Donald Bates v. Texas Department of Protective and Regulatory Services ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00842-CV

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Donald Bates, Appellant

v.

Texas Department of Protective and Regulatory Services, Appellee

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FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT NO. C-96-0453-J, HONORABLE DICK ALCALA, JUDGE PRESIDING

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Donald Bates appeals the trial court decree terminating his parental rights with his daughter, L.B., and appointing The Texas Department of Protective and Regulatory Services ("Department") as L.B.'s permanent managing conservator. We will affirm the decree of termination.

FACTUAL BACKGROUND

Donald Bates and Brandy Lee Bishop ⁽¹⁾ are the natural parents of L.B. who was born on August 23, 1996, when Bishop was fourteen and Bates was twenty-nine. The Department removed L.B. on September 18, 1996, following the arrest of Bates and Bishop for shoplifting. Bates has not had any contact with L.B. since the Department removed her. After L.B.'s removal, Bates pled guilty to shoplifting and sexual assault of a child, L.B.'s underage mother. Bates received a ten-year sentence for the sexual assault charge, which the trial court probated for five years. Bates began his probation in March 1997 and violated it the next month. The court modified his probation and ordered him to jail for six months. After his release in December 1997, Bates violated the terms of his probation twice again. The court revoked his probation and since June 1998 Bates has been serving the remainder of his ten-year sentence.

After Bishop relinquished her parental rights, the Department asked Bates to do the same. When Bates refused, the Department sought termination. The trial court found that Bates knowingly placed or allowed L.B. to remain in conditions or surroundings which endangered her physical or emotional well-being, and that Bates engaged in conduct or knowingly placed L.B. with persons who engaged in conduct which endangered L.B.'s physical and emotional well-being. See Tex. Fam. Code Ann. §§ 161.001(1)(D), (E) (West Supp. 2000). Bates does not challenge the trial court's findings that his conduct justified termination. Bates first challenges the factual sufficiency of the evidence to support the trial court's finding that termination was in L.B.'s best interest. In his second issue, Bates argues that the Department failed to conduct reasonable efforts to reunify the family.

DISCUSSION

Standard of Review

Justification for the termination of parental rights must be shown by clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 1996 & Supp. 2000). Clear and convincing 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 allegation sought to be established. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). On appeal, the appellant may challenge both the legal and factual sufficiency of the evidence and we review the finding in light of the clear and convincing burden of proof at trial. Leal v. Texas Dep't of Protective & Regulatory Servs., No. 03-98-00516-CV, slip op. at 8 (Tex. App.--Austin, July 27, 2000, no pet. h.).

In determining a factual sufficiency challenge, we consider a neutral review of the evidence, both for and against the finding, and will set aside the judgment only if proof of the fact is so obviously weak or the finding is so contrary to the weight of the evidence as to be clearly wrong and unjust. Leal, slip op. at 9 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965)). We will not substitute our judgment for that of the trier of fact merely because we reach a different conclusion. Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.--Austin 1992, no writ).

Best Interest of the Child

Once the trial court finds parental conduct sufficient to warrant termination, the trial court must then determine if termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(2) (West Supp. 2000). Factors to consider in deciding 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 parent seeking custody; (5) the programs available to assist the parent seeking custody; (6) the plans for the child by the parent or agency seeking custody; (7) the stability of the home or the proposed placement; (8) any 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); Spurlock v. Texas Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 158 (Tex. App.--Austin 1995, writ denied). The list of relevant factors is not exhaustive; other factors may be considered when appropriate. See Holley 544 S.W.2d at 372. Similarly, the trial court is not required to consider all of the factors. See id.

In the short time that L.B. lived with Bates before her removal, Bates failed to demonstrate either an ability to care for L.B. or an ability to meet her physical and emotional needs. Bates testified that he was feeding L.B. during the first few weeks of her life; however, he did not have her on a feeding schedule. A Department caseworker testified that an infant should be kept on a feeding schedule. Bates also did not have adequate food or clothing on hand to care for a small child. At the time the Department removed L.B., the back of her head was flat, which indicated she had been left in a car seat for long periods of time. Bates also exposed L.B. to injury by taking her with him when he and Bishop were committing a crime. In L.B.'s presence, Bates and Bishop shoplifted cigarettes and then tried to sell the cigarettes in a bar. Bates testified that he was not concerned for L.B.'s safety and did not feel he was putting her at any risk. The record does not indicate that L.B. sustained an injury during the incident. However, a child does not have to suffer an actual injury; it is enough that the child's well-being is jeopardized or exposed to loss or injury. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Bates admitted that if he were "released from prison today" that he would not be able to raise L.B. Bates has been incarcerated the majority of L.B.'s life; when he was not incarcerated, Bates did not visit L.B.

Bates did not provide a suitable or stable home for L.B. A Department caseworker testified that Bates' apartment as well as L.B.'s baby crib were very dirty. The caseworker found pots and pans containing food and maggots in Bates' kitchen. Based on her observations, the caseworker did not believe Bates was capable of raising a child. She further opined that it would be in L.B.'s best interest to terminate Bates' parental rights. Another Department caseworker who managed L.B.'s case testified that Bates lacked the level of responsibility to provide care and structure for L.B. She also opined that Bates' parental rights should be terminated.

Bates also failed to provide a stable home for Bishop when she was pregnant with L.B. He testified that they did not have a home and were "living on the streets" during part of Bishop's pregnancy. For three months, Bates and Bishop lived out of their car or lived with friends. Bates did not have steady employment and what money he earned he used to buy cocaine to support his drug habit. Bates testified that he began using cocaine when he was twelve and has continued "until now." Although he did not use cocaine while Bishop was pregnant, he started again after L.B. was born.

With regard to Bates' future plans for L.B., Bates wanted her to remain with the foster family or be placed with one of his relatives until his release from prison. He will not be eligible for parole until 2002. After his release, he says he would like to obtain possession of his daughter. Bates' relatives live out of state and at the time of trial the Department had not determined if any of them could provide a satisfactory home for L.B. While such a situation might be in Bates' best interest, the court is directed to focus on the child's best interest, not on the best interest of the parent. See Spurlock, 904 S.W.2d at 158.

When she was three months old, the Department placed L.B. with a foster family where she has remained. The evidence indicated that L.B. has bonded with her foster family, and that the foster family has provided L.B. with a good home and a nurturing environment. The foster mother testified that she and her husband intended to adopt L.B. According to the Department, removing L.B. would be difficult and emotionally detrimental for her.

Bates' prior drug use, his relationship with L.B.'s mother who was a minor half his age, his decision to take L.B. on a shoplifting spree and his repeated violations of the terms of his probation which resulted in his incarceration indicate Bates is not a suitable caretaker. See Trevino v. Texas Dep't of Protective & Regulatory Servs., 893 S.W.2d 243, 248 (Tex. App.--Austin 1995, no writ) (criminal conduct and imprisonment are relevant in determining best interest of the child). When the only available parent is not a suitable caretaker, the trial court may determine that transient foster care is not in the child's best interest. D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 358 (Tex. App.--Austin 1993, no writ). Terminating Bates' parental rights is in L.B.'s best interest when the foster family she has lived with since the age of three months wishes to adopt her. It is not in L.B.'s best interest to remain in transient foster care until Bates' release from prison when he has never demonstrated the ability to be an appropriate care giver.

Having reviewed all the evidence, we conclude that the evidence is factually sufficient to support the trial court's finding that termination of Bates' parental rights is in L.B.'s best interest. We overrule Bates' first issue.

Reunification

Bates argues in his second issue that the Department failed to make reasonable efforts to reunify the family pursuant to 42 U.S.C.A. §§ 671(a)(15); 672(a)(1) (West Supp. 2000). In the final decree, the trial court expressly found that "all reasonable efforts consistent with time and circumstances and pursuant to 42 U.S.C. sections 671(a)(15) and 672(a)(1) were made by the Department to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to return home; but, it was not in the child's best interest to return home."

We note that Bates has not provided a home for L.B. and while he is incarcerated there is no family for the Department to reunify. Furthermore, the Department's policy of providing reunification services does not create a condition precedent to the involuntary termination of parental rights. See Jones v. Dallas County Child Welfare Unit, 761 S.W.2d 103, 109 (Tex. App.--Dallas 1988, writ denied). We overrule Bates' second issue.

CONCLUSION

Having reviewed the record, we conclude that the evidence is factually sufficient to support the trial court's finding that the termination of Bates' parental rights was in L.B.'s best interest. We affirm the trial court's decree.

Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: July 27, 2000

Do Not Publish

1. After efforts to reunify Bishop and L.B. failed, Bishop voluntarily relinquished her parental rights in October 1998. She is not a party to this appeal.

me and were "living on the streets" during part of Bishop's pregnancy. For three months, Bates and Bishop lived out of their car or lived with friends. Bates did not have steady employment and what money he earned he used to buy cocaine to support his drug habit. Bates testified that he began using cocaine when he was twelve and has continued "until now." Although he did not use cocaine while Bishop was pregnant, he started again after L.B. was born.

With regard to Bates' future plans for L.B., Bates wanted her to remain with the foster family or be placed with one of his relatives until his release from prison. He will not be eligible for parole until 2002. After his release, he says he would like to obtain possession of his daughter. Bates' relatives live out of state and at the time of trial the Department had not determined if any of them could provide a satisfactory home for L.B. While