in the Interest of K.R.G., Jr., a Child ( 2016 )

Opinion filed July 20, 2016
In The
Eleventh Court of Appeals
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No. 11-16-00025-CV
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IN THE INTEREST OF K.R.G., JR., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 7719-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court, based upon the jury’s
verdict, terminated the parental rights of the mother and the father of K.R.G., Jr.
Both parents timely filed a notice of appeal. On appeal, the mother presents five
issues in which she challenges the legal and factual sufficiency of the evidence to
support termination and one issue in which she complains of the trial court’s failure
to exclude the testimony of an expert witness who was not properly disclosed prior
to trial. The father presents four issues in which he challenges the legal and factual
sufficiency of the evidence. We affirm.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015). To determine if
the evidence is legally sufficient in a parental termination case, we review all of the
evidence in the light most favorable to the finding and determine whether a rational
trier of fact could have formed a firm belief or conviction that its finding was true.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is
factually sufficient, we give due deference to the finding and determine whether, on
the entire record, a factfinder could reasonably form a firm belief or conviction about
the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002). To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001(b).
After being instructed in accordance with Section 161.001(b), the jury
answered two questions posed in the trial court’s charge to the jury; the jury
determined that the parental rights of both parents should be terminated. The trial
court found that the mother and the father had committed four of the acts listed in
Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found that each parent had knowingly placed or
knowingly allowed the child to remain in conditions or surroundings that endangered
the physical or emotional well-being of the child, that each parent had engaged in
conduct or knowingly placed the child with persons who engaged in conduct that
endangered the physical or emotional well-being of the child, that each parent had
constructively abandoned the child, and that each parent had failed to comply with
the provisions of a court order that specifically established the actions necessary for
the parent to obtain the return of the child, who had been in the managing
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conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of the child’s removal from the parent for abuse or
neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of the parents’ parental rights would be in the best interest of the child.
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 that 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. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Analysis
The record shows that the Department first became involved with the child in
this case in January 2014 when the Department received an intake report for
neglectful supervision that related to the mother’s drug use and mental health. The
Department began family-based safety services, but the mother did not do well in
these services. She continued to abuse methamphetamine, and she lied about where
she and the child were living. In July, the Department received another intake when
the mother and a person with whom she was staying were involved in a physical
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altercation while the child was present. That intake involved the mother’s use of
methamphetamine. The mother and the child went to a shelter, but about a month
later, the Department received another call related to the mother and the child. The
mother had no place to stay at that time. Largely due to the mother’s continued drug
use, the child was removed and placed into foster care. At the time of the removal,
the child was five years old.
After removal, the trial court ordered both parents to comply with the
Department’s service plan and notified them that full compliance was necessary for
them to obtain the return of the child. The mother did not cooperate. She failed to
obtain stable housing, maintain employment, obtain a psychological evaluation, or
complete counseling. She also continued to abuse methamphetamine and other
drugs and was arrested for and convicted of theft while the termination proceeding
was pending.
The father was incarcerated during the Department’s involvement in this case.
He had been convicted of the offense of possession of cocaine with the intent to
deliver and had been incarcerated for that offense since the child was two months
old. He remained incarcerated at the time of trial. The father failed to complete the
services that were available to him in prison.
The evidence at trial showed that the parents admittedly did not complete the
court-ordered services. In her fourth issue, the mother argues that, even though she
failed to fully comply with the trial court’s order, the Department failed to present
clear and convincing evidence to support the trial court’s finding under
Section 161.001(b)(1)(O). The mother asserts that the finding cannot be upheld
because she “was continually working on various aspects of the plan.” We note that
the statute does not provide a means for evaluating partial or substantial compliance
with a plan. In re S.Y., 435 S.W.3d 923, 928 (Tex. App.—Dallas 2014, no pet.).
Nor does the statute “make a provision for excuses” for a parent’s failure to comply
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with the court-ordered services. In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland
2009, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006,
pet. denied)). Although the mother did comply with some portions of the trial court’s
order, the evidence shows, among other things, that she continued to abuse drugs
and failed to maintain stable housing. Thus, there was clear and convincing evidence
that the mother failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the return of K.R.G., Jr.
In his third issue on appeal, the father argues that the trial court’s finding under
subsection (O) cannot be upheld because the Department failed to prove by clear and
convincing evidence that the child was removed due to abuse or neglect on his part.
We disagree. The parent who fails to comply with a court order as required by
subsection (O) need not be the same parent whose abuse or neglect triggered the
child’s removal. In re D.R.J., 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013,
no pet.). To comply with subsection (O), the Department need not prove actual
abuse or neglect of the child. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The
court in E.C.R. held that “abuse or neglect” as used in subsection (O) “necessarily
includes the risks or threats of the environment in which the child is placed” and,
thus, “includes the harm suffered or the danger faced by other children under the
parent’s care.” Id. Based upon the supreme court’s interpretation of the words
“abuse or neglect” as used in subsection (O), we hold that the child was removed for
“abuse or neglect.” See id. Thus, both parents were required to comply with the
provisions of the trial court’s order and the family service plan, which specifically
established the actions necessary for the parents to obtain the return of the child. See
id.; In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).
The record contains clear and convincing evidence that both parents failed to
comply with the provisions of a court order that specifically established the actions
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necessary for them to obtain the return of the child, who had been in the
conservatorship of the Department for more than nine months and had been removed
due to abuse or neglect. Clear and convincing evidence also reflected that the child
had been removed due to abuse or neglect, or the risk thereof, and that he had been
in the care of the Department for well over nine months. Consequently, we hold that
the evidence is legally and factually sufficient to support the trial court’s finding as
to each parent under Section 161.001(b)(1)(O).
We overrule the legal and factual sufficiency complaints presented by the
mother in her fourth issue and the father in his third issue. Because we find the
evidence sufficient to support termination of the parents’ parental rights under
subsection (O), we need not reach the issues in which they challenge the sufficiency
of the evidence to support termination under subsections (D), (E), or (N).1 See
TEX. R. APP. P. 47.1. A finding that a parent committed any one of the acts under
Section 161.001(b)(1)(A)–(T) is sufficient to support termination as long as
termination is in the child’s best interest.
In the mother’s fifth issue, she challenges the trial court’s finding that
termination of her parental rights would be in the best interest of the child. The
record shows that, when given the opportunity, the mother regularly attended her
scheduled visitations with the child. The mother loved the child, and they had a
bond.
The record also reflects that the child had lived in a stable home with the same
foster parents for almost fifteen months prior to trial. By all accounts, the child had
developed a strong bond with his foster family and was doing phenomenally well in
that home. The child was part of the foster family, thought of them as his family,
and wanted to be called by their last name and to stay with them.
1
Thus, we need not address the mother’s first, second, and third issues or the father’s first, second,
and fourth issues.
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The mother did not dispute that the foster parents were an appropriate
placement for the child, but the mother loved the child, had a bond with him, and
did not want her rights terminated because of her bad choices. The Department’s
goal for the child was for him to remain in the home with his foster parents and to
be adopted by them. The foster parents have expressed a desire to adopt the child.
The Department’s conservatorship supervisor testified that termination of both
parents’ rights would be in the child’s best interest, and the child’s attorney and
guardian ad litem argued similarly during her closing argument. Other testimony
indicated that it would not be in a child’s best interest to be in the care of a parent
with a methamphetamine addiction.
The mother had a long-term drug addiction, failed to stay for more than a few
days in inpatient treatment, and consistently returned to methamphetamine use while
this case was pending. The testimony at trial indicated that the mother did not have
stable housing or a stable source of income and that she was not able to provide for
the child’s needs. We note additionally that the trier of fact is the sole judge of the
credibility of the witnesses at trial and that we are not at liberty to disturb the
determinations of the trier of fact as long as those determinations are not
unreasonable. J.P.B., 180 S.W.3d at 573.
Based upon the Holley factors and the evidence in the record, we cannot hold
that the best interest findings are not supported by clear and convincing evidence.
See Holley, 544 S.W.2d at 371–72. The trier of fact could reasonably have formed
a firm belief or conviction that it would be in the child’s best interest for the mother’s
parental rights to be terminated. We hold that the evidence is both legally and
factually sufficient to support the best interest finding. The mother’s fifth issue is
overruled.
In her final issue, the mother asserts that the testimony of two expert witnesses
should have been excluded because the Department failed to properly disclose all of
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the information required by TEX. R. CIV. P. 194.2(f). Discovery that is not timely
disclosed and witnesses that are not timely identified are inadmissible as evidence
unless the trial court finds (1) that there was good cause for the failure to timely
make, amend, or supplement the discovery response or (2) that the failure would not
unfairly surprise or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6(a).
The record indicates that, with respect to these two expert witnesses, the Department
did not fully comply with Rule 194.2(f). At a hearing prior to trial, the trial court
ruled that the experts’ testimony was admissible with respect to the mother,
overruled her objection, and found that the testimony of the experts would not
constitute unfair surprise. The record supports the trial court’s finding. In response
to the trial court’s questions at the pretrial hearing, the mother’s attorney stated that
she was not surprised by either witness and agreed that their information had been
provided to her. Consequently, we cannot hold that the trial court erred by failing
to exclude the experts. See In re T.K.D-H., 439 S.W.3d 473, 478–79 (Tex. App.—
San Antonio 2014, no pet.); Good v. Baker, 339 S.W.3d 260, 271 (Tex. App.—
Texarkana 2011, pet. denied); see also TEX. R. CIV. P. 193.6(a)(2). We overrule the
mother’s sixth issue.
This Court’s Ruling
We affirm the trial court’s order of termination.
JOHN M. BAILEY
July 20, 2016 JUSTICE
Panel consists of: Wright, C.J.,
Bailey, J., and Countiss.2
Willson, J., not participating.
2
Richard N. Countiss, Retired Justice, Court of Appeals, 7th District of Texas at Amarillo, sitting
by assignment.
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