legally disabled grandmother for
almost five months (in three locations), with one of her sisters for the three
months before that, and with a friend of the family at the time of E.G.’s
removal. At the trial de novo a little over a month later, Mother testified that
5
… At the jury trial, Mother testified that, even though she had not taken
the GED exam, she planned to start school at Vernon College to study to
become a certified LVN nurse’s aide and that she would be working there,
making $10.50 an hour. She admitted that she did not know how much she
would have to pay for day care, that she was not yet enrolled in the nurse’s
aide program, and that she did not know what an LVN was. Mother had not
enrolled in the program by the time of the trial de novo over a month later.
10
she had moved again and was living with a family friend whose last name she
did not know “right offhand,” but who she had known for around three years.
The county court could have determined, based on the jury trial record
and Mother’s subsequent testimony at the trial de novo, that termination of
Mother’s parental rights was in E.G.’s best interest because, in addition to the
testimony discussed above, Mother testified that her plans for E.G. were “[t]o
take care of her like I [was] before y’all took her.” 6 She testified that she did
not take E.G. for her immunizations because,
[w]hen [my sister] took her son to get his immunizations, the
way—the way they done him and the way they made him feel, he
was in—I mean, he couldn’t do nothing. He couldn’t walk because
he was so sore, his body. I wasn’t going to make my baby have
them shots.7
Mother also testified that her mother had problems and was not very
supportive,8 that she had no contact with any father figure, and that one of her
sisters also had an open CPS case. E.G. had been in foster care for fifteen
months by the time of the jury trial.
6
… Mother stated that she did not think that the foster parents “can do
anything different than I can do. They’re getting paid for my baby.”
7
… Mother testified that this concern had nothing to do with recent news
about thymerosol, a preservative in some vaccines, and its potential connection
to autism.
8
… On the same day that E.G. was removed from Mother, Mother was
removed from her own mother and placed in a teen shelter.
11
Additionally, Mother’s CPS caseworker testified that appointing Mother
E.G.’s sole managing conservator would significantly impair E.G.’s physical or
emotional development based at least in part on Mother’s family’s extensive
CPS history and drug use; 9 that E.G.’s foster parents loved E.G., had a stable
home and employment, and were interested in adopting her; and that E.G.’s
adoption by her foster parents would be in E.G.’s best interest.
E.G.’s court-appointed special advocate testified that E.G. was flourishing
with her foster parents and that E.G. called them “Mommy and Daddy,”
although she also called Mother “Mom” at visitations. She testified that she
was unsuccessful in contacting Mother at any of the five addresses she had for
her but was successful in meeting with her at truancy court. She
recommended termination of Mother’s parental rights, and she testified that the
foster parents were in a better position to take care of E.G.’s emotional and
physical needs and had better parenting abilities; that if E.G. were adopted by
the foster parents, E.G. would receive tuition at a four-year college and health
care until age eighteen under the programs available to assist adopting foster
parents; and that it was not in E.G.’s best interest to be returned to Mother.
9
… On cross-examination, the CPS caseworker admitted that she could
not think of any emotional harm that could come to E.G. from Mother’s failure
to attend school or from her constant housing changes.
12
Viewing the evidence in the light most favorable to the finding and
judgment, we conclude that the county court could have reasonably formed a
firm belief or conviction that the best interest ground was proven such that the
evidence is legally sufficient to support that finding. See J.P.B., 180 S.W.3d
at 573. Furthermore, in light of the entire record, we conclude that the county
court could have reasonably formed that same firm conviction or belief, such
that the evidence is factually sufficient to support the best interest finding. See
C.H., 89 S.W.3d at 28. Therefore, we overrule Mother’s sole issue.
IV. Conclusion
Having overruled Mother’s sole issue, we affirm the county court’s
judgment.
PER CURIAM
PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.
DELIVERED: October 15, 2009
13