in the Interest of T.S. and T.S. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00463-CV
____________________
IN THE INTEREST OF T.S. AND T.S.
_______________________________________________________ ______________
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. C-215,575
________________________________________________________ _____________
MEMORANDUM OPINION
This is a parental-rights termination case. Following a bench trial, the trial
court rendered an order that terminated Mother’s parent-child relationships to two
of her five children, her nine-year-old daughter, Anita, and her two-year-old son,
Rusty. 1 The trial court found, by clear and convincing evidence, that statutory
1
Because the children have identical initials in this parental-rights
termination case and to protect their identities, we identify the two minors who are
the subjects of the order by using pseudonyms. See Tex. R. App. P. 9.8. The
parent-child relationships between Mother and three of her other children were not
terminated; but, with respect to those three children, the trial court appointed their
respective fathers as their managing conservator. Mother has not challenged the
1
grounds existed for each of the terminations, and found that terminating each of the
parent-child relationships would be in Anita’s and Rusty’s best interest. See Tex.
Fam. Code Ann. § 161.001 (1)(D), (E), (O), (2) (West Supp. 2013). Mother
challenges the legal and factual sufficiency of the evidence supporting the trial
court’s findings. We hold the evidence is sufficient to support the trial court’s
order, and we affirm the judgment.
Standard of Review
In a legal sufficiency review of an order terminating parental rights, the
evidence relating to a challenged finding is reviewed “in the light most favorable to
the finding to determine whether a reasonable trier of fact could have formed a
firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002). With respect to Mother’s factual sufficiency arguments, we must
“give due consideration to evidence that the factfinder could reasonably have
found to be clear and convincing.” Id. Under a factual sufficiency standard, the
trial court’s findings are sufficient unless, based on the entire record, the disputed
evidence that could not have been credited in favor of the finding is so significant
respective fathers’ appointments as managing conservators in this appeal.
Additionally, after this termination case commenced, Mother gave birth to a sixth
child. Her sixth child was not subject to the proceedings that are now on appeal.
2
that the trial court could not have reasonably formed a firm belief or conviction
that the challenged finding was true. See id.
Background
Several hours after Mother failed to return home after leaving to run errands,
Mother’s six-year-old son called 911. When the police arrived, there were three
minor males in the home, a ten-year-old, a six-year-old, and a ten-month-old
infant. 2 No adults were present.
Around 8:00 p.m. that evening, approximately five hours after leaving three
of her children at home, Mother returned. During the termination hearing, Mother
admitted that she left her three sons at home without supervision for approximately
five hours while she ran errands.
This was not the first time Mother left several of her children at home for an
extended period without proper supervision; during the trial, Mother acknowledged
that in 2010, the Department had removed her children from her home after she left
some of them at home without proper supervision. Mother acknowledged that after
the children were removed in 2010, she had a discussion with the Department’s
caseworker about not leaving them without supervision again.
2
Mother took Anita with her, but she left Rusty, who was then ten months
old, with his two older brothers.
3
The second removal due to lack of appropriate supervision in the home
occurred in 2012. During the termination hearing that is the present subject of
Mother’s appeal, Mother claimed that she left the children in 2012 to run errands,
although she acknowledged that she had been hesitant to do so. Mother testified
that she intended to find a vehicle large enough for all of her children, and she
thought that if she could find one, she would not have to leave them alone again.
When the trial occurred, approximately fifteen months after the trial court had
placed the children in the Department’s temporary custody, Mother testified that
she had not yet found a suitable vehicle to take all of her children with her when
she needed to run errands.
Failure to Comply with Court Order
In part, the trial court’s termination order is based on Mother’s failure to
comply with the provisions of a court order that established what she was required
to do to have her children returned to her. See Tex. Fam. Code Ann. §
161.001(1)(O). Mother does not contest that following the 2012 removal, the trial
court issued an order establishing the actions she was required to follow to get her
children back. 3 See id. Instead, Mother raises legal and factual sufficiency issues
3
Nor does Mother argue that the children were not in the Department’s
custody for at least nine months as a result of the removal at issue. See Tex. Fam.
Code Ann. § 161.001(1)(O).
4
that assert the State failed to prove, by clear and convincing evidence, that she had
not complied with the provisions of the trial court’s order that established what was
required of her to get her children back.
According to Mother, the evidence shows that she made every reasonable
effort to comply with the service plan. The testimony indicates that under the
family service plan, Mother was required to complete a psychological evaluation,
receive psychological counseling, obtain stable housing, visit the children,
complete a drug assessment and random drug screens, and comply with conditions
of a community supervision order that related to Mother’s 2009 indictment for
committing aggravated assault with a deadly weapon.
The Department responds to Mother’s legal and factual sufficiency
arguments by pointing to the evidence in the record that supports the trial court’s
conclusions that Mother failed to timely complete her individual counseling,
follow the recommendations from her psychological and psychiatric evaluations,
follow all requirements of the terms of her probation, and obtain and maintain a
stable home.
With respect to Mother’s psychological evaluation, the evidence before the
trial court reflects that Mother missed her initial appointment for a psychological
evaluation. Although Mother subsequently completed her psychological
5
evaluation, she completed that task approximately six weeks late. During the
hearing, the Department’s caseworker, Samantha Myers, testified that Mother had
been diagnosed with intermittent explosive disorder, and she stated that Mother’s
records reflect that Mother had exhibited homicidal ideation. The report of
Mother’s psychological evaluation was admitted during the trial; it contains the
psychologist’s diagnostic impression that Mother was suffering from a delusional
disorder (persecutory type, without good prognostic features), possible
cyclothymic disorder (rapid mood swings), and personality disorder (not otherwise
specified, with schizoid, histrionic, and antisocial features). The psychologist who
performed the evaluation recommended that (1) a therapist investigate Mother’s
possible homicidal ideation due to the significant levels of aggression that she had
reported; (2) a therapist help Mother learn stress reduction techniques; (3) Mother
learn to develop and choose among alternative ways of thinking, feeling, and
behaving; (4) Mother requires extensive “value adjustment work” because she
lacked knowledge of normal societal conventions; (5) a therapist be used to
encourage Mother to be responsible and accountable for her actions; and, (6)
Mother learn social skills to replace the skills she currently uses, as environmental
support and external structures are vital to deter Mother’s behavior since her
6
problems appear to be firmly entrenched. The report concludes that the likelihood
of Mother making major changes in her life is very slim.
Other evidence introduced during the hearing addressed whether Mother had
received the various types of counseling required by her family service plan.
According to Myers, Mother attended a single session of family based safety
services. During that session, the services provider reported that Mother had
exhibited volatile behavior. The services provider reported to Myers that she was
not willing to continue providing services for Mother.
Mother also attended five counseling sessions with a licensed professional
counselor. The notes from these sessions were admitted without objection. The
notes of the first session reflect that Mother told the counselor that she wanted to
get her children back, and that Mother acknowledged she needed to obtain
housing, complete anger management classes, and attend counseling sessions. The
counselor noted that Mother was serving a ten-year probationary period for
stabbing her boyfriend with a knife. The counselor also noted that Mother had
recently married a man after dating him for three months, and that during the first
month of their marriage, Mother had a few verbal disagreements with her husband.
According to the counselor’s first note, Mother had begun to consider how she
7
could handle her anger and to understand that she needed to keep her children safe
at all times.
The notes from the second counseling session reveal that Mother and her
husband had a major conflict “due to her being oversensitive regarding a specific
incident that occurred earlier today.” Mother indicated to the counselor that she
understood how she could have better handled her anger, and Mother discussed
with her counselor possible strategies designed to reduce Mother’s anger level,
including using deep breathing exercises.
At the third counseling session, the counselor noted that Mother was
pregnant. Mother reported that she and her husband were excited about the baby.
Mother agreed that she needed to obtain a residence for her family, but she
indicated to the counselor that she was not employed.
During the fourth session, Mother reported that due to her husband’s use of
mood altering chemicals, they were experiencing discord. The counselor’s notes
reflect that following an argument that occurred at three o’clock in the morning,
Mother and her husband had been evicted from their efficiency apartment. Mother
advised the counselor that she planned to pursue a divorce, and that she was
residing in a church member’s home.
8
The counselor’s progress notes from the final session of February 4, 2013,
indicate that Mother and her husband had received spiritual counseling and
reconciled, and that her husband had obtained a home. The counselor noted that
Mother continued to reflect on her role in the conflict, how she might have been
selfish, and how to avoid being selfish.
Regarding whether Mother kept her appointments, Myers testified that
Mother had missed some of her appointments, and despite having been in
counseling for a year, Mother failed to complete it. Myers further explained that
Mother’s counselor reported to her that Mother had not made any significant
progress in counseling and “that there was nothing further that she could do.”
Relying on the information that Mother’s counselor had provided, and her
experience that most of the Department’s clients complete counseling in three to
six months, Myers advised Mother that the Department would no longer pay for
counseling; however, Myers encouraged Mother to continue with counseling on
her own. Mother’s counselor agreed to update Myers if she provided Mother with
additional counseling.
Although Mother testified that she saw the counselor after February 2013,
she could not explain how many additional sessions she attended or when those
sessions occurred. The counselor’s records do not show that Mother received any
9
further counseling. Mother also testified that her church gave her counseling as
often as she felt she needed it, but Mother’s pastor, who also testified at the
termination hearing did not state that Mother had received psychological
counseling through the church.
With respect to housing, the evidence shows that Mother resided in several
places after her children were removed. According to Myers, Mother never located
appropriate housing as required by the service plan. Although Myers indicated that
she knew Mother’s husband had recently purchased a home, Myers stated that
Mother separated from her husband after one month of marriage. Myers was also
aware that as of the date of the hearing, Mother was living in a women’s and
children’s shelter. Additionally, there was evidence introduced at the hearing that
Mother’s caseworker from the women’s shelter was unaware that Mother was
serving community supervision based on a charge of aggravated assault; the
caseworker’s testimony creates some doubt about whether Mother, given her
history of family violence, can continue to reside at the shelter. According to
Myers, Mother “never had a housing location that [the Department] would put the
children back in.”
With respect to future housing, the evidence showed that Mother was still
attempting to obtain suitable housing as of the trial date, fifteen months after the
10
removal. Mother testified that the week before the hearing she leased a three
bedroom apartment. Myers denied that she was aware that Mother had leased an
apartment. Mother did not produce the lease during the termination hearing.
Viewed in the light most favorable to the trial court’s findings, the evidence
allowed the trial court to reasonably conclude that Mother had not obtained
suitable housing for her children by the deadline established in the family service
plan.
With respect to whether Mother complied with the requirement of her
community supervision order, the evidence at the termination hearing showed that
a criminal court had placed Mother on community supervision. The evidence at the
termination hearing shows that Mother had been indicted in October 2009 for
stabbing a man with a knife. In November 2010, Mother admitted her guilt and
received deferred adjudication. Under the criminal court’s community supervision
order, Mother was ordered to “not associate with any disreputable person[.]” Under
the terms of her family service plan, Mother was required to comply with the
requirements that were placed on her by the community supervision order. While
subject to the terms of the community supervision order and the family service
plan, Mother met the man that she then married. According to Myers, Mother’s
11
husband is a parolee with an extensive criminal background. 4 According to Myers,
Mother was aware that the man she chose to marry was on parole when the
marriage occurred. During the termination hearing, Mother claimed she was
unaware of the extent of her husband’s criminal record when she married him.
Myers did acknowledge that Mother might not have been aware of all of her
husband’s criminal history when she decided to marry him; nevertheless, based on
the evidence before it, the trial judge could have reasonably concluded that even if
Mother did not know the entire extent of her husband’s criminal record, she
knowingly associated with a person that had a criminal record in violation of her
community supervision order and her family service plan.
While Mother presented a number of excuses to justify her noncompliance
with her court-ordered family service plan, the issue for the trial court at the
termination hearing was whether Mother complied with its order; the question was
not whether Mother substantially complied or presented excuses for her non-
compliance. See In re I.G., 383 S.W.3d 763, 771 (Tex. App.—Amarillo 2012, no
pet.); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.). The
excuses on which Mother relied to justify her non-compliance with her family
4
During a preliminary hearing, the trial court noted that the husband’s
criminal record included “aggravated offenses, weapons, robbery, giving false
information, resisting arrest, trespass, theft, [and] marijuana.” According to Myers,
the man Mother married had a rap sheet that was twenty-three pages long.
12
service plan are relevant only to the trial court’s best interest determination. See In
re M.C.G., 329 S.W.3d 674, 675-76 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (supp. op. on reh’g).
Citing In re J.R., Mother contends her failure to complete her family service
plan cannot justify a finding under section 161.001(1)(O) in the absence of
evidence that she had engaged in conduct that endangered the physical or
emotional well-being of the children. See 171 S.W.3d 558 (Tex. App.—Houston
[14th Dist.] 2005, no pet.). However, the grounds for termination under review in
In re J.R. were sections 161.001(1)(D), which requires a showing that the
conditions or surroundings endangered the physical or emotional well-being of the
child, and 161.001(1)(E), which requires evidence that the child was placed with a
person who endangered the physical or emotional well-being of the child. Id. at
568. In other words, the trial court did not terminate the parent-child relationship in
In re J.R. based on section 161.001(1)(O), but the Fourteenth Court of Appeals did
review the parents’ failure to provide stable housing in evaluating whether there
was “legally sufficient evidence to support an implied finding under subsections
161.001(1)(D) and (E) based on this conduct.” Id. at 577.
We conclude that because In re J.R. is a case that did not depend on a
termination finding under 161.001(1)(O), it is inapposite. While the State must
13
show the removal of the children occurred due to abuse or neglect to justify
termination under section 161.001(1)(O), subsection O does not require the State to
prove the children were actually endangered. Compare Tex. Fam. Code Ann. §
161.001(1)(O), with id. § 161.001(1)(D), (E); see also In re E.C.R., 402 S.W.3d
239, 246-47 (Tex. 2013). In her appeal, Mother has not challenged the trial court’s
finding that the children were removed based on her neglect.
From the arguments presented in Mother’s appeal, we are also not persuaded
that the evidence supporting the trial court’s subsection 161.001(1)(O) finding is
factually insufficient. With respect to Mother’s testimony that she had recently
leased an apartment, the trial court could have disbelieved her; no objective
evidence, such as a lease, was produced during the hearing to show that Mother
had secured a suitable home for her children. Further, a caseworker at the women’s
shelter testified that it was not normal for the shelter to house a perpetrator of
domestic violence, and she further testified that she was unaware that Mother was
alleged to have problems with anger management and that she was not being
treated for her mental health issues. The trial court could have reasonably chosen
to reject Mother’s claim that the shelter represented stable housing when the record
does not reflect that Mother will be allowed to continue living there.
14
With respect to Mother’s factual sufficiency argument, the evidence which
Mother contends that a reasonable factfinder could not have credited is not so
significant that a factfinder could not have formed a firm belief or conviction that
Mother failed to comply with the provisions of a court order that specifically
established the actions she was required to take to have Anita and Rusty returned
to her. See In re J.F.C., 96 S.W.3d at 266. We conclude that the trial court’s
termination findings based on subsection 161.001(1)(O) are supported by sufficient
evidence. See Tex. Fam. Code Ann. § 161.001(1)(O).5 We overrule issue one.
In light of our disposition of issue one, reviewing issues two and three would
not afford Mother any relief. Therefore, it is not necessary that we address issues
two and three to resolve Mother’s appeal. See Tex. R. App. P. 47.1.
Best Interest
In issue four, Mother argues that the evidence is insufficient to support the
trial court’s best interest findings. With respect to determining what is in a child’s
best interest, a trial court begins its analysis with a “strong presumption that the
best interest of a child is served by keeping the child with a parent.” In re R.R., 209
S.W.3d 112, 116 (Tex. 2006); see Tex. Fam. Code Ann. § 153.131 (West 2008).
5
A single predicate finding under section 161.001(1) of the Texas Family
Code will support a judgment of termination when there is also a finding that
termination is in the best interest of the children under section 161.001(2). In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003).
15
Nevertheless, a competing presumption exists, as a prompt and permanent
placement of children in a safe environment is also in their best interest. Tex. Fam.
Code Ann. § 263.307(a) (West 2008). In reviewing the trial court’s best interest
determinations regarding Anita and Rusty, we consider the Holley factors,
consisting of:
(1) each child’s desires;
(2) each child’s emotional and physical needs now and in the future;
(3) any emotional and physical danger to each child now and in the future;
(4) the parental abilities of those individuals asking the trial court for
custody;
(5) the programs to promote the best interest of the respective children that
were available to assist the individuals asking the trial court for custody;
(6) the plans for the respective children by the individuals or agency seeking
custody;
(7) the stability of the home or the proposed placement;
(8) the parent’s acts or omissions which may indicate that the existing
parent-child relationships are improper; and
(9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam. Code Ann. §
263.307(b).
16
When the termination hearing occurred, Anita was nine years old and Rusty
was two. The evidence before the trial court includes Mother’s psychological
evaluation, and it reflects on Mother’s capability to parent. Mother’s psychological
testing indicates that she had been diagnosed with significant problems that
affected her ability to function normally on a daily basis and that her problems
were unlikely to change.
In considering what was in Anita’s and Rusty’s best interest, the trial court
could also consider whether Mother had demonstrated that she had the ability to
obtain and maintain safe housing for them. Over the period that the children were
in the Department’s custody, Mother appears to have lived in four places, and her
recent marriage appears to have introduced additional instability into her living
arrangements. Although the terms of Mother’s community supervision prohibited
her from associating with persons of ill repute, the evidence was undisputed that
she married a man who was on parole and then had a child with him. There was
evidence that Mother’s husband had a lengthy criminal history, that his drug use
had been a disruptive factor during their marriage, and that Mother’s husband
verbally abused her to such an extent that she left him and was living in a shelter.
Yet, as of the date of the termination hearing, Mother was not yet divorced. Myers
testified that she was concerned that Mother was cycling between accusing her
17
husband of improper behavior and then returning to him. It was reasonable for the
trial court to consider the additional instability of Mother’s recent marriage in
evaluating Mother’s current and future capability of the requirement that she obtain
and maintain safe housing for her children.
Given the testimony of Mother’s psychological makeup, the trial court could
also consider Mother’s history of domestic violence in reaching its best interest
determinations. Before Mother’s parenting issues first came to the Department’s
attention, the evidence showed that in 2009, Mother stabbed her boyfriend in the
abdomen while one of her children was present. According to Mother, she stabbed
her boyfriend after finding another woman’s phone number in his phone. The
judge, given the Mother’s plea of guilty and her statement to police about the
incident when it occurred, could reasonably reject Mother’s claim that the stabbing
occurred due to her accidental reaction to being grabbed while holding a knife.
Although Mother’s family service plan required her to maintain appropriate
housing, there was evidence of a chaotic home environment surrounding the homes
Mother had provided in the past, evidence that she had not maintained safe housing
during the removal that led to the proceedings at issue, and evidence showing that
Mother had not yet secured appropriate housing for the children as of the date of
the termination hearing. We conclude the evidence is sufficient to support the trial
18
court’s finding that Mother had not and would not in the future provide Anita or
Rusty a stable home.
In considering Anita’s and Rusty’s emotional needs, and although Mother
disputed the Department’s evidence, there is evidence from which the trial court
could have reasonably concluded that Mother had not completed the counseling
required by her family service plan. The trial court could have also concluded that
when her Department-provided counseling ended, Mother did not pursue further
psychological counseling, and on this record it could reasonably reject her
unsupported testimony that she had gotten additional counseling. Mother’s failure
to obtain the types of tools she needed as described in her psychological evaluation
that would have allowed her to adjust the types of behavior she had exhibited with
respect to her children is evidence the trial court could reasonably have considered
in making its determination that Mother did not have the skills she needed to meet
her children’s emotional needs. Despite Mother’s apparent lack of parenting skills,
there was evidence that Mother had bonded with her children, and she visited them
regularly while they were in foster care. Although the evidence regarding whether
Mother met the emotional needs of her children was disputed, there is evidence
supporting the trial court’s conclusion that over the long run, she would not
adequately do so.
19
The evidence that Mother had previously neglected her children by leaving
them without proper supervision is also an act that the trial court could have
reasonably considered as showing that Mother’s relationship with her children was
improper. The testimony established that the Department temporarily removed
Mother’s children from her custody in 2010 because she left them unattended for
hours. Although Mother claimed that she had learned from that experience that she
could not leave her oldest son in charge of his younger siblings, she did so again in
April 2012. Mother’s excuse for leaving the children at home in 2012 was that she
needed to find a vehicle and that it was raining so it was not practical to take all of
the children with her. The trial court could have concluded that this excuse was
unreasonable since the children had been previously removed when Mother left
them without proper supervision, and Mother should have learned from that
removal that it was improper to do so.
With respect to the desires of Anita and Rusty, Mother contends that the
Department offered no proof that they did not desire to stay with her. Myers
testified that Anita expressed a desire to continue seeing Mother and to remain
with her siblings; however, there was also testimony that the children were in a
stable placement and they were happy. The evidence further showed that an
adoptive home for Anita and Rusty had been found recently, that Anita and Rusty
20
appeared to be happy there, and that the foster parents were willing to keep in
touch with Anita’s and Rusty’s other siblings. Although Anita initially had a
difficult time in earlier placements, there was evidence showing that she had
adjusted to her new foster parents and was behaving well there.
With respect to Mother’s parenting ability, Mother argues that Anita and
Rusty do not have special needs, that she attempted to improve her parenting skills
through courses at the women’s shelter, and that by participating in counseling at
her church, she can provide stable housing. Mother concludes the Department has
not shown that she will endanger her children again in the future. On Mother’s
behalf, Mother’s caseworker from the women’s shelter testified that Mother
attends parenting groups regularly, and that Mother has not been observed having
any anger problems.
In response, the Department argues that Mother’s psychological evaluation
reveals problems with her cognitive organization, and these problems cause
Mother to be impulsive. Additionally, the Department notes that Mother failed to
complete counseling services, and that Mother had not demonstrated that she could
maintain a stable home. The trial court could have discounted the weight of the
testimony of Mother’s caseworker from the shelter, as the caseworker
acknowledged that she was unaware that Mother was on community supervision
21
for aggravated assault, that persons with histories of domestic violence are
generally not allowed to live at the shelter, and that Mother was not receiving any
psychological treatment or counseling through the shelter. The evidence in the
record on Mother’s parenting abilities and skills is conflicting, but it was up to the
trial court to weigh the existing evidence and determine what to believe. See In re
J.F.C., 96 S.W.3d at 266.
According to Mother, in making its best interest determination, the trial
court should have considered her recent pregnancy to excuse her failure to comply
with the requirements of her family service plan. But, given the evidence of
Mother’s psychological problems and in considering how those problems affected
Mother’s capacity to make good decisions as a parent, the trial court could have
reasonably rejected Mother’s claim that her pregnancy represented a valid excuse
for Mother’s failure to comply with the terms of her family service plan. Id.
Having considered the Holley factors, and the evidence before the trial court,
we conclude the trial court could form a firm conviction or belief that Anita’s and
Rusty’s best interests were served by terminating Mother’s parental rights. Id. We
overrule issue four, and we affirm the trial court’s judgment.
22
AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on January 6, 2014
Opinion Delivered April 10, 2014
Before McKeithen, C.J., Kreger and Horton, JJ.
23