in the Interest of N.E.S., a Child ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00282-CV
IN THE INTEREST OF N.E.S., A CHILD
From the County Court at Law No. 2
Johnson County, Texas
Trial Court No. D200800062
MEMORANDUM OPINION
The mother of N.E.S. appeals from an order terminating her parental rights. She
contends in her sole issue that the evidence is legally and factually insufficient to
support either of the predicate grounds for termination or the court’s finding that
termination is in the best interest of N.E.S. We will affirm.
In a bench trial, the court found that the mother, “Elaine,”1 (1) knowingly placed
or allowed N.E.S. to remain in conditions or surroundings that endangered his physical
or emotional well-being and (2) failed to comply with an order that established the
actions necessary for the return of the child. See TEX. FAM. CODE ANN. § 161.001(1)(D),
1
To protect the identity of the child, we refer to the mother by a pseudonym. See TEX. FAM. CODE
ANN. § 109.002(d) (Vernon 2009); TEX. R. APP. P. 9.8(b)(2).
(O) (Vernon Supp. 2010). The court also found that termination is in the best interest of
N.E.S. Elaine contends in her sole issue that the evidence is legally and factually
insufficient to support any of these findings. We will affirm.
Standards of Review
For a legal-sufficiency challenge, we view all the evidence in the light most
favorable to the challenged findings to determine whether a factfinder could have
reasonably formed a firm belief or conviction that the findings are true. See In re J.L.,
163 S.W.3d 79, 84-85 (Tex. 2005); In re T.N.F., 205 S.W.3d 625, 630 (Tex. App.—Waco
2006, pet. denied).
For a factual-sufficiency challenge, we “must give due deference” to the
challenged findings. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
The court should inquire “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the [ ]
allegations.” “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, then the evidence is factually insufficient.”
Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)); accord T.N.F., 205 S.W.3d at 630.
Dangerous Conditions or Surroundings
Regarding the first finding, Elaine argues that the crisis center where N.E.S was
removed from her custody was a safe and appropriate environment and, even though
the child and she resided “at several different locations” “in the months leading up to
In re N.E.S. Page 2
her contact with the Department [of Family and Protective Services],” the Department
failed to establish that any of these prior locations posed a danger to N.E.S.
According to the testimony, Elaine and N.E.S. lived in at least eight different
locations from the time of his birth until he was removed from her care when he was
almost ten months’ old.2 Several of the places where they lived or visited posed a
danger to N.E.S. First, when they visited Michael S. for Christmas, Elaine testified that
he “violently sodomized” her while N.E.S. was in the room. She testified that this was
not “a safe and appropriate place” for N.E.S. and they left “into the cold to get away.”
She hitched a ride with a man who took her to her friend Christine’s home, where they
lived about four months. That ended when she got into a “fight” with Christine, who
pulled Elaine to the ground while she was holding N.E.S. Then, she moved to a trailer
park where she lived with a woman she met in church. A Department investigator
testified that Elaine characterized this person as an “unsuitable adult.” Elaine testified
that this person said that she was bipolar “and it was quite obvious she didn’t take her
meds.” After living there nine days, she stayed with another friend for three days.
Then she moved to a 72-hour shelter before she was transferred to the crisis center from
which N.E.S. was removed.
The caseworker Kindra Brown testified that these moves created “an unstable
situation” for N.E.S. and placed him “in an unsafe condition.”
2
The Department maintains that they lived in 10 different locations, which Elaine disputes. For
example, the Department includes within this number their stay with Michael S., the father of an older
child of Elaine’s, for 2 days for “visitation for Christmas.” Elaine does not count this stay as a place
where they lived, but she did testify that she had nowhere else to go when they left there.
In re N.E.S. Page 3
In addition, Elaine testified that she began smoking marijuana when she was
seventeen and had also tried cocaine and methamphetamine. She was diagnosed as
having problems with substance abuse and alcohol dependence. She tested positive for
marijuana twice after N.E.S. was removed from her care. She denied ever smoking
marijuana in his presence but conceded that she was around him after having smoked
marijuana, which she characterized as “a bad decision.” She also reported to a women’s
center intoxicated on two different nights, in violation of the center’s rules.
Under the applicable standard, the evidence is legally sufficient to support the
court’s finding that Elaine knowingly placed or allowed N.E.S. to remain in dangerous
conditions or surroundings. See In re J.C., 151 S.W.3d 284, 288-89 (Tex. App.—
Texarkana 2004, no pet.); In re D.C., 128 S.W.3d 707, 715-16 (Tex. App.—Fort Worth
2004, no pet.). The evidence is likewise factually sufficient to support this finding. Id.3
Best Interest
We employ the familiar Holley factors when evaluating the sufficiency of the
evidence to support a finding that termination is in the best interest of the child. See
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); T.N.F., 205 S.W.3d at 632. We also
consider the factors listed in section 263.307 of the Family Code. See TEX. FAM. CODE
ANN. § 263.307 (Vernon 2009); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In
re S.N., 272 S.W.3d 45, 51 (Tex. App.—Waco 2008, no pet.).
3
Because we have found the evidence legally and factually sufficient with regard to this predicate
ground for termination, we need not examine the sufficiency of the evidence to support the other
predicate ground. See In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.).
In re N.E.S. Page 4
Desires of the Child: N.E.S. was two at the time of trial and not of sufficient
maturity to express a preference. See S.N., 272 S.W.3d at 51-52.
Emotional and Physical Needs: N.E.S. has the usual emotional and physical needs
of a toddler. Brown testified that Elaine suffers from major depressive disorder and
borderline personality disorder and has attempted suicide “numerous” times. Brown
opined that these conditions prevent Elaine from being consistently capable of
providing for N.E.S.’s needs, particularly in view of Elaine’s history of failure to seek
treatment for her mental health needs. Id. at 52; D.C., 128 S.W.3d at 717.
Emotional and Physical Danger: Elaine’s history of drug and alcohol abuse, the
violent encounters she experienced during the nomadic existence she had with N.E.S.,
and the instability of living in so many different locales all contribute to the conclusion
that Elaine poses a present and future risk of danger to N.E.S. See S.N., 272 S.W.3d at
52-53; J.C., 151 S.W.3d at 291; D.C., 128 S.W.3d at 717.
Parental Abilities: Elaine completed a parenting class as part of her service plan.
However, the caseworker and a manager from a women’s center where she lived until a
month before trial both expressed concerns about her ability to provide adequate
parenting for N.E.S. Thus, the evidence is conflicting on this factor. See S.N., 272
S.W.3d at 53.
Available Programs: Elaine provided testimony that N.E.S. and she could live in a
women’s center where she lived for about seven months after N.E.S. was removed from
her care. However, she was “exited” from this center about a month before trial
because of a verbal altercation with a case manager and another resident. A manager
In re N.E.S. Page 5
from the center testified that she did not believe Elaine was stable enough to
successfully participate in the program with N.E.S. Thus, the evidence is conflicting on
this factor. Id.
Plans for Child: Elaine testified that she wants to live with N.E.S. in this women’s
center while she receives the treatment and counseling she needs. However, the
manager testified that she does not believe Elaine can successfully participate in the
program. The Department plans to keep N.E.S. in foster care until a suitable adoptive
home is found. Thus, the evidence is conflicting on this factor. Id.
Stability of the Home: N.E.S. is currently living in a safe and stable home with his
foster parents. Elaine wants to live with him in the women’s center although the
manager does not believe she can successfully participate due to her history. Beyond
Elaine’s prior experience in this women’s center, she has demonstrated a history of
being unable to provide N.E.S. a stable home. Thus, the evidence is conflicting on this
factor. Id.
Acts and Omissions: Elaine’s history of drug and alcohol abuse, the violent
encounters she experienced during the nomadic existence she had with N.E.S., and the
instability of living in so many different locales are all acts and omissions relevant to
this factor. Her continued use of marijuana and alcohol after N.E.S.’s removal, her
failure to seek treatment on a consistent basis, and her difficulties in the women’s center
are also relevant. The evidence on this factor supports the best-interest finding. Id. at
53-54; J.C., 151 S.W.3d at 291; D.C., 128 S.W.3d at 717.
In re N.E.S. Page 6
Excuses: Elaine’s primary excuse is that she was a victim of domestic violence
and thus cannot be blamed for N.E.S.’s exposure to the violent encounters noted. She
had to move so frequently because she has no home or family support and no stable
employment. However, she offers no excuse for her drug and alcohol abuse, her
inability to follow the rules and stay in a rehabilitation center, or her failure to seek
treatment on a consistent basis. Thus, the evidence is conflicting on this factor. See S.N.,
272 S.W.3d at 54.
Statutory Factors: Evidence regarding seven of the thirteen statutory factors listed
in section 263.307(b) support the best-interest finding: (1) N.E.S.’s “age and physical and
mental vulnerabilities”; (2) “the magnitude, frequency, and circumstances of the harm
to [N.E.S.]”; (3) Elaine’s mental health history and relevant evaluations; (4) the history
of domestic violence; (5) Elaine’s substance abuse; (6) her failure to demonstrate
adequate parenting skills; and (7) the lack of an adequate social support system. See
TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (6), (7), (8), (12), (13). Three of the statutory
factors do not apply. Id. § 263.307(b)(2), (5), (9).4 The evidence regarding two of the
statutory factors is conflicting, so we consider these factors to be neutral: (1) Elaine’s
willingness "to seek out, accept, and complete counseling services" and cooperate with
the Department; and (2) her “willingness to effect positive environmental and personal
changes within a reasonable period of time.” Id. § 263.307(b)(10), (11). And the
evidence regarding one of the statutory factors tends to contradict the best-interest
4
The factors which we deem inapplicable are: (a) the frequency and nature of out-of-home
placements; (b) whether N.E.S. is fearful of returning to Elaine’s home; and (c) whether the perpetrator of
harm to N.E.S. has been identified. See TEX. FAM. CODE ANN. § 263.307(b)(2), (5), (9) (Vernon 2009).
In re N.E.S. Page 7
finding: “whether the child has been the victim of repeated harm after the initial report
and intervention by the department.” Id. § 263.307(b)(4).
“Our evaluation of whether the evidence supports a best-interest finding does
not involve a precise mathematical calculation despite the listing of relevant factors.”
S.N., 272 S.W.3d at 54 (citing C.H., 89 S.W.3d at 27; T.N.F., 205 S.W.3d at 632). Under the
applicable standards, we hold that the evidence is legally and factually sufficient to
support the court’s finding that termination of Elaine’s parental rights is in the best
interest of N.E.S.
We overrule Elaine’s sole issue and affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed October 6, 2010
[CV06]
* (Chief Justice Gray concurs in the judgment to the extent it affirms the trial
court’s judgment of termination of Elaine’s parental rights. A separate opinion will not
issue. He notes, however, that the “statutory factors” identified and reviewed relate to
a determination of “whether the child’s parents are willing and able to provide the child
with a safe environment” and as such they are not “statutory factors” directly regarding
the best interest of the child in the context of a termination proceeding. See TEX. FAM.
CODE § 263.307. While we can evaluate other factors beyond the Holley factors, I find it
unnecessary to do so, especially when the record does not contain any indication that
the parties presented evidence on these factors, although in the trial in this proceeding
they did but they do not argue this evidence in connection with the issue on appeal.
Further, it sets a dangerous precedent for us to be weighing into our review factors the
parties routinely do not even attempt to address in a termination proceeding. It is not
surprising that neither party cites or discusses these “statutory factors” in their briefing
In re N.E.S. Page 8
to this Court of the “best interest” element necessary to terminate the parental rights to
the child. Finally, the summary nature in which the Court makes its review of these
“statutory factors” makes them seem relatively less important than the other factors.
Any factor that we consider, whether it is one of the original Holley factors or an
additional factor, should be weighed into the analysis based on its relative value in
reviewing the determination of best-interest.)
In re N.E.S. Page 9