in the Interest of A.M., A.M., & C.M., Children ( 2016 )

NO. 12-16-00185-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 258TH
A.M., A.M., & C.M., § JUDICIAL DISTRICT COURT
CHILDREN § TRINITY COUNTY, TEXAS
MEMORANDUM OPINION
J.M. appeals the termination of his parental rights. In one issue, he challenges the trial
court’s termination order. We affirm.
BACKGROUND
J.M. and M.M. are the parents of A.M., A.M.1, and C.M.1 On August 5, 2015, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of the children, for conservatorship, and for termination of J.M.’s and M.M.’s parental
rights. The Department was appointed temporary managing conservator of the children, and the
parents were allowed limited access to, and possession of, the children.
At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that J.M. had engaged in one or more of the acts or omissions necessary to support
termination of his parental rights under subsections (D) and (E) of Texas Family Code Section
161.001(b)(1). The trial court also found that termination of the parent-child relationship
between J.M. and the children was in the children’s best interest. 2 Based on these findings, the
1
The oldest two children have the same initials. Therefore, we will refer to the oldest child as A.M. and to
the younger child as A.M.1.
2
A presumed father of the children, T.P., signed an affidavit of voluntary relinquishment of parental rights
on April 20, 2016.
trial court ordered that the parent-child relationship between J.M. and the children be terminated.
This appeal followed.
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action “permanently sunders” the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re
J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have
engaged in any one of the acts or omissions itemized in the second subsection of the statute.
TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep’t of Protective &
Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39
S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(b)(2) (West Supp. 2016); In re J.M.T., 39 S.W.3d at 237. Both elements must
be established by clear and convincing evidence, and proof of one element does not alleviate the
petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at
351; In re J.M.T., 39 S.W.3d at 237.
The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means “the measure or 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 established.” TEX. FAM. CODE ANN. § 101.007 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
STANDARD OF REVIEW
When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
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S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).
BEST INTEREST OF THE CHILDREN
In his sole issue on appeal, J.M. challenges the legal and factual sufficiency of the
evidence to support a finding that termination of his parental rights is in the children’s best
interest. In determining the best interest of the child, we consider a number of factors, including
(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;
(6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or
omissions of the parent that may indicate 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).
The family code also provides a list of factors that we consider in conjunction with the
above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2016).
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Those statutory factors include (1) the child’s age and physical and mental vulnerabilities; (2) the
magnitude, frequency, and circumstances of the harm to the child; (3) the results of psychiatric,
psychological, or developmental evaluations of the child, the child’s parents, other family
members, or others who have access to the child’s home; (4) whether there is a history of
substance abuse by the child’s family or others who have access to the child’s home; (5) 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; (6) the
willingness and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time; (7) whether the child’s family demonstrates adequate
parenting skills; and (8) whether an adequate social support system consisting of an extended
family and friends is available to the child. See id. § 263.307(b)(1), (3), (6), (8), (10), (11), (12),
(13).
The evidence need not prove all statutory or Holley factors in order to show that
termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re
J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In other words,
the best interest of the child does not require proof of any unique set of factors nor limit proof to
any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).
Undisputed evidence of just one factor may be sufficient in a particular case to support a finding
that termination is in the child’s best interest. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex.
App.—Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will
not support such a finding. Id. Evidence supporting termination of parental rights is also
probative in determining whether termination is in the best interest of the child. See In re C.H.,
89 S.W.3d at 28-29. We apply the statutory and Holley factors below.
The Evidence
The record shows that the current investigation was the third investigation by the
Department regarding J.M.’s family. During the first investigation in 2007, one of the children
was removed from the home. The parents had problems with drug use, domestic violence, and
unsanitary home conditions. The child was eventually returned to the home. The second
investigation resulted when the Department received a report of domestic violence between the
parents. Both parents were arrested and the children were placed in foster care. The parents
completed their service plans and the children were returned to their parents.
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The third, and current, investigation began in August 2015 when A.M. was eight years
old, A.M.1 was four years old, and C.M. was three years old. Brenda Snyder, a Department
supervisor and investigator, testified that law enforcement requested her assistance after
conducting a raid on M.M.’s and J.M.’s house. Law enforcement told her that they found the
house to be in a “deplorable” condition, that drugs, including K2 or synthetic marijuana, were in
the house, and that a man was present who had been ordered not to be in the house. Snyder went
to the residence, spoke to the parents and children, and went inside the house. She said that the
children were “filthy,” had lice, and were covered in animal feces. A.M. stated that she
witnessed M.M. and J.M. fighting, saw J.M. hit M.M. in the face, and knew that drugs were in
the house. Snyder also stated that A.M.1 appeared to be behind in her speech.
Snyder described the conditions of the house as being “[v]ery unsafe” for children and a
danger to their physical and emotional wellbeing. Only the living room and kitchen had
electricity. She said the house had no running water. On the kitchen countertop, Snyder saw an
ashtray that was overflowing with tobacco and “blunts” (cigars with marijuana substituted for the
tobacco). Most of the food in the house was uncovered and roaches were “sliding” across it.
The kitchen was unsanitary with a pile of dirty dishes in the sink and roaches on the countertop.
The house smelled like dog feces, bags of garbage were lying around, mold was present
throughout the house, and there were holes in the ceiling of one of the rooms. Snyder stated that
she had to walk over clothes to enter the bedrooms. The bathrooms were “bad” and the
bedrooms contained a total of two beds. One mattress had no linens and was “very filthy.”
Snyder admitted that some of the household items could have been strewn about because law
enforcement searched certain areas of the house. However, she said there was prior dirt and filth
farther into the house.
Jeffrey Dean, a Trinity Police Department officer, testified that he stayed with the
children while law enforcement searched the house. He stated that the children were “filthy,”
scratched a lot, and had feces on their clothes. He discovered an ashtray filled with cigarette
butts and marijuana “roaches,” or paraphernalia, under the couch within the children’s reach.
Dean stated that A.M. attempted to eat some ice cream from the freezer. She used her hands to
scoop and eat the ice cream which contained what Dean believed to be flies. A.M. told Dean
that the flies were “chocolate chips.” He took the ice cream away from A.M. Dean also stated
that a cat was in the house and appeared to be “barely living.” A.M. fed the cat with her hands,
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from a bucket that had a “toxic” sticker on its side and cockroaches crawling inside it. Dean
believed that the house was unsanitary and a health danger. Dean was also concerned about the
children’s psychological wellbeing. He said that A.M. described how to make a cigarette, telling
him that her parents emptied the tobacco from cigars or cigarettes, placed synthetic marijuana
inside, and smoked them. A.M. and A.M.1 told him that they went on “family trips” whenever
their parents ran out of cigarettes, or as described to him, synthetic marijuana. He and Snyder
stated that the children were not sick and did not appear to be malnourished.
J.M. explained that the house was in “pretty bad shape” because he, M.M., and the
children had been at the beach for three days and had been home approximately twenty minutes
before law enforcement arrived. M.M. blamed the state of the house on her house sitter, a
seventeen year old boy. J.M. stated that the ashtray full of cigarettes was present because he,
J.M., was a smoker. He admitted that one of the bathrooms was not working, but that the master
bathroom was in working condition. J.M. stated that the missing sheetrock and holes in the
ceiling was new and could have been caused by rain that weekend. Although M.M. claimed that
C.M.’s diarrhea was the source of the feces on the children’s clothing, J.M. gave no explanation
for it.
Snyder stated that she placed the children in foster care after each child received a bath,
lice treatment, and new clothes. Eventually, the children were placed with their paternal
grandparents. Don Walker, Ph.D., a licensed psychologist, stated that he conducted
psychological evaluations on J.M., A.M., and A.M.1. He diagnosed A.M. with (1) adjustment
disorder with disturbance of emotions and conduct, and (2) suspected child neglect. Her
suggestive intelligent quotient was in the average range, but her word recognition rate, spelling,
and reading tests were below kindergarten level. Dr. Walker recommended therapy, counseling,
and academic assistance. Dr. Walker diagnosed A.M.1 with adjustment disorder with mixed
disturbance of emotions and conduct.
Dr. Walker diagnosed J.M. with (1) bipolar disorder, “occurrence, severe, and
depressed;” (2) probable psychiatric discrepancies; (3) adjustment disorder with anxiety; and (4)
some personality disorders with histrionic and antisocial traits. He recommended counseling,
psychotherapy, medications, and treatments for anxiety. According to Dr. Walker, J.M. stated
that he had been diagnosed with intermittent explosive disorder. He also told Dr. Walker that he
often felt angry and irritable, made suicidal threats, and attempted suicide. Dr. Walker stated that
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personality disorders were extremely resistant to treatment and the probability of successful
treatment was remote. At trial, J.M. denied being diagnosed with bipolar disorder, but admitted
taking antidepressants.
J.M. and the children participated in counseling. The counselor has seen A.M. and A.M.1
twice per month since August 2015. The girls were making slow progress in behavior and
communication skills. A.M. was “very, very” protective, did not want to say the wrong thing,
and claimed that she was not supposed to say certain things. Both girls displayed some learned
behavior that was inappropriate by community standards, such as watching movies that they
believed to be age appropriate, but which were not. They also discussed some activities that they
saw their parents participating in, such as fighting and arguing. The counselor testified that the
girls behaved well in school and performed well academically. However, their paternal
grandparents had problems with the girls respecting authority. She testified that the children
loved J.M.
The counselor said that J.M. completed six sessions, showed good restraint, and was
calm. He discussed having anger issues and a strong support system. The counselor’s goals for
J.M. included finding and maintaining a safe and hazard free environment for his children and
being able to protect them. He seemed to be making progress and was very good at providing
feedback. However, J.M.’s caseworker informed the counselor of an incident in which J.M.
displayed anger outside of their sessions. The counselor asked J.M. to attend further sessions
and he attended one additional session. The counselor testified that J.M. minimized his display
of anger, was not happy to continue counseling, and never returned. The counselor testified that
she could not recommend that the children be returned to J.M.’s custody given his failure to
complete counseling and his inability to apply the skills that he had learned.
Katy McMahon, the CASA ad litem supervisor, testified that she visited with the children
numerous times. She stated that the children are doing well and that their current placement was
safe, appropriate, stable, and in their best interest. The counselor believed the girls were happy
with their current placement. Jeremiah Johnson, the CASA advocate, testified that it was in the
children’s best interest to be placed with their paternal grandparents. He needed more evidence
before he could recommend that J.M.’s parental rights be terminated.
Johnson stated that J.M. appeared “standoffish” when he visited the children. He said
that J.M. seemed really nervous, kept smoking cigarettes, and had a hard time interacting with
7
the children. The children’s counselor testified that, at the time of trial, the girls were concerned
because J.M. had not been attending visitations. They questioned where he had been and when
he would return. In contrast, J.M. testified that he visited the children when he was allowed to do
so, and never missed a scheduled visitation. He said that he visited the children twice a month,
called them three times a week, and last visited them two weeks before trial.
J.M. testified regarding his criminal record, drug tests, current home, employment, and
transportation. He denied being convicted of or indicted for an offense, or failing a drug test,
since August 2015. He lived in the same house from which the children were removed.
However, J.M. maintained that the house has been completely remodeled. He offered pictures of
the remodeled house, including the pantry, laundry room, bathroom, and kitchen. J.M. stated
that his mother owns the house, he has a verbal lease agreement, and he pays the utilities, but no
rent. He also explained that his current girlfriend and her child live with him in the house. J.M.
stated that he provided his girlfriend’s identification to the Department. J.M. testified that he
was employed at Pilgrim’s Pride in the shipping and labeling department. He had worked at
Pilgrim’s Pride for three weeks before trial, earned $9.00 per hour, and worked twelve-hour
shifts. He stated that he has a vehicle, a driver’s license, and car seats for the children. He
admitted that his mother gave him the vehicle, but she retained the vehicle’s title. J.M. also
testified that he completed a parenting class.
Conclusion
Viewing the above evidence relating to the statutory and Holley factors in the light most
favorable to the trial court’s best interest finding, we hold that a reasonable fact finder could
have formed a firm belief or conviction that termination of J.M.’s parental rights is in the
children’s best interest. See J.F.C., 96 S.W.3d at 266. The trial court could have determined
that the conditions of the house in August 2015 were unsafe, unsanitary, and a danger to the
children’s physical and emotional wellbeing. Moreover, the trier of fact could have believed that
J.M. smoked synthetic marijuana at the house, that at least one child knew how to make “blunts,”
and the children had access to the marijuana. The court could have also determined that J.M. had
severe mental health issues, which he minimized, did not apply the skills learned in counseling,
and did not interact well with the children. The trier of fact could have determined that J.M.’s
employment was too new to offer stability for the children, and that he depended on his mother
to provide housing and transportation. Finally, the Department supervisor recommended that
8
J.M.’s parental rights be terminated, and the CASA supervisor and counselor could not
recommend that the children be returned to J.M. because it would be harmful or detrimental to
them. In contrast, the CASA advocate stated that he needed more evidence before he could
recommend that J.M.’s parental rights be terminated even though he did not believe it was in the
children’s best interest to be returned to J.M. He testified, however, that he had been a CASA
volunteer for only four months, the children’s advocate for only two months, and that he had
attended only one visitation between J.M. and the children. Consequently, the trial court could
have given greater weight to the testimony of the other witnesses who agreed that termination
was in the children’s best interest.
According to J.M., however, the children expressed a desire to have a relationship with
him, placement with the grandparents adequately protected the children, and Johnson testified
that he was not sure whether termination was in the children’s best interest. This evidence is not
so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its
finding and formed a firm belief or conviction that termination of J.M.’s parental rights is in the
best interest of the children. See id. Therefore, we hold that the evidence is legally and factually
sufficient to support the trial court’s finding that termination of J.M.’s parental rights is in the
children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). Accordingly, we overrule
J.M.’s sole issue regarding the best interest of the children.
DISPOSITION
Having overruled J.M.’s sole issue, we affirm the trial court’s judgment.
GREG NEELEY
Justice
Opinion delivered December 27, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 27, 2016
NO. 12-16-00185-CV
IN THE INTEREST OF A.M., A.M., & C.M., CHILDREN
Appeal from the 258th District Court
of Trinity County, Texas (Tr.Ct.No. 22,007)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.