in the Interest of S.A.P., C.M.P., and J.L.P., Minor Children , 2015 Tex. App. LEXIS 1467 ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-14-00312-CV
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IN THE INTEREST OF: Appeal from
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S.A.P., C.M.P., AND J.L.P., 143rd District Court
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MINOR CHILDREN. of Reeves County, Texas
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(TC # 13-04-20350-CVR)
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OPINION
This is an appeal from an order terminating the parent-child relationships between the
mother and father of three young boys. The paternal grandmother, who had been named a joint
managing conservator of the children, was removed from her role. The Department of Protective
and Family Services was appointed managing conservator. Mother did not appear at trial and
has not filed notice of appeal. Thus, we consider only Father’s appeal.
FACTUAL SUMMARY
This is a story of mental illness and family violence. The children lived with their father
and paternal grandparents beginning October 11, 2007. In April 2013, allegations arose
concerning physical and sexual abuse of the boys by Grandfather and neglectful supervision by
Grandmother. At the time, the boys were ages twelve, eight and six. So much past history
existed with this family that it was described in the affidavit as a “staggering amount.” A formal
forensic interview of the children was conducted by the Children’s Advocacy Center. According
to Susan Carrasco, an investigator with Child Protective Services, the oldest child made an
outcry that his grandfather often threatened them with a knife “in order to get them to be quiet or
to not -- threaten them not to say -- not to talk about what was happening at home, not to tell CPS
. . . that [Grandfather] would often masturbate or fondle himself.” The boy also made outcries of
physical abuse and had some bruising to his knees. The middle child made the same outcry
concerning use of a knife to threaten the children to keep them quiet about domestic violence in
the home. The child was able to describe the knife and identify its location. He explained that
his grandfather was abusive to his grandmother and that he would threaten her. There was also
violence between the children’s father and grandfather. Carrasco spoke with Grandmother who
essentially blamed the oldest child, saying that he had been acting out, had been defiant and
needed medication adjustments for his behavior.
Carrasco described other incident reports. In 2009, another grandchild was removed
from the home because of complaints that Grandfather held a knife to him. Father is a paranoid
schizophrenic and has a criminal history dating back to 1995. Most concerning to the
Department were two terroristic threats he made against family and household members in 2009
and 2010. He had also been charged with family violence assault.
Based on the outcries and the previous events, the Department filed to remove the
children. On April 18, 2013, a safety plan was effectuated stipulating that Grandfather could no
longer reside in the home. But due to Grandmother’s inability to be protective, Father’s mental
health history, and the history of domestic violence in the home, the Department sought
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temporary managing conservatorship within weeks.
An adversary hearing was held May 2, 2013 and the Department was awarded temporary
managing conservatorship. Mother, Father and Grandmother were ordered to complete services,
including psychological evaluations, MHMR evaluations, parenting classes, counseling, and
random drug testing with the ultimate goal of family reunification. The boys were initially
placed at an emergency shelter in Abilene and later in a foster home in Dublin, Texas.
Lee West is a licensed professional counselor who provided family counseling for the
boys and Grandmother. He also conducted eight counseling sessions with Father, working on
anger management issues, impulse control issues, and his relationship with the children. Father
showed a genuine love for the boys but he had some medication issues and difficulty with
impulse control. Father discussed his own father, advising that Grandfather was not allowed to
be with the children or to talk with them because of the abuse allegations. West offered his
professional opinion that he had concerns about whether the boys would be safe living in the
home with their father. With regard to Grandmother, West conducted nine individual sessions
plus a session with the children. They talked about family violence, the children’s safety, and
how to deal with Father’s anger issues. He believed Grandmother had a genuine love for the
boys, but she was unable to understand their concerns:
I think, during the family sessions, she had difficulty understanding the boys. That
they did not really want to go back to the home. That they feared going back to
the home. And when the boys tried to express that in the family meeting, she had
difficulty hearing them and accepting what they were saying.
Q. If they did go home, do you think that she could take -- keep them safe from
their grandfather and their father, keep them safe?
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A. I think she would try. I have concerns that -- would she be able to? It’s my
understanding that she -- let’s see how to word this. She has the best concerns for
the children, but being able to protect the children from anger from her son, from
the impulses, I guess I have concerns since he’s still in the hospital, but he still
hasn’t fully accomplished the goals there. As far as the grandfather, she has
difficulty seeing the danger that the grandfather would present since he was
circling the office where we had the family meeting. It seemed like the
grandfather doesn’t stop, basically. I think she is very well intentioned. I just have
concerns with these two individuals not coming to the home.
Q. Did she tell you anything specifically about the dangers that [Father] presents
to the children?
A. Let me see.
Q. I think you mentioned threats before. Could you clarify what the threats were?
A. All right. Let me see if I can find those. While she was in the individual
session, she talked about [Father] assaulting her, and she had concerns that this
might occur possibly in the future.
Q. Regarding the combined family session between [Grandmother] and the boys,
was it your understanding that -- what was your understanding of the purpose of
that session?
A. Just to get the boys to express their emotions to [Grandmother], for them to get
their feelings as to how they would feel about coming back to live in the home.
They had -- they tried to express to her that they were still fearful of the
grandfather, and that they didn’t feel that the grandfather would stay away. Also,
that they felt that they weren’t being heard. The boys, when they tried to express
their feelings, they sort of gave up, and one of them put their head down, and I
think she expressed that, you know, he was tired, but they were just sort of
resigned that nothing’s changed, and that they wouldn’t be safe there.
When asked whether Grandmother had a realistic grasp of what it would take to protect the boys,
West responded that she has been in many violent situations in her life and she goes into a
“protective mode”. He had concerns that if Father or Grandfather came to the home, her ability
to protect the boys from either one of them would be impaired. Grandmother also lacked a
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realistic grasp of the emotional needs of the children. She tended to change the subject when
they spoke of their feelings. All three children indicated to West that they wanted to remain in
the foster home because they felt safe there. West believed it would be in their best interest to
stay because it would be the safest place for them. West then addressed the relationship between
Grandmother and Grandfather. Grandmother did not believe that her husband had abused the
boys and when a child is not believed, he feels unsafe.
Grandmother testified that on April 22, 2013, all of the boys came into her bedroom and
told her that Father had threatened them and told them what to tell the police and the CPS worker
about their Grandfather’s threats and masturbation. Grandmother reported to the police
investigator that what the children had said was untrue. She had never seen Grandfather threaten
the children with a weapon although Father had done so. She never kicked him out of the house
because he threatened the entire family. She had observed violence between Father and
Grandfather, but Father always started it. They fought each other with knives. Father would
verbally abuse both of his parents. He would “parade around naked and do masturbation and
sexual gestures to the kids.” Father was eventually arrested for trying “to do away” with
Grandmother. He turned the gas on and had been making threats to burn the house down. He
made threats of murder and arson in front of his children and Grandmother was afraid that he
would really do it. But her method of dealing with the situation was, “I’d say, ‘Don’t listen to
him. Let’s just sit down and read a book,’ or read out loud or watch cartoons, anything to get
their minds off of it or we’ll kneel down and say our prayers.”
Grandmother testified that if the boys could come home to her on the condition that they
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never have any contact with Father or Grandfather, she could make that happen, “but it’s not fair
for my husband to be caught in the middle of it.” If it was required, however, she would make
arrangements for her husband to live elsewhere for the next twelve years.
Father is a paranoid schizophrenic and has been declared legally incompetent. At the
time of trial, he was an inmate at the Big Spring State Hospital. When called as a witness, he
invoked his Fifth Amendment rights and did not testify. Grandmother did discuss the mental
illness in the family.
Q: And what are the boys’ disabilities?
A. Fetal alcohol syndrome, ADHD, PTSD, autism. Those are the most important
neurological disorders.
Q. You realize that since they’ve been in foster care, they’ve been re-evaluated,
and several of those things have been ruled out now, do you know that?
A: The oldest one has told me that. Back when the foster mother brought the
children to have a family counseling, the oldest one did inform me that he was
getting back on medication, and that his psychiatrist had designated him as being
a schizophrenic, just like his father, and then the two youngest ones, they still had
shown mood disorders, the ADHD, and the autism.
Grandmother also believed that the children had been abused at the foster home. She described
the youngest as being “emotionally wrecked by being grounded for months, not just one day or
one hour, by months, and being excluded in going anywhere with his other brothers.”
Jody Williamson is a CASA volunteer and served as the boys’ guardian ad litem. She
recommended that the children remain in the foster home. She based her opinion on the fact that
the children had “not faltered or waived (sic) anything that they have said to me” about the
allegations of abuse in the home.
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A. They want safety is their main issue. Love. They want to grow up in a home
that doesn’t have violence.
Q. Do they want to remain with the foster parents?
A. Yes, they do.
Q. Is your recommendation partially based on observations that you’ve made of
the children and things that they’ve done?
A. Yes.
Q. Was there a specific incident that particularly stands out in your mind?
A: I and Mary Bell, my executive director at that time, went to Harmony Home
to visit the boys. We were just asking how they were, sorry, and [S.A.P.] said,
“Here. Let me show you what happened.”
Q. Do you need to take a minute?
A. And that little boy got with [C.M.P.] and they showed us -- we didn’t ask them
to do this. They just did it. [S.A.P.] played the grandfather, and [C.M.P.] played
[S.A.P.]. So S.A.P. put his hand on [C.M.P.]’s shoulder and took a knife, or his
finger, and said “This is a knife,” and they described the knife, and they -- he
went like this to his brother.
Q. For the record, dragged his finger across his brother’s throat?
A. Yes. And he said that’s what’s going to happen to you. He said they would
come home from the school, and they had a Teddy Bear that had his throat cut
and his head cut off and the stuffing out of it, and the grandfather had done it.
Williamson also explained that the boys have voiced their unwillingness to return to their
grandmother because they are afraid of their grandfather. The children recounted that they
believe Grandmother would allow Grandfather back in the house because “he overpowers her.
That he – she does whatever he says.” They don’t believe Grandfather will stay away and that
makes them “very fearful.”
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Finally, Williams discussed the progress they children have made in foster care. The
oldest is more talkative and easier to understand. He is calm and becoming more self-assured.
He is gaining self-confidence. The younger boys are excelling in their school work and are
better socially. “They’re just doing so much better in every aspect.”
J.W. has been the boys’ foster mother since August 2013. She also described the positive
changes in the children. S.A.P. is playing football and is one of the best on the team. He is an A
and B student. He is no longer on medication and is not receiving services. He had low self-
esteem in the beginning but is improving. C.M.P. is in special education reading and math
classes and is also an A and B student. He is no longer ADHD but he tested below the mental
status and is receiving services. The youngest still struggles and is a bit stubborn and
hardheaded with the teachers. He is treated for ADD with medication. J.W. asked the court to
terminate the parental rights of both parents so that she and her husband could adopt the boys.
Kendrick Ragland is a conservatorship worker for the Department. He testified that
Mother did not complete any of the ordered services. Father and Grandmother did complete
their service plans and both regularly took advantage of opportunities to call the boys. Because
of this, the Department considered a “monitored return” of the children. The first step was a
family session with Lee West. Father didn’t attend because he was arrested on May 7, 2014 for
making terroristic threats and interfering with an emergency contact call. Because of his
incarceration, he was not able to attend the counseling session and the Department abandoned
efforts to reunite the children with him. It was still considering a monitored return to
Grandmother. That changed after the family session:
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Q. Okay. After the family session, did our plan change again?
A. Yes; it did.
Q. And what did it change to?
A. Termination of parental rights and also termination of JMC for the
grandmother.
Q. And just briefly, we’ve already heard from Mr. West, but just briefly, what
caused that shift?
A. [Grandmother] basically told the boys that they had been brainwashed and that
they were lying on grandpa. She was very defiant and did not let them get a word
in otherwise. In addition, the children spotted [Grandfather] several times before
and after the family session riding around the building.
The Department had approached Mother, but she claimed she could not care for the boys
because she was taking care of her five-year-old daughter. She had not made contact with the
boys in over a year and had made no effort to begin her service plan, much less complete it. The
Department sought termination of her rights based on constructive abandonment and failure to
comply with the service plan. It sought to terminate Father on grounds of endangerment and to
remove Grandmother as a joint managing conservator. He explained the reasoning:
Q. Okay. And at this time are we asking the Court to remove her as a conservator?
A. Yes.
Q. Can you tell us why that would be in the boys’ best interest?
A. [Grandmother] has failed to protect her grandchildren from physical,
emotional, and sexual abuse. She still is in denial even after completing services
ordered by the Department that her husband committed such acts, and told her
grandchildren that they were lying on her husband.
Q. It has been suggested a couple of times today in a roundabout sort of way that
the Department could return the children to her and continue monitoring. Is that
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an option at this point?
A. No.
Q. Why not?
A. Because she hasn’t proven to the Department that she has protective capacities
to care for these children.
Q. So even if we sent a case worker by every day, we don’t feel like they would
be safe with her?
A. No.
Ragland recounted that S.A.P. had mentioned “he used to think that the environment that he was
-- he was in back in Pecos was normal.” The boy said living with the foster parents is much
more peaceful. He wants to stay there. In fact, each of the boys expressed a preference for
remaining with their foster family. As to best interest, Ragland testified:
Q: Are either of the parents or the grandmother able to provide for these boys’
long-term emotional needs?
A. No.
Q. Are any of them -- have any of them demonstrated the ability to provide for
their -- for the boys’ long-term safety?
A. No.
Q. Have any of them demonstrated appropriate parenting skills?
A. No.
Q. Have any of them given the Department a legitimate reason for their failure to
protect and their failure to provide parenting?
A. No.
Q. Is the Department looking at the foster parents as a long-term placement even
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if adoption doesn’t work out?
A. Yes.
Q. And are the foster parents, have they demonstrated that they are more than
capable of providing safety and support and stability and everything these kids
need?
A. Yes.
Lastly, the children’s attorney ad litem offered her report. The children have told her
they want to remain with their foster family. They’re afraid of their grandfather and don’t
believe their grandmother can keep them safe. There has been domestic violence within the
home between Grandmother and Grandfather and between Father and both of his parents. Father
is institutionalized. The boys told vivid stories of knives and mutilated teddy bears. Their
stories have been consistent -- they long to feel safe.
PARENTAL TERMINATION
A parent’s rights may be involuntarily terminated through proceedings brought under
Section 161.001 of the Texas Family Code. See TEX.FAM.C ODE ANN. § 161.001 (West 2008).
Under this provision, the petitioner must (1) establish one or more of the statutory acts or
omissions enumerated as grounds for termination, and (2) prove that termination is in the best
interest of the child. See id. Both elements must be established and termination may not be
based solely on the best interest of the child as determined by the trier of fact. Texas Department
of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The natural right of a parent to the care, custody, and control of their children is one of
constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also Santosky v.
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Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599 (1982) (acknowledging
that a parent’s rights to “the companionship, care, custody, and management” of their children
are constitutional interests, “far more precious than any property right”). Not only is a parent’s
interest in maintaining custody of and raising her children “paramount;” it is quite possibly the
oldest fundamental liberty recognized by our courts. See In the Interest of M.S., E.S., D.S., S.S.,
and N.S., 115 S.W.3d 534, 547 (Tex. 2003) (noting that Texas courts recognize that “a parent’s
interest in maintaining custody of and raising his or her child is paramount”); Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) (in discussing the
constitutional stature of parental rights, the United State Supreme Court said, “the interest of
parents in the care, custody, and control of their children -- is perhaps the oldest of the
fundamental liberty interests recognized by this Court”); see also In re M.S., 115 S.W.3d at 549
(“Termination of parental rights is traumatic, permanent, and irrevocable.”). Although parental
rights are of constitutional magnitude, they are not absolute. In the Interest of C.H., 89 S.W.3d
17, 26 (Tex. 2002) (“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.”).
Burden of Proof
Because of the importance of parental rights, and the severity and permanency of
termination, the quantum of proof required in a termination proceeding is elevated from a
preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 747, 102
S.Ct. at 1391; accord Holick, 685 S.W.2d at 20-21; see In re M.S., 115 S.W.3d at 547 and In the
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Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.)
(cases recognizing that involuntary termination of parental rights is a drastic remedy which
divests the parent and child of all legal rights, privileges, duties, and powers normally existing
between them, except for the child’s right to inherit from the parent.); see also In the Interest of
B.L.D. and B.R.D., 113 S.W.3d 340, 353–54 (Tex. 2003) (noting that because of the severity and
permanency of termination, due process requires the party seeking to terminate parental rights
prove the necessary elements by the heightened burden of proof of clear and convincing
evidence).
“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 2008); see In the Interest of
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616
(Tex. 2007) (contrasting the standards applied in termination proceedings and the standards
applied in modification proceedings); In the Interest of C.D. and K.D., No. 02-10-00070-CV,
2011 WL 1743688, at *4 (Tex.App.--Fort Worth May 5, 2011, no pet.). This intermediate
standard falls between the preponderance of evidence standard of ordinary civil proceedings and
the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979); In the Interest of D.T., 34 S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet.
denied) (op. on reh’g). Although the proof must be more than merely the greater weight of the
credible evidence, there is no requirement that the evidence be unequivocal or undisputed.
Addington, 588 S.W.2d at 570.
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Standards of Review
The Supreme Court has clearly articulated the applicable standards of legal sufficiency
review in termination cases. Accordingly, we consider all of the evidence in the light most
favorable to the trial court’s finding, “to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In the Interest of J.P.B., 180
S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the
fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that
finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long
as a reasonable fact finder could do so. Id.; In re J.F.C., 96 S.W.3d at 266. We disregard any
evidence that a reasonable fact finder could have disbelieved, or found to have been incredible,
but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96
S.W.3d at 266. A legal sufficiency or no evidence point will only be sustained when the record
discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is
barred by rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or
(4) the evidence establishes conclusively the opposite of a vital fact. See Swinney v. Mosher, 830
S.W.2d 187, 194 (Tex.App.--Fort Worth 1992, writ denied).
The Termination Order
Mother’s Rights
Mother’s rights were terminated under TEX.FAM.CODE ANN. § 161.001(N), with the
court finding that she had (1) constructively abandoned the children who have been in a
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permanent or temporary managing conservatorship with the Department of Family and
Protective Services or authorized agency for not less than six months, and the Department or
authorized agency has made reasonable efforts to return the child to the parent; (2) failed to
regularly visit or maintain significant contact with the children; and (3) demonstrated an inability
to provide the children with a safe environment. The court also found that termination was
proper under TEX.FAM.CODE ANN. § 161.001(O) because Mother failed to comply with the
provisions of the court order that specifically established the actions necessary for her to obtain
the return of the children who have been in the permanent or temporary managing
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 under Chapter 262 for the abuse or
neglect of the child. Lastly, the court found that termination was in the best interest of the boys.
Father’s Rights
Father’s rights were terminated under TEX.FAM.CODE ANN. § 161.001(D) and (E), with
the trial court finding that he knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered the physical or emotional well-being of the
children; and that he engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangers the physical or emotional well-being of the children. The
court also found that termination was in the best interest of the boys.
Grandmother
The trial court removed Grandmother as joint managing conservator of the children.
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Statutory Predicates
Both subsections (D) and (E) require proof of endangerment, which means to expose to
loss or injury, or to jeopardize a child’s emotional or physical health. Doyle v. Texas
Department of Protective and Regulatory Services, 16 S.W.3d 390, 394 (Tex.App.--El Paso
2000, pet. denied). While endangerment means more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be
directed at the child or that the child actually suffer injury. Doyle, 16 S.W.3d at 394.
Subsections (D) and (E) differ in one respect: the source of the physical or emotional
endangerment to the child. See In Interest of B.S.T., 977 S.W.2d 481, 484 (Tex.App.--Houston
[14th Dist.] 1998, no pet.); In Interest of S.H.A., 728 S.W.2d 73, 83-84 (Tex.App.--Dallas 1987,
writ ref’d n.r.e.). Subsection (D) requires a showing that the environment in which the child is
placed endangered the child’s physical or emotional health. Doyle, 16 S.W.3d at 394. Conduct
of a parent or another person in the home can create an environment that endangers the physical
and emotional well-being of a child as required for termination under Subsection D. Id.; see In
re W.S., 899 S.W.2d 772, 776 (Tex.App.--Fort Worth 1995, no writ) (“environment” refers to the
acceptability of living conditions, as well as a parent’s conduct in the home). Inappropriate,
abusive, or unlawful conduct by persons who live in the child’s home or with whom the child is
compelled to associate on a regular basis in his home is a part of the “conditions or
surroundings” of the child’s home under subsection (D). In re M.R.J.M., 280 S.W.3d 494, 502
(Tex.App.--Fort Worth 2009, no pet.). The fact finder may infer from past conduct endangering
the child’s well-being that similar conduct will recur if the child is returned to the parent. Id.
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Thus, subsection (D) addresses the child’s surroundings and environment rather than parental
misconduct, which is the subject of subsection (E). Doyle, 16 S.W.3d at 394; B.S.T., 977 S.W.2d
at 484; S.H.A., 728 S.W.2d at 84.
Under subsection (E), the cause of the danger to the child must be the parent’s conduct
alone, as evidenced not only by the parent’s actions but also by the parent’s omission or failure
to act. Doyle, 16 S.W.3d at 395; B.S.T., 977 S.W.2d at 484; S.H.A., 728 S.W.2d at 83-84. The
conduct to be examined includes what the parents did both before and after the child was born.
In Interest of D.M., 58 S.W.3d 801, 812 (Tex.App.--Fort Worth 2001, no pet.); Dupree, 907
S.W.2d at 84. To be relevant, the conduct does not have to have been directed at the child, nor
must actual harm result to the child from the conduct. Dupree, 907 S.W.2d at 84; In Interest of
C.D., 664 S.W.2d 851, 853 (Tex.App.--Fort Worth 1984, no writ). Additionally, termination
under subsection (E) must be based on more than a single act or omission; a voluntary,
deliberate, and conscious course of conduct by the parent is required. In Interest of K.M.M., 993
S.W.2d 225, 228 (Tex.App.--Eastland 1999, no pet.). The specific danger to the child’s well-
being need not be established as an independent proposition, but may be inferred from parental
misconduct. In Interest of N.K., 99 S.W.3d 295, 300 (Tex.App.--Texarkana 2003, no pet.).
Evidence of criminal conduct, convictions, and imprisonment and its effect on a parent’s life and
ability to parent may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d at
133. Imprisonment alone does not constitute an endangering course of conduct but it is a fact
properly considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34; In re R.W., 129
S.W.3d at 743-44. Routinely subjecting a child to the probability that she will be left alone
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because her parent is in jail, endangers the child’s physical and emotional well-being. See In the
Interest of S.D., 980 S.W.2d 758, 763 (Tex.App.--San Antonio 1998, pet. denied). However,
“the relationship of the parent and child, as well as efforts to improve or enhance parenting skills,
are relevant in determining whether a parent’s conduct results in ‘endangerment’ under section
161.001(1)(E), even where the parent is incarcerated.” In the Interest of D.T., 34 S.W.3d 625,
640 (Tex.App.--Fort Worth 2000, pet. denied). Finally, under subsection O, the Department has
the burden to establish that (1) the parent was ordered to comply with a family service plan as a
result of the child’s removal for abuse or neglect, and (2) she failed to comply with the
requirements of the family service plan.
Best Interest of the Children
A determination of best interest necessitates a focus on the child, not the parent. See In
the Interest of R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). However, there is a
strong presumption that it is in the child’s best interest to preserve the parent-child relationship.
Swate v. Swate, 72 S.W.3d 763, 767 (Tex.App.--Waco 2002, pet denied). The Texas Supreme
Court has enumerated certain factors which should be considered: the child’s desires; the child’s
emotional and physical needs now and in the future; the emotional and physical danger to the
child now and in the future; the parenting abilities of the individuals seeking custody; the
programs available to assist those individuals to promote the child’s best interest; the plans for
the child by those individuals or the agency seeking custody; the stability of the home or
proposed placement; the parent’s acts or omissions that may indicate that the existing parent-
child relationship is not a proper one; and any excuse for the parent’s acts or omissions. Holley
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v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (“the Holley factors”). Also, permanence is of
paramount importance in considering a child’s present and future needs. Dupree v. Texas
Department of Protective & Regulatory Services, 907 S.W.2d 81, 87 (Tex.App.--Dallas 1995, no
pet.).
WAS TERMINATION IN THE BEST INTEREST OF THE CHILDREN?
In his brief, Father acknowledges that the statutory predicates under subsections (D) and
(E) have been met. He brings two issues for review challenging only the legal and factual
sufficiency of the evidence to support the trial court’s finding that termination was in the best
interest of the boys. The crux of his argument is that the Department presented little evidence of
Father’s ability to parent once he is released from the State Hospital and presented no evidence
that the children were afraid of Father. In short, Father complains that the danger to the children
is their grandfather. We dispute his interpretation of the record.
There is abundant evidence regarding the behavior of the grandfather. But there is
likewise vivid testimony of Father’s issues. We will highlight the specific testimony with regard
to him. Grandmother testified that on April 22, 2013, all of the boys came into her bedroom and
told her that Father had threatened them and told them what to tell the police and the CPS
worker about their Grandfather’s threats and masturbation. Grandmother reported to the police
investigator that what the children had said was untrue. She had never seen Grandfather threaten
the children with a weapon although Father had done so. She never kicked him out of the house
because he threatened the entire family. She had observed violence between Father and
Grandfather, but Father always started it. They fought each other with knives. Father
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would verbally abuse both of his parents. Father would “parade around naked and do
masturbation and sexual gestures to the kids.” Father was eventually arrested for trying “to do
away” with Grandmother. He turned the gas on and had been making threats to burn the house
down. He made threats of murder and arson in front of his children and Grandmother was afraid
that he would really do it.
Father refused to testify based on his constitutional Fifth Amendment right. When a
litigant chooses to invoke his right in civil matters, certain inferences may be drawn. Cook v.
Tom Brown Ministries 385 S.W.3d 592, 602 (Tex.App.--El Paso 2012, pet. denied), citing Baxter
v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976); Wil-Roye Inv.
Co. II v. Washington Mut. Bank, FA, 142 S.W.3d 393, 405 (Tex.App.--El Paso 2004, no pet.);
Tex. Cap. Securities, Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex.App.--Houston [1st Dist.] 2001,
pet. denied). This rule has been applied in suits for parental termination. See In re C.J.F., 134
S.W.3d 343, 352–53 (Tex.App.--Amarillo 2003, pet. denied) (“Refusal to answer questions by
asserting the privilege is relevant evidence from which the finder of fact in a civil action may
draw whatever inference is reasonable under the circumstances”), citing In re P.A.O., M.P.O.,
and S.L.O., Minor Children, No. 08-98-00436-CV, 2001 WL 175620 at *13 (Tex.App.--El Paso
February 22, 2001, pet. denied) (not designated for publication).
Father did not testify as to his plans following his release from the State Hospital. Prior
to his incarceration, he had been living with his parents and the children. It is a reasonable
inference that, having nowhere else to go, he would return home. It is also a reasonable
inference that because Grandmother either could not or would not prevent Grandfather from
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living at the home, the domestic violence between the men would resume.
The counselor also expressed his concerns about whether the boys would be safe living
with Father. He opined that if Father or the grandfather came to the home, Grandmother’s ability
to protect the boys from either of them would be impaired. He added that Father’s impulse
control problems were affected by issues with his medication. The counselor did not know
whether Father would ever fully recover but he certainly could not currently function as a parent.
In individual sessions, Grandmother spoke of Father assaulting her and she had concerns that this
might occur in the future.
This evidence demonstrates compliance with the Holley factors. The children were afraid
to return home and wanted to remain with their foster family. It is true that they did not
specifically say they did not want to live with Father. But they articulated their fear for their
physical safety, and their emotional states of mind focused on their distrust of Grandmother to
protect them. The violence and emotional abuse in the household presents danger to the
children, both now and in the future. With regard to parenting ability, Grandmother and Father
are clearly lacking judgment. Programs were made available, but Grandmother believed the
children were lying and Father offered no evidence of progress or recovery. Plans for the future
were offered by Grandmother and amounted to a return to previous conditions. The home
environment was unstable, while the children were thriving in their foster home and wanted to
remain. The record is replete with Father’s acts and omissions which indicate that the existing
parent-child relationship is not a proper one. Using Holley terminology, his excuse is mental
illness. We applaud his efforts at getting treatment, but he faces criminal charges still. Given the
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counselor’s concern that Father’s impulse control is related to issues with his medication, we
have little confidence that his behavior will change. Most importantly, Father had the
opportunity to testify concerning his medication, psychiatric treatment, progress, goals, and plans
for his children. He exercised his right not to do so. He cannot now sit back and complain that
the Department provided little evidence of medical treatment or the severity of his paranoid
schizophrenia.
Because the Department proved by clear and convincing evidence, both legal and factual,
that termination was in the best interest of the children, we overrule Issues One and Two and
affirm the judgment of the trial court below.
February 13, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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