in the Interest of A.N.D. and A.T.D., Children ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00165-CV
IN THE INTEREST OF A.N.D. AND A.T.D., CHILDREN
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 56,033-C, Honorable Jack M. Graham, Presiding
September 26, 2013
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
The father of A.N.D. and A.T.D., Arman, appeals the decision of the trial court to
terminate the parent-child relationship existing between him and the children. Arman
contends that the evidence is legally and factually insufficient to find any of the alleged
predicate events required to support termination, and that the evidence is also legally
and factually insufficient to support that termination of Arman‘s parental rights is in the
best interest of the children.1 Disagreeing with Arman, we will affirm the decision of the
trial court.
1
The mother‘s parental rights were terminated by the filing of an affidavit of
relinquishment in this same proceeding. No appeal has been taken by the mother.
Factual and Procedural Background
The efforts of the Texas Department of Family and Protective Services to deal
with the family unit involved in this termination case stretch back to 2004, when the first
case was presented. The initial action was an intake alleging neglectful supervision by
the mother, which alleged that the children in question were being left with other people.
At the time of the initial intake, Arman could not be located. There were subsequent
cases in December 2004 and again in 2005, which again alleged neglectful supervision
of the children by the mother. The 2005 case was ―ruled out.‖ After the 2005 incident,
the Department filed yet another case in March 2006. This filing resulted in the children
being placed in Arman‘s care and custody. The pending case was later closed, and
Arman returned the children to the mother. Then, in May 2007, another case was
opened. At this time, the children were back living with the mother. The record is
unclear about the ultimate disposition of this 2007 case. Next, the Department became
involved again in April 2008, when a report of neglectful supervision was once again
reported. The Department was unable to find Arman at this time.
In November 2009, the Department was called when a report was received of the
mother physically abusing A.T.D. by banging his head against the floor. As regards
Arman at the time of this investigation, the Department‘s testimony was that Arman was
called regarding a possible placement but this was not followed up on because Arman
did not have his own residence and did not feel he had room to take the children. The
Department‘s position was that Arman refused to take the children. On December 18,
2009, the Department was appointed temporary managing conservator of the children.
2
This case was dismissed by the trial court on June 6, 2011. This case was dismissed
after the mother‘s drug screen came back negative for any use of drugs.
Then on July 19, 2011, the Department received an intake on the two children
that resulted from concerns that CASA2 volunteers had regarding the deteriorating state
of the mother‘s mental stability. The specific intake alleged that the children were
known to be going from door to door in the apartment complex where they were lived
searching for food. Additionally, there were reports of different people coming and
going from the mother‘s apartment at different times of the night. This is the referral that
ultimately led the Department to seek to terminate both the mother‘s and Arman‘s
parental rights.
On July 21, 2011, the Department filed its original petition seeking to terminate
Arman‘s parental rights. As predicate grounds the original petition alleged that Arman
had:
1) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-
being of the children,
2) 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.
See TEX. FAM. CODE ANN. § 161.001(1)(D), (E) (West Supp. 2012).3 Subsequently, on
August 7, 2012, the Department filed its first amended petition for termination of
Arman‘s parental rights. In addition to the allegations alleged in the original petition, the
Department alleged that Arman had:
2
Court Appointed Special Advocates
3
Further reference to the Texas Family Code Annotated will be by reference to
―section ____‖ or ―§ ____.‖
3
3) failed to support the children in accordance with his ability during a
period of one year ending within six months of the date of the filing of the
petition,
4) constructively abandoned the children who have been in the permanent
or temporary managing conservatorship of the Department or an
authorized agency for not less than six months and: (1) the Department or
authorized agency has made reasonable efforts to return the children to
the father; (2) the father has not regularly visited or maintained significant
contact with the children; and (3) the father has demonstrated an inability
to provide the children with a safe environment,
5) failed to comply with the provisions of a court order that specifically
established the actions necessary for the father to obtain the return of the
children who have been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a
result of the children‘s removal from the parent under Chapter 262 for the
abuse or neglect of the children.
See id. (F), (N), and (O).
This matter was heard in a bench trial on March 7 and 8, 2013. The
Department‘s case consisted of the various investigators, case workers, and the
supervisor at the Department who had been involved in the case, along with the
children‘s therapists, both in Texas and New Mexico. Additionally, Arman‘s counselor
and the psychologist who performed the psychological evaluation of Arman each
testified. Arman testified in his own behalf. After hearing the evidence, the trial court
found that the Department had proved by clear and convincing evidence that Arman
had committed the predicate acts outlined in section 161.001(1)(D), (E), and (O).
Further, the trial court found that it was in the best interest of the children that Arman‘s
parental rights be terminated. See § 161.001(2). Arman filed a request for findings of
fact and conclusions of law. Arman then filed a motion for new trial which was denied
by written order. The trial court filed written findings of fact and conclusions of law on
May 31, 2013.
4
Arman has perfected his appeal and, in four issues, contests the legal and
factual sufficiency of the evidence to support the trial court‘s rulings that Arman
committed the predicate acts found and the finding that termination is in the best
interests of the children. We will affirm.
Standards of Review
The natural right existing between parents and their children is of constitutional
dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating
this natural right is complete, final, irrevocable, and divests for all time that natural right
as well as all legal rights, privileges, duties, and powers between the parent and child
except for the child‘s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
The Texas Family Code permits a court to terminate the parent-child relationship
if the petitioner establishes (1) one or more acts or omissions enumerated under section
161.001(1), and (2) that termination of the parent-child relationship is in the best interest
of the child. § 161.001. Though evidence may be relevant to both elements, each
element must be proved, and proof of one does not relieve the burden of proving the
other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best interest
of the child must be proved, only one statutory ground is required to terminate parental
5
rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore,
we will affirm the trial court‘s order of termination if legally and factually sufficient
evidence supports any one of the grounds found in the termination order, provided the
record shows that it was also in the best interest of the child for the parent‘s rights to be
terminated. See id.
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2008). ―‗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.‖ § 101.007 (West 2008). This standard, which focuses on whether a
reasonable jury could form a firm belief or conviction, retains the deference a reviewing
court must have for the fact-finder‘s role. In re C.H., 89 S.W.3d at 26.
In reviewing the legal sufficiency of the evidence supporting an order terminating
parental rights, we look at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or
conviction as to the truth of the allegations sought to be established. See In re J.F.C.,
96 S.W.3d at 266. ―To give appropriate deference to the factfinder‘s conclusions and
the role of a court conducting a legal sufficiency review, looking at the evidence in the
light most favorable to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could
do so.‖ Id. In other words, we will disregard all evidence that a reasonable trier of fact
could have disbelieved or found to have been incredible. Id.
6
When reviewing the factual sufficiency of the evidence supporting a termination
order, we determine ―whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction about the truth of the [Department]‘s allegations.‖ In re
C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed
evidence is such that a reasonable finder of fact could not have resolved the disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. ―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, then the evidence is factually insufficient.‖ Id.
Applicable Law and Analysis
Arman contends that the evidence is legally and factually insufficient to support a
finding of a predicate act or omission that would serve as grounds for terminating his
parental rights to the children. The Department counters by pointing to evidence that
the mother had an extensive history of abuse and neglect of the children and that
Arman, although being aware of the mother‘s history, never took steps to intervene or
protect the children. Further, during the only occasion that Arman had the children, he
unilaterally decided he could not take care of them and returned them to the mother.
On another occasion when the Department was going to allow Arman to take the
children, he refused, citing an inability to provide for them. These facts coupled with
Arman‘s instability in housing and employment lead to the conclusion that termination of
Arman‘s parental rights are in the best interest of the children.
7
Predicate Act or Omission
Of the three grounds found by the trial court as supporting termination of Arman‘s
parental rights, two were subsections (D)‘s endangering environment or conditions and
subsection (E)‘s endangering conduct. See § 161.001(1)(D), (E). Evidence concerning
subsections (D)‘s and (E)‘s statutory grounds for termination is interrelated; therefore,
we will consolidate our review of the evidence supporting these grounds. 4 See In re
N.K., 399 S.W.3d 322, 329 (Tex.App.—Amarillo 2013, no pet.); In re I.G., 383 S.W.3d
763, 770 n.6 (Tex.App.—Amarillo 2012, no pet.). Endangerment of the child‘s physical
or emotional well-being is an element of both subsections (D) and (E). See §
161.001(1)(D), (E); see also In re N.K., 399 S.W.3d at 329–30.
―[E]ndanger‖ means ―to expose to loss or injury; to jeopardize.‖ Tex. Dep‘t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although ―‗endanger‘ 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 suffers injury.‖ Id.; see In re P.E.W., 105 S.W.3d 771, 777
(Tex.App.—Amarillo 2003, no pet.) (observing that child ―need not develop or succumb
to a malady‖ in order to prove endangering conditions). In our review, we not only look
at evidence regarding the parent‘s active conduct, but we also consider evidence
4
Indeed, this Court has observed the interrelated nature of evidence that could
support these two statutory grounds for termination: ―Although the focus of subsection
(D) is on the child‘s living environment and not on the parent‘s conduct, parental
conduct may produce an endangering ‗environment.‘‖ In re D.R.J., No. 07-08-00410-
CV, 2009 Tex. App. LEXIS 5231, at *7 (Tex.App.—Amarillo July 8, 2009, pet. denied)
(mem. op.) (citing In re D.T., 34 S.W.3d 625, 633 (Tex.App.—Fort Worth 2000, pet.
denied)). That is not to say, however, that the two subsections require the same
evidence. See In re U.P., 105 S.W.3d 222, 236 n.7 (Tex.App.—Houston [14th Dist.]
2003, pet. denied) (discussing the distinctions between subsections (D) and (E)).
8
showing the parent‘s omissions or failures to act. In re A.B., 125 S.W.3d 769, 777 (Tex.
App.—Texarkana 2003, pet. denied). The Texas Supreme Court has reiterated that
endangering conduct is not limited to actions directed toward the child: ―It necessarily
follows that the endangering conduct may include the parent‘s actions before the child‘s
birth, while the parent had custody of older children, including evidence of drug usage.‖
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see In re T.N., 180 S.W.3d 376, 383
(Tex.App.—Amarillo 2005, no pet.).
The Mother‘s Physical and Emotional Abuse of The Children
The record before us demonstrates a clear pattern of physical and mental abuse
of the children by the mother. Additionally, the record further demonstrates that the
mother suffered from significant episodes of mental instability. The mother was the
parent with physical possession of the children on each of the occasions that the
Department was called to become involved in the family. Further, the record
demonstrates that Arman had not been significantly involved in the lives of the children
for several years prior to the last case opened by the Department. Appellant had lived
in several states at a number of different residences during this period and had an
abysmal track record of employment. He simply was not engaged within the dynamics
of the family.
Arman contends that he was very involved in the lives of his children, yet the
evidence appears to show otherwise. For instance, when the children were placed with
Arman in 2006, he returned them to the mother in 2007. His stated reason for returning
the children was that he could not provide for them. Arman testified that even when he
9
did not have the physical possession of the children he was involved in their lives. Yet,
the mother‘s cousin testified that, at one point, the mother and the children lived with her
for a period of months and she never saw Arman. Further, Arman‘s own testimony
reveals that he was constantly moving in and out of Texas in search of job
opportunities.
During Arman‘s psychological exam by Dr. Edwin Basham, Arman provided
information that led Dr. Basham to express the opinion that the children were, at least,
at risk for being mistreated. Further, Arman told his own counselor, Delois Hinders, that
he was aware that the mother was somewhat emotionally unstable and explosive. In
relation to the mother‘s punishment of the children, Arman told the counselor that the
mother was harsh in her punishment of the children and that the punishment was
inappropriate and punitive in nature. The conclusion drawn by Arman‘s counselor was
that Arman had always known that the mother was harsh as a parent, punitive in her
punishment to the edge of being abusive.
Despite Arman‘s testimony to the contrary, the evidence shows that Arman was
aware of the home life that the children were living in, for he, early on, had been the
recipient of some of the mother‘s violent outbursts. Further, the evidence supports the
proposition that Arman did not take any steps to protect the children, even though he
knew of the mother‘s propensities.
Simply put, there is sufficient evidence to show that Arman was aware of the risk
posed to the children by the mother, and yet, Arman chose to ignore that risk. See In re
S.M.L., 171 S.W.3d 472, 477 (Tex.App.—Houston [14th Dist.] 2005, no pet.) (child
10
endangered when environment creates potential for danger that parent is aware of but
disregards). The record suggests that, not only was Arman aware of the risk posed by
the mother, he, in fact, knew that she had abused the children and yet did nothing to
remove the children from her care. See In re C.M.B., 204 S.W.3d 886, 895 (Tex.App.—
Dallas 2006, pet. denied) (cause of endangerment under (E) must be parent‘s conduct,
evidenced by not only actions of parent but also by omissions of parent); Phillips v. Tex.
Dep‘t of Protective & Regulatory Servs., 25 S.W.3d 348, 354 (Tex.App.—Austin 2000,
no pet.)(holding that a parent‘s failure to act endangered children).
Turning to the issue of Arman‘s own instability, the record paints a picture of a
man who goes from job to job living where he can in a catch-as-catch-can existence.
Much of the time Arman is not even able to take care of himself and, when asked by the
psychologists and the counselor about why he is living thusly, Arman has no real
answer. Both the psychologist, Dr. Basham, Arman‘s counselor, Hinders, and the
Department‘s supervisor, Katie Klaehn, all opined that Arman‘s instability would prevent
him from being able to be the primary caregiver for the children. Conduct which
subjects children to a life of uncertainty and instability endangers the physical and
emotional well-being of the children. In re M.C., No. 02-08-00146-CV, 2008 Tex. App.
LEXIS 8913, at *3 (Tex.App.—Fort Worth Nov. 26, 2008, no pet.) (mem. op.) (citing In
re R.W., 129 S.W.3d 732, 738-39 (Tex.App.—Fort Worth 2004, pet. denied)).
When we view the evidence in the light most favorable to the trial court‘s finding,
as we must do in a legal sufficiency review, we find that a reasonable trier of fact could
have formed a firm belief or conviction as to the truth of the allegations sought to be
established. See In re J.F.C., 96 S.W.3d at 266. Further, our review of the entire
11
record convinces us that a factfinder could reasonably form a firm belief or conviction
about the truth of the [Department]‘s allegations. In re C.H., 89 S.W.3d at 25. The
application of the record before us to the guiding legal principles regarding subsections
(D) and (E) result in our determination that the evidence is both legally and factually
sufficient to support the trial court‘s determination that Arman had committed the
predicate grounds alleged in the Department‘s amended petition. See § 161.001(1)(D),
(E). Further, our review convinces us that this is so by clear and convincing evidence.
See In re J.F.C., 96 S.W.3d at 263; § 101.007.
Arman‘s position is that he was involved in the children‘s lives and, to prove this,
he offered his testimony. Further, Arman contends that the only time he was not
involved was during the last case brought by the Department, and this was due to the
Department making it almost impossible for him to see the children. Finally, Arman
contends that he did not know that the mother was physically abusive to the children,
and he faults the Department for returning the children to the mother after the 2009
case was opened. The problem with most of Arman‘s contentions is that they are
nothing more than conflicts in the testimony and, as such, the conflicts must be resolved
by the trier of fact, in this case, the trial judge. See In re J.F.C., 96 S.W.3d at 266. The
trial judge has resolved these conflicts against Arman and, when we apply the
standards for review for the legal and factual sufficiency of the evidence, we cannot say
that the trial court erred in its determination. Appellant‘s issues one and two are
overruled. Inasmuch as only one predicate ground is necessary to support termination
of parental rights, we will not address the remaining statutory grounds found by the trial
court. See In re A.V., 113 S.W.3d at 362.
12
Best Interest of the Children
There is a strong presumption that a child‘s interest is best served by preserving
the conservatorship of the parents; however, clear and convincing evidence to the
contrary may overcome that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(per curiam). The Texas Supreme Court has recognized a non-exhaustive list of factors
that are pertinent to the inquiry whether termination of parental rights is in the best
interest of the child: (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
which may indicate that the existing parent-child relationship is not a proper one, and (9)
any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976); see also TEX. FAM. CODE ANN. § 263.307 (West 2008)
(providing extensive list of factors that may be considered in determining child‘s best
interest). In examining the best interest of the child, we may consider evidence that was
also probative of the predicate act or omission. See In re C.H., 89 S.W.3d at 28. The
best interest determination may rely on direct or circumstantial evidence, subjective
facts, and the totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex.App.—
Amarillo 2011, no pet.).
The Department need not prove all nine Holley factors, and the absence of
evidence relevant to some of those factors does not bar a finding that termination is in
13
the child‘s best interest, especially in the face of undisputed evidence that the parental
relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley
factor is controlling, and evidence of one factor may be sufficient to support a finding
that termination is in the child‘s best interest. In re A.P., 184 S.W.3d 410, 414
(Tex.App.—Dallas 2006, no pet.)
From the testimony heard by the trial court, it is apparent that the children desire
to live with, and be adopted by, their aunt Clarissa and her significant other, Shawn.
Both the children‘s current counselor and the previous counselor testified that they are
not bonded to Arman but have become attached and are becoming bonded to Clarissa
and Shawn. While there is evidence that the children love their father, as demonstrated
by letters written to the trial court so expressing this sentiment, there is much
countervailing evidence that the boys desire stability that is not available from Arman.
This desire for stability appears to be one of the reasons for the attachment to and
bonding with Clarissa and Shawn. Further, the sisters of these two children are already
adopted by Clarissa. Accordingly, the desires of the children appear to weigh toward
termination being in the best interest of the children.
Evidence regarding the emotional and physical needs of the children now and in
the future made up most of the testimony heard. Likewise, in that same testimony, the
subject of emotional and physical danger to the children was covered extensively.
Accordingly, these two considerations will be viewed together. We begin with the
observation that Arman‘s lack of involvement in the children‘s life in the past and his
failure to protect the children in the past may well be a harbinger of things to come. See
A.S. v. Tex. Dep‘t of Family & Protective Servs., 394 S.W.3d 703, 715 (Tex.App.—El
14
Paso 2012, no pet.) (citing May v. May, 829 S.W.2d 373, 377 (Tex.App.—Corpus Christi
1992, writ denied)). This factor weighs in favor of the best interest of the children being
served by termination.
The parental abilities of Arman have been demonstrated to be virtually
nonexistent. According to the record, at each opportunity to step forward as a parent,
Arman has either returned the children to the mother or simply refused to accept his
responsibility. Additionally, the evidence from the psychologist and his counselor clearly
suggest that Arman can barely care for himself let alone care for the children. See id.
Arman contends that he has improved and points to Court to his recent changes in
housing and the completion of some of the parts of the parenting plan. While he is to be
commended for improvement, this evidence does not mandate that we find that the best
interest of the children would not be served by termination. See In re J.W.M., 153
S.W.3d 541, 549 (Tex.App.—Amarillo 2004, pet. denied). Our view of the evidence is
that Arman‘s lack of ability as a parent weighs heavily in favor of a finding that
termination is in the best interest of the children.
The record clearly demonstrates that the Department has very specific plans for
the children. These are to place the children for adoption with Clarissa and Shawn.
Further, as discussed previously, the children support these plans. In juxtaposition,
Arman is very unsure of his plans. This fact and the testimony of the children‘s Texas
counselor that the children need to be with their sisters lend strong weight in favor of
termination.
15
The only evidence before the trial court regarding the stability of the proposed
adoptive home was that it was a very stable home and that Clarissa and Shawn were
doing all the things necessary to bring stability and bonding into the children‘s lives.
Additionally, there was significant testimony regarding the improvement of the children
since they began living with Clarissa and Shawn. These facts weigh heavily in favor of
the proposition that termination is in the best interest of the children.
As to the acts or omissions which might indicate that the parent-child relationship
is not proper, these have been thoroughly discussed earlier in this opinion. Suffice it to
say that these weigh heavily in favor of termination.
Arman‘s consistent theme throughout the trial was that it was the interference of
the Department that caused him to have no real relationship with the children, more
especially after the last referral. However, most of this evidence was conflicting, and it
is up to the trier of fact to resolve those conflicts. See In re J.F.C., 96 S.W.3d at 266. In
a legal sufficiency review, we view the evidence in the light most favorable to the fact-
finder‘s finding. Id. In resolving the conflicting testimony we remember that, in
reviewing the factual sufficiency of the evidence, we determine whether a reasonable
fact-finder could have resolved the conflicting testimony in such a manner as necessary
to support its finding; if so, then the evidence is factually sufficient. See In re C.H., 89
S.W.3d at 25. Accordingly, we find the evidence to weigh in favor of termination being
in the best interest of the children.
In summation, when we look at the evidence as applied to the various Holley
factors, we find that the best interest of the children is served by terminating the parent-
16
child relationship existing between the children and Arman. Accordingly, Arman‘s issue
to the contrary is overruled.
Conclusion
Having overruled Arman‘s issues, we affirm the order terminating Arman‘s
parental rights.
Mackey K. Hancock
Justice
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