in the Interest of B. C., T. P., C. P. and T. P., Children ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00087-CV
IN THE INTEREST OF B. C., T. P., C. P., AND T. P., CHILDREN
On Appeal from the 402nd District Court
Wood County, Texas
Trial Court No. 2011-458
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
In a suit brought by the Texas Department of Family and Child Protective Services
(Department), the parental rights of the Mother pertaining to her children, B.C., T.P.1, C.P., and
T.P.2, were terminated, and the parental rights of the Father to the children, T.P.1, C.P., and
T.P.2, were terminated. 1 As mentioned hereinafter, the trial court found that the evidence clearly
and convincingly proved that Mother and Father (1) had knowingly placed or knowingly allowed
the children to remain in conditions or surroundings which endangered the physical or emotional
well-being of the children, (2) had engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangered the physical or emotional well-being of the
children, and (3) 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. See TEX. FAM.
CODE ANN. § 161.001(1)(D), (E), (O) (West Supp. 2012). It also found termination to be in the
best interests of the children.
On appeal, Mother and Father challenge the legal and factual sufficiency of the evidence
as to the first two grounds for termination mentioned above. We affirm the trial court’s
judgment of termination.
1
For purposes of confidentiality, the children will be referred to as B.C., T.P.1, C.P., and T.P.2. The mother of the
children will be referred to as Mother, the father of T.P.1, C.P., and T.P.2 as Father. B.C.’s biological father (to
whom we refer as “Justin” and whose parental rights were terminated in the same action from which this appeal
arises) did not join in the appeal; accordingly, the question of his termination is not before us. TEX. R. APP. P. 9.8.
“Father” has no parental rights to B.C., and in the circumstances where we hereafter discuss parental rights to B.C.
generically as one of the “children,” the application is necessarily limited to B.C.’s relationship to “Mother.” At the
time of the termination hearing, B.C. was nine years old, T.P.1 was four, C.P. was three, and T.P.2 was two.
2
Factual History
The attention of the Department was first directed toward this family in February 2011,
after the Department received a referral stemming from a December incident where a dog had
been reported to have attacked one of the children. A Department supervisor, June Tyler,
testified that the Department ruled out parental neglect concerning the attack. However, the
Department had two remaining concerns: (1) whether the children were properly supervised
while playing outside; and (2) the children were not current on their immunizations. Tyler also
entertained concerns about Father’s ability to care for his children due to his disability and about
the “unmet medical and mental health needs” of Mother. There was apparently some concern
about substance abuse by both of the parents.
The trial court ordered both parents to abstain from drugs and alcohol, submit to
psychological and drug assessments, attend counseling sessions, attend parenting classes, attend
the meetings of Narcotics Anonymous (NA) at least once per week, and obtain and maintain
stable employment.
In March 2011, Mother and Father began the Department’s prescribed counseling
through the Family-Based Safety Services (FBSS) program, though they later (advising Tyler
that they did not need counseling) ceased attendance at counseling and parenting classes. Father
was then arrested and incarcerated for a month due to a violation of his community supervision
on a criminal violation not directly related to the children. Tyler testified that the family
experienced an inability to pay rent and were forced to move repeatedly and that Mother and
Father made little or no progress completing the Department’s prescribed counseling and
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parenting services. The couple had to get help from a local church to repair their car and find a
place to live.
About six months later, in June 2011, it came to the attention of the Department that both
Mother and Father had been arrested in neighboring Rains County for public intoxication. Joel
Williams, a Department investigator, testified that he had been called by authorities after the
couple had been found (apparently intoxicated) with their car on the side of the road with the
children inside the automobile. Because the parents each appeared intoxicated and the police
could not determine who had been driving the car, both parents were arrested for public
intoxication. Williams found reason to believe that the parents were negligent in their
supervision of the children because both were intoxicated in the circumstances as described and
even though all four children were in the car, there was only one car seat.
The children were placed with the children’s paternal grandmother for a month before
being placed with their aunt and uncle for more long-term care. Williams explained to Mother
and Father that the placement agreement provided that the grandmother would care for the
children “for a duration of time until the parents could get with their [FBSS] caseworker and
make sure that the appropriate safety measures were being taken.”
Tyler was unsuccessful in attempts to persuade Mother and Father to participate in and
complete the parenting classes and counseling; after the arrests for public intoxication, Tyler
determined that “there was no longer anything [FBSS] could do for them.” She also had
concerns regarding the couple’s previous drug and alcohol history. As a part of that history,
Tyler pointed out that in 2006, Mother was found passed out behind the wheel of a car with B.C.
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in the vehicle and in 2009, Father had been charged with possession of marihuana. Tyler
testified, “My concern was that although we were offering services and intervening, they were
found on the side of the road intoxicated, still putting their children in the same situation that
they’ve been on probation for. . . . They’re not showing anything they learned from probation or
benefiting from what we’re trying to offer.” On August 21, 2011, the Department filed a petition
to remove the children.
Department case worker Julie Tolsom was assigned to the case. She testified that Mother
and Father had completed their parenting classes, but they did not participate in their court-
ordered counseling. Mother testified that she attended all her counseling sessions, though she
did miss some when her grandmother passed away. Mother said she was released from
counseling. Tolsom pointed out that during some of the sessions which Father attended, he
simply slept on the couch rather than participating.
Father failed to obtain a psychological evaluation as he had been ordered, although
Mother submitted to hers. Although Mother was required to maintain appointments with her
psychiatrist and to take her medication, she only attended six sessions; despite the fact that
Mother had said she was taking her medications, Tolsom was unable to verify that she had.
Mother testified that she was taking her medications and had shown her counselor the bottle.
The couple were also required to attend NA meetings, and, according to Tolsom, Mother
and Father provided proof that they attended NA meetings four or five times per month from
early January 2012 through the end of June 2012. Although Tolsom testified as to skepticism
over the regularity of attendance by both Mother and Father at these meetings, Mother and
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Father attempted to show efforts at compliance. Overall, the evidence was not overwhelming in
favor of either position.
Mother and Father told Tolsom that they had finished a drug and alcohol assessment, but
they never provided the proof of the assessment that they were required to provide. Tolsom
testified that during the case, Mother tested positive for the use of cocaine, Father was arrested
for driving while intoxicated (DWI), and both Mother and Father had tested positive for the use
of marihuana.
Father was employed “on and off throughout this case,” but only provided proof of
employment once, a job he lost the very next week. Mother testified that “he always kept a job”
and that if he was let off one job, he would go get another one. She claimed that Father’s income
paid all of their bills, but she also admitted that they had some financial problems.
Mother provided Tolsom with proof that she was employed at the Subway sandwich shop
in Quitman, Texas, as of July 25, 2011, but she was “let go” in October and failed to inform
Tolsom of that fact. Mother told Tolsom that she had gotten another job at a Subway in
Winnsboro, Texas, but she never provided Tolsom with verification of the employment, and
Mother said she had to leave that job because they were not allowing her to work enough hours.
Tolsom indicated that Mother had told her that she did not see any reason to look for another job,
but Mother denied ever having made that statement. Tolsom had never been made aware that
Mother held any other jobs. Mother testified that she had worked on some occasions with her
father doing tree service work.
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Mother and Father were unable to maintain stable housing. They moved at least five or
six times during the pendency of the Department’s case. If they had an appropriate home for the
children to live in at the time of the termination hearing, Tolsom was unaware of it. Tolsom
believed that the termination of Mother and Father’s parental rights was in the best interests of
the children. Tolsom testified that Mother and Father were bonded with the children and vice
versa.
Amy McDonald, a case supervisor for the Court Appointed Child Advocates (CASA),
was the guardian ad litem for the children. In her opinion, termination of the couple’s parental
rights was in the best interests of the children. She noted that their case had been open for two
years and no significant progress for the benefit of the children had been made—“[t]hey have no
home, no income, no ability to provide for the kids.” When the children first came into foster
care, they had “significant behavioral and developmental issues.” Mother and Father both failed
to comply with the court’s orders regarding their service plan. In her opinion, the actions of
Mother and Father endangered the children throughout the pendency of the case. Due to the
ongoing alcohol and drug use of the parents, she believed the children would be substantially
harmed if they were placed back in the home of Mother and Father.
Father testified that at the time of the termination hearing, he was incarcerated for
violation of the terms of community supervision upon which he had been placed after a charge of
criminal mischief. He admitted that there were also charges pending against him in Upshur
County, Texas, for DWI and evading arrest. Regarding the June 2011 public intoxication
incident, he testified that he had been driving with Mother, but had only consumed one-half of a
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beer and he claimed he was not intoxicated. However, he pled guilty to the charge and was
sentenced to time served.
Father admitted that he refused to submit to the psychological assessment and testified
that while he attended some of the counseling sessions, he “kept losing jobs with all the stuff [he]
had to do.” He did not have a car and found attending the classes and counseling sessions to be
difficult. At the time of the hearing, he was employed with a construction job. He admitted that
he had not ceased drinking and still did not have a stable home or income for the children.
However, he testified that he had enough money to pay his bills, and the only reason they kept
moving was because he was trying to find a home that would satisfy the demands of the
Department. At the time of the hearing, although Father was incarcerated, Mother was living at
the home of his mother.
After listening to the evidence, the trial court found it supported the statutory grounds for
termination and determined that termination was in the children’s best interest.
Analysis
Sufficient evidence supports termination
The trial court found by clear and convincing evidence that Mother and Father knowingly
placed or knowingly allowed the children to remain in conditions or surroundings which
endangered the physical or emotional well-being of the children (TEX. FAM. CODE ANN
§ 161.001(1)(D)); engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional well-being of the children (TEX.
FAM. CODE ANN. § 161.001(1)(E)); and failed to comply with the provisions of a court order that
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specifically established the actions necessary for them to obtain the return of the children (TEX.
FAM. CODE ANN. § 161.001(1)(O)). The trial court also found that termination of the parental
relationships was in the best interests of the children.
On appeal, Mother and Father argue that the evidence is legally and factually insufficient
to support the trial court’s findings under Section 161.001(1)(D) and (E), and the finding that
termination is in the children’s best interests.
“Along with a best interest finding, a finding of only one ground alleged under Section
161.001(1) is sufficient to support a judgment of termination.” In re D.W., 353 S.W.3d 188, 194
(Tex. App.—Texarkana 2011, pet. denied) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);
In re K.G., 350 S.W.3d 338 (Tex. App.—Fort Worth 2011, pet. denied)). Here, the parents
failed to challenge the trial court’s findings under Section 161.001(1)(O). Therefore, we must
accept and affirm the trial court’s factual findings under subsection (1)(O) (i.e., that Mother and
Father failed to comply with the provisions of a court order that specifically established the
actions necessary for them to obtain the return of children 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 parents under Chapter 262 for the abuse or neglect of the children).
See TEX. FAM. CODE ANN. § 161.001(1)(O). Based upon that established finding, we must
affirm the trial court’s order of termination if termination is in the children’s best interests. 2
2
Because the parents failed to challenge the trial court’s findings under Section 161.001(1)(O), we need not
determine if the trial court’s findings under subsections (1)(D) and (E) are also supported by legally and factually
sufficient evidence.
9
In determining the best interests of the child, a number of factors have been considered,
including (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; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976).
The list is not exhaustive, but simply indicates considerations that have been or could be
pertinent. Id. However, the best interest of the child neither requires proof of any unique set of
factors nor limits proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—
Fort Worth 2001, no pet.). There is no requirement that the party seeking termination prove all
nine factors. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The analysis of evidence relating to one
factor may be adequate in a particular situation to support a finding that termination is in the best
interest of the child. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.).
Evidence supporting the termination of parental rights is also probative of best interest. C.H., 89
S.W.3d at 28. The Holley test focuses on what is in the best interest of the child, not on the best
interest of the parent. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,
86 (Tex. App.—Dallas 1995, no writ).
Amy McDonald, the CASA supervisor over this case, spoke with nine-year-old B.C.,
who indicated a desire to live with Mother and Father. According to McDonald, the other
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children were too young to understand the import of the court proceedings. Tolsom testified that
termination would be hard on the children emotionally, “[p]robably more than hard[,]” and that
the children and both parents are bonded. Tolsom went on to relate that the children “have
psychiatric needs. They have emotional needs that cannot be addressed without them having a
family.” When the children were placed with a relative, that relative subsequently requested that
the Department retrieve the children because they were disruptive (the behavior of the children
being a factor in the failure of the Department to achieve a long-term placement of the children).
Tolsom testified, nonetheless, that in the current placement, the “children’s psychiatric issues
have been addressed, and they’re doing really well.”
Evidence concerning the poor parenting abilities of Mother and Father and their failure to
make use of available programs suggests that termination is in the children’s best interests. The
record reveals that both parents continued to use illicit drugs and alcohol, even after they were
made aware that their parental rights were in jeopardy. 3 At the time of the termination hearing,
Father was incarcerated for an alcohol-related community supervision violation, a situation that
would render him unable to care for the children if they were returned to him. 4 During the
Department’s case, Mother tested positive for use of cocaine and both parents tested positive for
marihuana use. Also during the Department’s case, Mother and Father were arrested for public
intoxication after they were found with the children in a car on the side of the road, the car not
3
Parental drug abuse is a factor in analysis of a child’s best interest. In re M.R., 243 S.W.3d 807, 820 (Tex. App.—
Fort Worth 2007, no pet.).
4
A parent’s inability to provide adequate care for his children, lack of parenting skills, and poor judgment may be
considered when looking at the children’s best interests. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth
2003, no pet.).
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being equipped with necessary safety equipment for transport of the children. During the period
of time when the children had been removed from the home, Tolsom drove the parents from her
office to visit the children in Tyler, Texas. Upon returning, the parents got into their own vehicle
and drove away only to be stopped by the police a short distance away and arrested because
Father had an open alcohol container in the car and Mother had an outstanding warrant for
failure to appear. While Mother has made some progress in counseling and proper medication,
Father has refused to quit drinking and to submit to the prescribed alcohol and drug assessment.
Both Mother and Father completed the court-ordered parenting classes, but there is
evidence that the Father’s employment is sporadic and the Mother is unemployed. The parents
are unable to provide a stable home, having moved several times during the Department’s case.
At the time of the final hearing, Father was incarcerated and Mother was residing in the home of
her mother-in-law. The fact that neither parent was able to point out any kind of specific plan for
the children if they received custody weighs in favor of termination. See In re S.M.L.D., 150
S.W.3d 754, 761 (Tex. App.—Amarillo 2004, no pet.). Although the children were in what was
designated as a “foster/adopt home,” the adults in that home were unwilling to adopt the four
children; hence, the children were not then in an adoptive or long-term placement, although the
Department was seeking a single adoptive placement for all four children.
Based upon this fact circumstance, a fact-finder could have formed a firm belief or
conviction that termination of Mother’s and Father’s parental rights was in the best interests of
the children. Accordingly, we hold that the evidence is legally and factually sufficient to support
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the trial court’s finding that termination of their parental rights was in the children’s best
interests.
We affirm the trial court’s order of termination.
Bailey C. Moseley
Justice
Date Submitted: December 4, 2012
Date Decided:: January 9, 2013
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