in the Interest of F.H. A/K/A F.A., H.H., and B.H., Children ( 2014 )

Opinion filed February 24, 2014
In The
Eleventh Court of Appeals
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No. 11-13-00255-CV
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IN THE INTEREST OF F.H. A/K/A F.A., H.H., AND B.H.,
CHILDREN
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C44915
MEMORAND UM OPI NI ON
This is an appeal from an order of termination of the parental rights of the
mother and father of F.H. a/k/a F.A., H.H., and B.H. Both parents appeal. We
affirm.
In two issues on appeal, the children’s parents challenge the factual
sufficiency of the evidence to support termination. The termination of parental
rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2013). To determine if the evidence is factually sufficient,
we give due deference to the finding and determine whether, on the entire record, a
factfinder could reasonably form a firm belief or conviction about the truth of the
allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). To
terminate parental rights, it must be shown by clear and convincing evidence that
the parent has committed one of the acts listed in Section 161.001(1)(A)–(T) and
that termination is in the best interest of the child. FAM. § 161.001.
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet.
denied). But courts may use the non-exhaustive Holley factors to shape their
analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include,
but are not limited to, (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to
the child now and in the future, (4) the parental abilities of the individuals seeking
custody, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement,
(8) the acts or omissions of the parent that may indicate that the existing parent-
child relationship is not a proper one, and (9) any excuse for the acts or omissions
of the parent. Id. Additionally, evidence that proves one or more statutory grounds
for termination may also constitute evidence illustrating that termination is in the
child’s best interest. C.J.O., 325 S.W.3d at 266.
In this case, the trial court found that the parents had committed four of the
acts listed in Section 161.001(1): those found in subsections (D), (E), (O), and (P).
Specifically, the trial court found that both parents had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the children’s physical or emotional well-being; that the parents had
engaged in conduct or knowingly placed the children with persons who engaged in
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conduct that endangered the children’s physical or emotional well-being; that both
parents had failed to comply with the provisions of a court order that specifically
established the actions necessary for them to obtain the return of the children, who
had been in the managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the children’s
removal from the parents for abuse or neglect; and that both parents (a) used a
controlled substance in a manner that endangered the children and (b) either failed
to complete a substance abuse treatment program or continued to abuse a
controlled substance after completing a substance abuse treatment program. The
trial court also found, pursuant to Section 161.001(2), that termination of each
parent’s parental rights would be in the best interest of the children.
The evidence at the final hearing showed the children—ages two years, one
year, and less than five months—were removed from the parents on August 23,
2012, when the Department received “another” intake. The parents had been
participating in family-based safety services due to a previous incident. An
investigator for the Department, Heather Dezomits, went to the family’s residence
and observed various things that concerned her. Dezomits testified that F.H. had a
“large slap mark to her shoulder” that was “raised up” and “fresh.” Only two
people were in the residence that could have caused the mark: the mother and the
father. F.H.’s hair was matted and knotted, and she was “scratching and
scratching” due to head lice. H.H. had bruises on her face and a cigarette burn
between her fingers. According to Dezomits, the parents stated that the children
sometimes ran into the parents’ cigarettes and admitted that they had smoked K2,
an illegal substance, when the children were present.
Dezomits testified that the conditions of the residence on the day of the
initial removal endangered the children. The children’s bedroom contained many
objects that were safety hazards for small children. The kitchen was not clean.
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There were dirty dishes and old food on the dining table and dirty dishes
“everywhere” in the kitchen. The children were eating off the floor. Each child’s
bedding was filthy. The bedding was brown or dark brown where the children’s
bodies had lain.
After the children were removed, the trial court ordered the parents to
complete various tasks, including compliance with a family service plan. The
Department returned the children to the parents on May 31, 2013, but removed the
children again on June 12, 2013. The children’s guardian ad litem made two visits
to the parents’ residence after the children were returned to the parents and before
the parents moved from the residence from which they were evicted. The guardian
ad litem informed the trial court that the children were disoriented and that the
conditions of the residence were deplorable: it was “filthy” and it “stunk.” The
children were dirty and had been sleeping on “filthy” mattresses.
After being evicted on June 6, the parents and their children went to stay
with relatives for a while. At the time of the second removal, they were at the
home of the mother’s mother in “filthy and very unsanitary” conditions. The home
smelled of pet urine and feces, and dog feces was on the floor. The floor looked
like it had not been cleaned in years. The kitchen and the dining area were covered
with trash, food, and other things.
The Department also presented evidence that the parents had anger issues
and that domestic violence occurred between the parents. The parents were
involved in an altercation in a Fort Worth hospital where B.H. was hospitalized.
According to the mother, the parents were under a lot of stress and “just had an
argument that escalated” into a physical altercation. The father admitted at trial
that he had “smacked her in the head.” The Department’s involvement with the
family began with the hospital incident. After the initial removal, the parents were
involved in another altercation in public. Harry Small Jr., a housing authority
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director, testified that the parents were evicted for nonpayment of rent and for
physical violence. On May 13, 2013, Small heard the parents arguing outside the
office; they were “really loud.” The argument continued as the parents walked
down the street. Small watched them from the office. He said that they had
stopped about fifty yards away when the mother “grabbed for” the father. The
father jerked away and started to walk, but the mother “just started hitting him
three or four times.” The father then turned around and backhanded the mother.
Small instructed the office manager to call the police.
With respect to drug use, the mother testified that, after H.H. was born with
“pot” in her system, the mother completed a twelve-step program. The mother
admitted at trial that she had used drugs after completing the twelve-step program;
she admitted to Dezomits that she used K2 while on family-based safety services;
and each parent tested positive “for amphetamines” more than once while this case
was pending. The mother testified that she did not even know what amphetamines
were and that she and the father no longer smoked synthetic marihuana. The father
also tested positive for opiates; he explained that he had taken painkillers that were
not prescribed to him.
The parents did not believe that termination of their parental rights would be
in the children’s best interest. However, the attorney ad litem for the children
disagreed, as did the Department. The children’s attorney ad litem informed the
trial court that it was his position that it would not be in the children’s best interest
to be returned to the parents. The Department’s conservatorship caseworker,
Lorena Jennings, testified that termination of both parents’ rights would be in the
best interest of the children. Jennings testified that the parents had not taken the
courses seriously and had not demonstrated an ability to control their anger,
overcome domestic violence issues, or discontinue drug use. She testified that the
children’s foster parents were “motivated for adoption.” The foster parents
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provided the children with needed structure. The children were well cared for,
happy, healthy, safe, and doing very well in their placement with the foster parents.
The foster parents and the children had bonded, and the children had grown to love
the foster parents. Jennings testified that the parents, unfortunately, were not able
to provide the children with a structured, safe home free of domestic violence and
drug use.
We hold that there was clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that both parents (1) knowingly
placed or knowingly allowed the children to remain in conditions or surroundings
that endangered their physical or emotional well-being or (2) engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered the physical or emotional well-being of the children. FAM.
§ 161.001(1)(D), (E).
Under subsection (D), we examine evidence related to the environment of
the children to determine if the environment was the source of endangerment to the
children’s physical or emotional well-being. In re D.T., 34 S.W.3d 625, 630 (Tex.
App.—Fort Worth 2000, pet. denied). Under subsection (E), the relevant inquiry is
whether evidence exists that the endangerment of the children’s well-being was the
direct result of the parents’ conduct, including acts, omissions, or failures to act. In
re D.O., 338 S.W.3d 29, 33 (Tex. App.—Eastland 2011, no pet.). 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 re D.T., 34 S.W.3d at 634; In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct does not need to be
directed at the child, nor does the child actually have to suffer an injury. In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Domestic violence may constitute
evidence of endangerment. Id.; C.J.O., 325 S.W.3d at 265.
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In this case, there was evidence that the conditions of the parents’ residence
upon initial removal and the conditions of the residence where the children were
living at the time of re-removal endangered the children. The mother agreed that
the conditions of her mother’s house, where the family was staying at the time of
re-removal, were unsuitable. The father testified that her house was “a bad
environment for anybody.” With respect to subsection (E), the evidence showed
that the parents used drugs and committed domestic violence. Such acts
constituted conduct that endangered the children. The evidence is factually suffi-
cient to support the trial court’s finding as to each parent under
Section 161.001(1)(D) and Section 161.001(1)(E). Because a finding that a parent
committed one of the acts listed in Section 161.001(1)(A)–(T) is all that is required
under that statute, we need not address the parents’ remaining arguments regarding
the sufficiency of the evidence to support the trial court’s other findings under
Section 161.001(1). See TEX. R. APP. P. 47.1. The parents’ first issue is overruled.
We also hold that, based on the evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction
that termination of both the father’s and the mother’s parental rights would be in
the best interest of the children. See Holley, 544 S.W.2d at 371–72. We cannot
hold that the findings as to best interest are not supported by clear and convincing
evidence.
Upon considering the record as it relates to the desires of the children, the
emotional and physical needs of the children now and in the future, the emotional
and physical danger to the children now and in the future, the parental abilities of
the parents and the foster parents, the plans for the children by the Department, the
instability of the parents’ home, the stability of the children’s placement, acts and
omissions indicating that the parent-child relationship was not a proper one, the
domestic violence between the parents, violence against the children, and the
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parents’ continued drug use, we hold that the evidence is sufficient to support the
findings that termination of the father’s and the mother’s parental rights is in the
best interest of the children. See id. The parents’ second issue is overruled.
We affirm the trial court’s order of termination.
JIM R. WRIGHT
CHIEF JUSTICE
February 24, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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