in the Interest of E.S., a Child ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00387-CV
IN THE INTEREST OF E.S., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-97666J-12
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an ultra-accelerated appeal2 from an order terminating the parental
rights of Appellant Mother to her son Elijah.3 In one issue, Mother argues that
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
3
Pursuant to Texas Rule of Appellate Procedure 9.8(b)(2), we are using a
pseudonym for the minor child that is the subject of this suit. See Tex. R. App. P.
9.8(b)(2). We are also using the generic labels of “Mother” and “Father” instead
of the names of the parents to further the spirit of this rule.
the evidence is legally and factually insufficient to support the trial court’s finding
that termination of her parental rights to Elijah was in his best interest. We will
affirm.
II. BACKGROUND
Elijah was born on December 14, 2012, and according to CPS investigator
Mary Houseman, she received a referral to investigate Mother and Father due to
possible “medical neglect as well as physical abuse.” Houseman said that
Mother had a history with CPS dating back to 2008 regarding multiple children.
By Houseman’s account, CPS was concerned for Elijah’s well-being because of
an open case pertaining to his older sister. CPS had received a referral
regarding Sister over her having been transported to John Peter Smith Hospital
in early 2012 with “hematoma and swelling to the left side of her head, and her
stomach [being] rock hard and extended.” Hospital personnel determined that
Sister, ten months old at the time, had a broken clavicle and fractured skull.
They also revealed that Sister had a rare genetic liver disease known as
Glycogen Storage Disease (GSD) and that she was in need of a liver transplant.
These conditions in Sister concerned CPS for Elijah because doctors had told
Mother and Father that it was highly probable that any other children that they
bore would also have GSD and that all of their children should be tested at birth.
CPS had also expressed to the parents their need to have themselves and
their expected baby, Elijah, tested. Despite CPS’s instructions, Houseman said
that neither Mother nor Father told hospital personnel that Elijah needed to be
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tested. Houseman testified that Mother admitted to her that she had not
informed hospital personnel about Elijah’s need to be tested.
Regarding the parents’ involvement with Sister, Houseman said that
despite Sister having a 24-hour nurse due to her need for a liver transplant, both
Mother and Father had reported to her that they had not been to any of Sister’s
medical appointments for six months. Houseman also stated that six months into
Sister’s case, neither Mother nor Father had completed their service plans
necessary for the return of Sister. Due to their lack of involvement with Sister
and their failure to report Elijah’s need for medical testing to hospital personnel
pertaining to his possibly having the “life-threatening liver disorder” GSD, a court
granted CPS’s motion for ex parte removal of Elijah from the parents’ care.
Houseman said that the parents’ reaction to learning of Elijah’s removal
was indifferent, and instead of paying attention to her about Elijah’s removal, they
“both sat on separate beds and . . . watch[ed] the TV as [Houseman sat] in front
of them” explaining the situation. Houseman further averred that CPS had also
investigated Mother concerning Elijah’s older stepsister. That investigation,
conducted in 2008, pertained to Stepsister’s remaining in a dangerous
environment and allegations that Father had sexually abused her.
Fort Worth Police Department Patrol Officer R. Hoeppner also testified at
trial. According to Hoeppner, he responded to a domestic disturbance call
reported at 2:37 a.m. on August 11, 2013—a third-party witness called 9-1-1 and
reported an altercation that involved Mother and Father. According to Hoeppner,
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he made contact with Mother, who reported that Father had become angered
because Mother and Cousin wanted to go to the “West Side to hang out.”
Hoeppner averred that Mother had described to him how Father had torn her
keys from her belt loop, gotten out of the vehicle and walked to the passenger
side, opened the door, and grabbed Mother. Allegedly, he then “threw her onto
the concrete.” Hoeppner said that Cousin expressed that Father had also
assaulted her. Cousin told Hoeppner that she had seen Father “punch” Mother
in the chest and that when Cousin came to her aid, he pushed her down as well.
At some point during the ruckus, after Father had pushed Mother down, Mother
got up and ran, and Father chased her. Hoeppner said that both Mother and
Cousin had sustained injuries. Father denied that he had assaulted either of
them.
Hoeppner arrested Father, and he was charged with two counts of assault.
Hoeppner averred that at that time, Father also had warrants out for his arrest
related to unpaid traffic violations. Hoeppner said that Mother had been drinking
alcohol that night.
Court Appointed Special Advocates (CASA)’s case supervisor Roderick
Smith testified that he had worked on Elijah’s case for roughly a year before trial.
Roderick said that because of domestic violence issues in the parents’ home life,
they had been ordered to attend domestic violence classes following a
permanency review in October 2013. Smith said that after the permanency
review, in November 2013, Mother reported to him that Father “got upset and
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tore up her home and stole her money.” This concerned Smith because despite
a court order, neither Father nor Mother had attended any of their respective
domestic violence classes.
Smith testified that he was familiar with the incident wherein Father had
pushed Mother to the ground in August 2013. He averred that Mother had
admitted to drinking and “partying” that night and that her attempt to “drink and
drive” was troubling. Smith said that domestic violence between Father and
Mother “seem[ed] as if it [was] a pattern.” He also testified that Mother had had
“several run-ins with CPS in Abilene” concerning Sister and Stepsister before the
family moved to Fort Worth. Smith further stated that Mother had “missed visits”
with Elijah since his court-ordered removal. And Smith said that despite
programs and available financial support from CASA to provide a proper home
environment for Elijah, Mother had failed to take advantage of these programs.
Smith testified that it was CASA’s recommendation that both parents’
parental rights to Elijah be terminated. The trial court took judicial notice of
CASA’s written recommendation, dated December 16, 2013, that both parents’
rights be terminated.
Gladys Demus, a conservatorship worker for CPS assigned to Elijah’s
case, testified at trial as well. Demus said that she also worked on Sister’s case
prior to Elijah’s removal. Like other witnesses, Demus said that CPS had grave
concerns for Elijah given Sister’s unexplained broken clavicle and skull fracture
and the fact that Elijah needed testing at birth for the same liver disease that
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Sister died from in 2013. CPS’s concerns became more prominent due to the
parents’ lack of participation in services regarding Sister. Further, according to
Demus, Sister endured several dozen tests and doctor visits for treatment
concerning her GSD and yet the parents only attended two of these
appointments. Demus said that the parents’ same pattern of participation in
Sister’s services continued regarding Elijah—ranging from sporadic participation
to no participation at all.
Specifically as to Mother, Demus said that Mother was “standoffish” with
her and that she seem disinterested in interacting with Elijah during the visits that
she actually did attend. Because of a lack of communication from Mother to
Demus during Sister’s related services, Demus said that she was unable to
determine whether Mother was properly engaged in prenatal care when pregnant
with Elijah. Demus also said that because Mother would not communicate with
her, she could not determine whether Mother had a stable living environment to
provide for Elijah. Demus averred that the only visit she was able to coordinate
with Mother to observe her living arrangements occurred at an apartment that
Mother claimed to be her home, but several unidentified people appeared to be
living in the one-bedroom apartment, and there existed inadequate furniture and
clothing for Elijah. Demus also said Mother had failed to provide a lease
agreement to demonstrate that the apartment was hers.
According to Demus, when she inquired, Mother denied that the August
2013 domestic-violence incident ever happened. Demus further added that she
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and Mother’s attorney had “expressed to [Mother] how important it was for her to
tell” doctors that Elijah needed to be tested for GSD. Demus testified that
despite doctors’ and CPS’s urging that both parents also be tested as carriers of
the GSD gene, neither had done so. Demus said that it was her opinion that it
was in Elijah’s best interest that both parents’ parental rights to Elijah be
terminated.
Demus went on to testify that Elijah had been in the same foster home
since he was placed in foster care after the removal and that it was the only
home he had ever known. Demus stated that the foster home was a safe place
for him. She also averred that the foster parents had attended all court hearings
concerning Elijah and had expressed an interest in adopting him and were
licensed to do so. Demus further stated that the foster parents had appropriately
provided for Elijah’s physical needs, including routinely taking him to physical
therapy due to “stiffness” he had suffered from birth. She said that under the
foster parent’s care, Elijah was “walking, . . . getting into everything, . . . very
verbal, [and] very active.” She said he was developmentally on target. In
contrast to Mother’s seeming living conditions, the foster parents live in a large
home where Elijah “ha[d an] area where it’s just his area where he play[ed]. He
ha[d] a nice room, a lot of clothing, [and] a lot of toys.” According to Demus, the
foster mother was a stay-at-home mom who spent a lot of time with Elijah.
Demus averred that the foster home is safe and stable and that the foster
parents were able to meet Elijah’s physical, emotional, and financial needs.
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Father testified that he and Mother had broken off their relationship a few
months before the termination hearing. By Father’s account, he had completed
all of his services regarding both Sister and Elijah and he had notified doctors at
Elijah’s birth regarding Sister’s liver condition. Father also stated that he had
attended all of Sister’s doctors’ visits. He said that he and Mother relinquished
their parental rights to Sister so that she would have “a better shot at getting a
liver transplant.”
Father averred that the August domestic violence incident was his attempt
to prevent Mother from going to the “West Side to some guy’s house” to continue
partying and that Mother had been drinking. He said that although he “shoved”
Mother, she “never fell, or whatever.” Father stated that he was currently
unemployed pending assault charges.
As to Sister’s injuries, Father testified that Sister had fallen off of a bed and
sustained the broken collar bone, that he and Mother did not take Sister to the
hospital for another two months, and that they had only taken her there because
Mother had discovered that Sister had “swelling in her head.” Father did not
know how Sister’s skull became fractured.
Mother testified that she had been regularly attending court-ordered
counseling and co-parenting classes and that her only absences were due to her
work schedule or unavailable transportation. According to Mother, only a week
had gone by between Sister falling from the bed and the parents taking her to the
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hospital. Mother stated that she had had anger issues in the past and that at one
point, she had disciplined Stepsister with a sandal and left bruises on her thigh.
Contrary to Demus’s testimony, Mother said that she had seen Elijah every
two weeks for two hours at a time since his removal. Mother said that CPS
employees were “lying” about her attendance to these visits and that they wanted
to make her “look bad.” Specifically regarding Demus, Mother said that she felt
“like [Demus] just has a personal problem with” her. Mother admitted that she
had been drinking the night of the August domestic violence incident. Mother
said that she had not gotten GSD testing because doctors had told her that it was
her “option.” Mother said that she worked twelve-hour days and that if
necessary, she would get a second job to support Elijah if he was returned to her
care. She also said that she did not own a vehicle.
The trial court found that both parents had knowingly placed or knowingly
allowed Elijah to remain in conditions or surroundings which endangered his
physical and emotional well-being; that both parents had engaged in conduct or
knowingly placed Elijah with persons who engaged in conduct which endangered
his physical or emotional well-being; and that both parents failed to comply with
provisions of a court order that specifically established the actions necessary for
either of them to obtain Elijah’s return. The trial court also found that termination
of both Mother’s and Father’s parental rights in Elijah was in his best interest.
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O), (2) (West 2014). Mother’s
appeal followed.
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III. DISCUSSION
In her sole issue, Mother argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights to Elijah was in his best interest. We disagree.
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a) (West 2014); E.N.C., 384
S.W.3d at 802. “[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due
process demands this heightened standard because “[a] parental rights
termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102
S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C.,
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384 S.W.3d at 802. Evidence is clear and convincing if it “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); E.N.C.,
384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the party seeking
termination must establish by clear and convincing evidence that the parent’s
actions satisfy one ground listed in family code section 161.001(1) and that
termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001;
E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that termination is in the best interest
of the child. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all
the evidence in the light most favorable to the finding and judgment. Id. We
resolve any disputed facts in favor of the finding if a reasonable factfinder could
have done so. Id. We disregard all evidence that a reasonable factfinder could
have disbelieved. Id. We consider undisputed evidence even if it is contrary to
the finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. See id. “A lack of evidence does not constitute
clear and convincing evidence.” E.N.C., 384 S.W.3d at 808.
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We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573, 574. And even when credibility issues appear in the
appellate record, we defer to the factfinder’s determinations as long as they are
not unreasonable. Id. at 573.
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and we do not supplant the trial court’s judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that the termination of the parent-child relationship would be in the best interest
of the child. Tex. Fam. Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 17, 28
(Tex. 2002). 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 in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review
the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d
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239, 250 (Tex. 2013). Nonexclusive factors that a factfinder in a termination
case may also use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the
best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking
custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see
E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest finding, “we
consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
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finding. Id. That is, “[a] lack of evidence does not constitute clear and convincing
evidence.” E.N.C., 384 S.W.3d at 808.
Here, a multitude of the Holley factors supports the trial court’s best
interest finding. See Holley, 544 S.W.2d at 371–72.
Because Elijah is less than two years old, the trial court could not have
inquired into his desires. This factor does not weigh in favor of termination. See
T.G.R.-M., 404 S.W.3d 7, 16–17 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(reasoning that because child was removed two months after birth and his
desires could not be determined, first Holley factor did not weigh heavily in
Department’s favor).
As to Elijah’s physical and emotional needs now and in the future, the
record evidence demonstrated that Mother lacked transportation, adequate
furniture, and stable housing for Elijah. See id. (“The case worker . . . testified
that during the time T.G.R.-M. was in the Department’s custody, the mother had
not demonstrated an ability to provide a stable environment or reliable source for
food, clothing, shelter, and emotional support.”). Furthermore, Mother failed to
inform hospital personnel, and did not request personal genetic testing herself,
regarding a disease that Sister died from. This is despite the fact that CPS
workers, doctors, and her own attorney expressed that she do so. Sister
suffered through numerous tests and treatments before succumbing to the
disease before she reached the age of two. Other evidence demonstrated that
Mother waited between one week and two months before taking Sister to the
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hospital for a broken clavicle and a fractured skull. In short, the evidence
demonstrated that Mother has a consistent pattern of neglecting the physical and
emotional needs of her children. This Holley factor weighs heavily in favor of the
finding that termination of Mother’s parental rights to Elijah was in his best
interest.
Regarding any current and future emotional and physical danger to Elijah,
evidence at trial demonstrated that Mother allowed herself to remain in domestic
violence situations and was willing to drive while intoxicated. There is evidence
in the record that at least two domestic violence situations transpired after
Elijah’s removal. Further, multiple CPS workers testified that Mother failed to
complete court-ordered domestic violence counseling. See In re M.R., 243
S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.) (reasoning that evidence
that mother had “shown no desire or taken any action to modify her behavior”
pertaining to domestic violence supported trial court’s best interest finding). And
under this third Holley factor, the trial court could have also taken into account
Mother’s failure to provide verification of housing. See In re J.T.G., No. 14-10-
00972-CV, 2012 WL 171012, at *17 (Tex. App.—Houston [14th Dist.] Jan. 19,
2012, pet. denied) (mem. op.) (“Although [mother] claimed she was living at
home at the time of trial, the trial court could have discounted this testimony,
given that she . . . never provided proof of a lease.”). Moreover, Mother’s own
testimony was that she had bruised her oldest daughter’s thigh by angrily
15
spanking her with a sandal. This Holley factor weighs in favor of the finding that
termination of Mother’s parental rights to Elijah was in his best interest.
As to Mother’s parental abilities, the record revealed that Mother had not
fully completed the tasks in her service plan and had missed numerous
scheduled visits with Elijah. See In re M.D., No. 02-14-00305-CV, 2015 WL
729506, *1 n.5 (Tex. App.—Fort Worth Feb. 19, 2015, no pet.) (mem. op.) (“In
the time period leading up to the trial, [appellant] had not been visiting [child].”).
CPS workers’ descriptions of Mother’s conduct toward Elijah painted a picture of
a disinterested and “standoffish” parent more concerned with the television than
Elijah’s removal. There was also evidence that Mother did not adequately
engage in proper prenatal care when she was pregnant with Elijah. The record
further revealed that Mother had previously relinquished her parental rights to
Sister before Sister’s death. And this occurred after having allowed Sister to
suffer untreated from a life-threatening disease that was discovered when the
parents took Sister to the hospital with a broken clavicle and fractured skull—
injuries that Sister had suffered through for weeks, if not months, and for which
Mother had no explanation. Further, CPS has investigated neglect and abuse
from Mother toward three children. This Holley factor weighs in favor of the
finding that termination of Mother’s parental rights to Elijah was in his best
interest.
With regard to available programs, there was testimony that Mother had
not completed any of the tasks on her service plan. There was testimony that
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she did not complete domestic violence counseling. There was testimony that
she did not attend all the required parent-support group meetings. And, although
given information about CASA’s programs to financially help with adequate
furniture and supplies for Elijah, Mother did not avail herself of this opportunity.
This Holley factor weighs in favor of the finding that termination of Mother’s
parental rights to Elijah was in his best interest.
Regarding the stability of Elijah’s placement and the foster parents’
intentions, there was testimony that Elijah had been in the same foster home
since he was placed in foster care after removal and that it was the only home he
had ever known. Further testimony revealed that Elijah’s foster home was a safe
and stable place for him and that the foster parents, who were seeking to adopt
Elijah and were licensed to do so, had attended all court hearings concerning
him. There was also testimony that the foster parents had appropriately provided
for Elijah’s physical needs, including routinely taking him to physical therapy due
to “stiffness” that he has suffered from birth, and that he is now developmentally
on target. These Holley factors also weigh in favor of the finding that termination
of Mother’s parental rights to Elijah was in his best interest.
When viewing this evidence in light of the entire record under the legal
sufficiency standard, or when viewing the evidence in a light most favorable to
the trial court’s finding under the factual sufficiency standard, we conclude that
the trial court could have produced a firm belief or conviction that termination of
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Mother’s parental rights to Elijah was in his best interest. See J.P.B., 180
S.W.3d at 573; H.R.M., 209 S.W.3d at 108. We overrule Mother’s sole issue.
IV. CONCLUSION
Having overruled Mother’s sole issue on appeal, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: May 7, 2015
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