A. S. v. Texas Department of Family and Protective Services ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
A.S., §
No. 08-12-00255-CV
Appellant, §
Appeal from the
v. §
65th Judicial District Court
TEXAS DEPARTMENT OF FAMILY §
AND PROTECTIVE SERVICES, of El Paso County, Texas
§
Appellee. (TC#2011CM838)
§
OPINION
A.S. (“A.S.” or Appellant”) appeals the involuntary termination1 of his parental rights as
to D.M., a minor child. 2 In five issues, A.S. argues that the evidence was legally and factually
insufficient to support termination of parental rights pursuant to: (1) Texas Family Code
§§ 161.001(1)(D) and (E); (2) Texas Family Code § 161.001(1)(N); (3) Texas Family Code
§ 161.001(1)(O); (4) Texas Family Code § 161.001(1)(Q); and (5) on best interest grounds. We
affirm.
PROCEDURAL BACKGROUND
The original petition in this case was filed on February 7, 2011. In February 2011, the trial
court convened an adversary hearing under Chapter 262 of the Texas Family Code,3 entered
1
Appeals from a judgment terminating parental rights are accelerated. See TEX.R.APP.P. 28.4. The Texas
Supreme Court has determined that an appellate court should dispose of these appeals within 180 days after the notice
of the appeal is filed. TEX.R.JUD’L ADMIN 6.2(a). The Court appreciates the efforts of counsel for Appellant and
the Texas Department of Family and Protective Services in filing their respective briefs in a timely manner in this
super-accelerated format.
2
Pursuant to TEX.R.APP. P. 9.8, we shall refer to the subject child as “D.M.,” the subject child’s father as “A.S.,” the
subject child’s mother as “C.M.,” D.M.’s siblings “J.M.” and “Ci.M.,” and A.S.’s common-law-wife as “L.R.”
3
Referred to herein as “the Family Code.”
temporary orders for the care and custody of the minor children D.M., J.M. and Ci.M., and named
the Texas Department of Family and Protective Services (“the Department”) as temporary
managing conservator. Prior to the final hearing, the parties met and reached a mediated
settlement agreement as to C.M., which did not require termination of her parental rights. The
settlement agreement was later approved by the trial court.
The Department sought termination of A.S.’s parental rights at a trial held on August 1,
2012. 4 Following the bench trial on August 3, 2012, A.S. filed his notice of appeal. On
August 8, 2012, the trial court found clear and convincing evidence to support termination on each
of the grounds alleged, and that termination was in the best interests of the minor child D.M. The
order appointed the Department as the children’s permanent managing conservator and named
C.M. possessory conservator.
FACTUAL BACKGROUND
D.M. was born in 2010, and was one year old at the time of the trial. When he was born,
both D.M. and C.M. tested positive for marijuana and crack cocaine. Priscilla Fonseca (“Ms.
Fonseca”) was the caseworker assigned to the case by the Department. She testified that the
minor children, including D.M., were placed in foster case because of C.M.’s negligent
supervision of J.M. and Ci.M., and for medical neglect of D.M. C.M. had been residing at
Aliviane Drug Treatment Center (“Aliviane”) and left the children at Aliviane for longer than
twenty-four hours without returning. Ms. Fonseca testified that the children suffered the effects
of C.M.’s substance abuse for years while they were with her. At that time, A.S.’s location was
unknown to the Department and A.S. was not involved in the in-home services case. The
4
The court also terminated the parental rights of the respective fathers of Ci.M. and J.M. Only A.S. appealed.
2
Department located A.S. in March of 2011. Ms. Fonseca testified that when she told A.S. that
D.M. was in the temporary managing conservatorship of the Department, he “wanted a paternity
test” because C.M. had relationships with multiple men. A.S. did not ask where D.M. was placed
or request visitation.
According to A.S., he had a brief relationship with C.M. and was not advised that she was
pregnant with D.M. until seven months into the pregnancy. A.S. learned of the pregnancy from
C.M.’s uncle, and that C.M. told her grandmother that D.M. was A.S.’s child. The DNA test
results established A.S. as the biological father of D.M. in July of 2012.
Ms. Fonseca stated that she scheduled meetings with A.S. in May and June of 2011, but he
did not appear and failed to contact her. A.S. did not provide the Department with a schedule
indicating when he would be in town. The Department ultimately prepared three Family Service
Plans (“Service Plan”), pursuant to Section 262.103 of the Family Code, which required A.S., in
part, to present himself to the court and to remain in contact with the Department. The court
ordered A.S. to comply with the Service Plans.
At the time D.M. was born, A.S. was employed as a truck driver. A.S. first had contact
with D.M. approximately two-and-a-half months after D.M. was born. Since that time, A.S.
never saw, visited, or spoke to D.M. When asked at trial why he did not have contact with D.M.,
A.S. stated that he was “on the road most of the time” and that A.S.’s family “didn’t want me to
[sic] close to [C.M.’s] family” because “they’re nothing but drug users and alcoholics.”
Since D.M.’s birth A.S. has not provided financial support for D.M. A.S. testified that
while his family has purchased items for D.M., they did not provide these items to him, fearing that
C.M. would sell them. A.S. testified that he did not provide any relative placements for D.M.
3
when he was first contacted by the Department because he was unsure of paternity. He further
testified that C.M. has asked him for money but that he “wasn’t going to give her money.” A.S.
admitted that he knew C.M. had been abusing alcohol and drugs, including marijuana and crack
cocaine.
Ms. Fonseca testified that A.S. was incarcerated for “assaults on past girlfriends.” One of
the victims of the assaults was L.R. Ms. Fonseca testified that there were several protective
orders against A.S. filed by L.R. and another woman.5 A.S. testified that he pled guilty to various
charges “because I was already tired with all the postponements.”
A.S. stated that was given a seven year sentence on a 2009 assault, and another seven year
sentence to run concurrently for a 2010 assault. A.S. admitted to: (1) a theft of property
conviction for theft from a Target store for which he received a 180 day jail sentence; (2) a
conviction of the state jail felony of criminal mischief for which he was sentenced to one year in
TDCJ, to run concurrently with his other sentences; (3) a conviction of the third degree felony of
“Assault Causes Bodily Injury Family/Household” for which he was sentenced to seven years in
TDCJ, to run concurrently; (4) and a conviction of the third degree felony of “Assault
Family/Household Member with Previous Conviction” against L.R. for which he was sentenced to
seven years in TDCJ, to run concurrently with other sentences. Another exhibit introduced at trial
showed an agreed ten-year protective order against A.S. by another woman, M.P. According to
A.S., his earliest parole date is February of 2013, but he has no certain release date.
Ms. Fonseca noted that prior to his incarceration, A.S.: (1) failed to visit D.M.; (2) failed
to pay any support for D.M.; (3) did not ask for placement of D.M.; (4) did not maintain contact
with the Department; and (5) did not offer any relative placement options for D.M. A.S. testified
5
A.S. disputed Ms. Fonseca’s testimony.
4
that he called his initial caseworkers on various occasions. While he was incarcerated, a new
Service Plan was prepared requiring A.S. to maintain contact with the Department and to inquire
about D.M. A.S. wrote one letter to Ms. Fonseca in July 2012, but made no further written or
verbal inquires about D.M.
A.S. conceded he has an anger problem, but that he had not attended any anger
management classes despite his assault charges and protective orders, and that he did not sign up
for available anger management classes while in jail.
In March of 2012, while he was incarcerated, A.S., for the first time, provided a family
placement option for D.M.6 A.S. proposed L.R., whom Ms. Fonseca initially believed was A.S.’s
girlfriend, but for whom A.S. had no contact information. Ms. Fonseca testified that A.S. wanted
to wait and see if paternity was established before L.R. was considered for placement. After
paternity was established in July 2012, A.S. again offered L.R. as a possible placement, but
claimed that L.R. was his common-law wife.7 A.S. wanted L.R. as a placement, even though A.S.
was no longer in a relationship with L.R., because she was financially able to care for D.M.
However, A.S. conceded that L.R. had never met D.M. The Department conducted a home visit
to L.R.’s residence, but determined that D.M. would not be placed with L.R. because: (1) there
was no relationship between D.M. and L.R.; (2) there was “[a] lot of domestic violence in the
home” between A.S. and L.R., including the physical altercations which led to A.S.’s
incarceration; (3) L.R. could only care for one child; and (4) the Department did not want to
separate D.M. from his siblings. A.S. also proposed B.S., the mother of some of his other
6
A.S. claimed that he gave placement options to the Department prior to his incarceration, however the trial record
reflects that he did not do so until after he was incarcerated.
7
A.S. testified that L.R. had been his common-law wife for three and a half to four years, but that he had been living
with M.P. following an argument with L.R. so that A.S. “wouldn’t pick up another case.”
5
children, as a possible placement, but wanted to talk to B.S. before he provided her contact
information to the Department. A.S. admitted that none of the people he proposed as placements
for D.M. had ever met D.M.
Throughout the pendency of the case, D.M. remained in foster care with his siblings. At
the time of trial, a home study was being conducted on maternal cousins for potential placement of
the children. Ms. Fonseca and the Court Appointed Special Advocate (“CASA”) for the children,
Norma Montes (“Ms. Montes”), both felt it was in the best interests of the children for them to
remain together. Ms. Montes testified that D.M. was non-verbal and unable to express his
desires. Ms. Montes testified that A.S. was aware that D.M. could be his son and that A.S. left
D.M. with C.M., who A.S. knew was involved with drugs. Ms. Montes further testified that A.S.
should have done more if he had concerns about D.M. Ms. Fonseca testified that A.S. cannot
provide a safe environment for D.M. and that he has never established a relationship with D.M.
A.S. also agreed that D.M. should not be separated from his siblings. While conceding
that he has never supported D.M., A.S. insisted that he has not done anything, or failed to do
anything, contrary to the best interests of D.M.8
DISCUSSION
In five issues, A.S. argues that the evidence was legally and factually insufficient to
support termination of parental rights pursuant to: (1) Texas Family Code §§ 161.001(1)(D) and
(E); (2) Texas Family Code § 161.001(1)(N); (3) Texas Family Code § 161.001(1)(O); (4) Texas
Family Code § 161.001(1)(Q); and (5) on best interest grounds.
Standard of Review
8
A.S. admitted that he had seven children with three different women. He testified that he pays child support, but not
while incarcerated.
6
In a proceeding to terminate parental rights, the petitioner must demonstrate by clear and
convincing evidence that: (1) the parent committed one or more of the acts specifically set forth
in Texas Family Code § 161.001(1) as grounds for termination; and (2) that termination is in the
best interest of the child. See TEX.FAM.CODE ANN. § 161.001 (West Supp. 2012). “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.” TEX.FAM.CODE ANN. § 101.007 (West 2008); see In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002); see also In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)(contrasting the standards
applied in termination proceedings and the standards applied in modification proceedings). We
strictly scrutinize termination proceedings and construe any statutes authorizing involuntary
termination in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985). “Only
one predicate finding under section 161.001(1) is necessary to support a judgment of termination
when there is also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d
355, 362 (Tex. 2003); TEX.FAM.CODE ANN. § 161.001(1); In re D.M., 58 S.W.3d 801, 813
(Tex.App.--Fort Worth 2001, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex.App.--San Antonio
2000, no pet.).
When reviewing legal sufficiency challenges to termination findings, we consider all of 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 that its finding was true.” In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005), quoting In re J.F. C., 96 S.W.3d at 266. We give deference to the fact
finder’s conclusions and presume the fact finder resolved any disputed facts in favor of its
findings, so long as a reasonable fact finder could do so. Id.; In re J.F. C., 96 S.W.3d at 266. We
7
disregard any evidence that a reasonable fact finder could have disbelieved, or found to have been
incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C.,
96 S.W.3d at 266.
In reviewing the evidence for factual sufficiency, we must give due deference to the fact
finder’s findings, and we cannot supplement such judgment with our own. In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006). “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.” In re H.R.M., 209 S.W.3d at 108, quoting In re J.F.C., 96 S.W.3d at 266.
Statutory Grounds for Termination - Sections 161.001(1)(D) and (E)
A.S. first asserts that the evidence is legally and factually insufficient to support
termination of his parental rights under Sections 161.001(1)(D) and (E) of the Family Code. A.S.
contends that there is no evidence that he knew or could have known that D.M. was being
medically neglected. A.S. further argues that he did not know the child was biologically his, and
that “it cannot be said that [A.S.] left the children in the care of persons likely to endanger the
children based on what was known to him at the time that he left the home.”
Sections 161.001(1)(D) and (E) provide that the court may order termination of the
parent-child relationship if the court finds clear and convincing evidence that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child;
TEX.FAM.CODE ANN. § 161.001(1)(D) and (E).
Both (D) and (E) use the term “endanger.” “To endanger” means to expose a child to loss
8
or injury or to jeopardize a child’s emotional or physical health. See In re M.C., 917 S.W.2d 268,
269 (Tex. 1996); Walker v. Tex. Dep’t of Family and Protective Services, 312 S.W.3d 608, 616–17
(Tex.App.--Houston [1st Dist.] 2009, pet. denied); Robinson v. Tex. Dep’t of Protective &
Regulatory Servs., 89 S.W.3d 679, 686 (Tex.App.--Houston [1st Dist.] 2002, no pet.), citing Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). A child is endangered when
the environment creates a potential for danger that the parent is aware of but consciously
disregards. See In re M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.--Fort Worth 2009, no pet.); In re
S.M.L., 171 S.W.3d 472, 477 (Tex.App.--Houston [14th Dist.] 2005, no pet.). The term means
“more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment . . . . ” Boyd, 727 S.W.2d at 533. While endangerment often involves physical
endangerment, the statute does not require that conduct be directed at a child or cause actual harm;
rather, it is sufficient if the conduct endangers the child’s emotional well-being. Id.; In re U.P.,
105 S.W.3d 222, 233 (Tex.App.--Houston [14th Dist.] 2003, pet. denied); Robinson, 89 S.W.3d at
686. It is not necessary that the conduct be directed at the child or that the child suffers injury, or
even that the conduct constitutes a concrete threat of injury to the child. See In re M.J.M.L., 31
S.W.3d 347, 350 (Tex.App.--San Antonio 2000, pet. denied). Thus, the court’s inquiry
encompasses acts that endanger a child’s physical or emotional well-being, or both. See Boyd,
727 S.W.2d at 534.
Section (D) requires proof of endangerment which means to expose to loss or injury, or to
jeopardize a child's emotional or physical health. Castaneda v. Tex. Dep’t. of Protective and
Regulatory Servs., 148 S.W.3d 509, 521-22 (Tex.App.--El Paso 2004, pet. denied), citing Boyd,
727 S.W.2d at 533. While endangerment means more than a threat of metaphysical injury or the
9
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 suffer actual injury. Castaneda, 148 S.W.3d at 522; Doyle v.
Tex. Dep’t. of Protective and Regulatory Servs., 16 S.W.3d 390, 394 (Tex.App.--El Paso 2000,
pet. denied). Subsection (D) requires a showing that the environment in which the child is placed
endangered the child’s physical or emotional health. Castaneda, 148 S.W.3d at 522. Conduct of
a parent or another person in the home can create an environment that endangers the physical and
emotional well-being of a child as required for termination under Subsection D. Id.; see In re
W.S., 899 S.W.2d 772, 776 (Tex.App.--Fort Worth 1995, no writ)(“environment” refers to the
acceptability of living conditions, as well as a parent’s conduct in the home). Inappropriate,
abusive, or unlawful conduct by persons who live in the child’s home or with whom the child is
compelled to associate on a regular basis in his home is a part of the “conditions or surroundings”
of the child’s home under subsection (D). In re M.R.J.M., 280 S.W.3d at 502. The fact finder
may infer from past conduct endangering the child’s well-being that similar conduct will recur if
the child is returned to the parent. Id.
The relevant inquiry for a subsection (E) termination is whether evidence exists that the
endangerment was the direct result of the parent’s conduct, including acts, omissions, and failures
to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex.App.--Fort Worth 2003, no pet.). It is not
necessary that the parent’s conduct be directed at the child or that the child actually suffer injury.
Boyd, 727 S.W.2d at 533; In re J.T.G., 121 S.W.3d at 125. Endangerment of a child’s well-being
may be inferred from parental misconduct, including conduct that subjects the child to a life of
uncertainty and instability. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738-39
(Tex.App.--Fort Worth 2004, pet. denied). The parent-child relationship, and efforts to improve
10
or enhance parenting skills, are relevant in determining whether a parent’s conduct results in
endangerment under subsection (E). See In re D.T., 34 S.W.3d 625, 640 (Tex.App.--Fort Worth
2000, pet. denied).
Because the focus under (D) or (E) is the conduct of the parent, evidence of criminal
conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a
course of conduct that endangered the well-being of the child. In re J.T.G., 121 S.W.3d at 133.
However, there are some distinctions in the application of subsections (D) and (E).
Knowledge of paternity is a prerequisite to a showing of knowing placement of a child in an
endangering environment under Section 161.001(1)(D), however it is not a prerequisite to a
showing of a parental course of conduct which endangers a child under Section 161.001(1)(E).
See In the Interest of Stevenson, 27 S.W.3d 195, 201-03 (Tex.App.--San Antonio 2000, pet.
denied). Furthermore, termination under Section 161.001(1)(D) is permitted “because of a single
act or omission.” See In re R.D., 955 S.W.2d 364, 367 (Tex.App.--San Antonio 1997, pet.
denied). Conversely, termination under (E) requires a conscious course of conduct by the parent.
See In re K.M.M., 993 S.W.2d 225, 228 (Tex.App.--Eastland 1999, no pet.); In re J.W., 152
S.W.3d 200, 205 (Tex.App.--Dallas 2004, pet. denied).
Reviewing the evidence presented in the case, A.S., by his own admission, knew that C.M.
was seven months pregnant with D.M. and that he was purportedly the father. Yet A.S. only met
D.M. when D.M. was two months old, and has never seen D.M. since. A.S.’s excuse was that he
was on the road most of the time. The evidence also established that A.S. knew C.M. was abusing
alcohol, using marijuana, and “smok[ing] crack cocaine.” The record indicates that D.M. tested
positive for marijuana and cocaine at his birth. A.S. conceded that he did not seek custody or
11
conservatorship over D.M.
A.S. did not challenge the evidence presented that C.M. medically neglected D.M., which
led to D.M.’s placement in foster care. A.S. did not challenge Ms. Fonseca’s testimony that the
children suffered the effects of C.M.’s substance abuse, which endangered their emotional and
physical well-being for years while they were with her. A.S. did not challenge the evidence of his
criminal convictions, including two family violence assaults against household members, resulting
in his incarceration. A.S. did not challenge Ms. Fonseca’s testimony that, apart from writing a
single letter to her inquiring about D.M., A.S. made no additional inquiries about D.M. No
evidence was presented that A.S. made any attempt to improve his parenting skills. While A.S.
testified that he had anger problems and that anger management courses were available, he did not
avail himself of these programs. A.S. provided no financial or other support for D.M.
Considering all of 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 that its finding was
true,” In re J.P.B., 180 S.W.3d at 573, we conclude that a reasonable fact finder could have formed
a firm belief or conviction that A.S. endangered the emotional and physical well-being of D.M.
through A.S.’s course of conduct, including his failures to act. We find the evidence presented
legally sufficient to support termination under Sections 161.001(1)(D) & (E). In reviewing the
entire record and evidence presented, and giving due deference to the evidence that the fact finder
could reasonable have found to be clear and convincing, See In re J.F.C., 96 S.W.3d at 266, we
conclude that the evidence is factually sufficient to support termination under Sections
161.001(1)(D) & (E). Any disputed evidence presented was not such that a reasonable fact finder
could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at
12
266. A.S.’s first issue is overruled.
Because we conclude that the evidence is legally and factually sufficient to support the trial
court’s finding under Sections 161.001(1)(D) & (E) as challenged in Issue One, we need not
address the challenges raised by A.S. in Issues Two, Three and Four. See TEX.FAM.CODE
ANN. § 161.001(1); In re A.V., 113 S.W.3d at 362.
Best interests of the child
A.S.’s fifth issue is that the evidence was legally and factually insufficient to support the
termination of his parental rights under the best interest of the child analysis.
The Texas Supreme Court has recognized a number of factors used for best-interest
determinations. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). These factors include:
(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. Holley, 544 S.W.2d at 372 (footnotes
omitted); M.C., 300 S.W.3d at 311. The Holley factors are not exhaustive. M.C. v. Texas Dept.
of Fam. & Prot. Svc., 300 S.W.3d 305, 311 (Tex.App.--El Paso 2009, pet. denied). No single
factor is controlling, and the fact finder is not required to consider all of them. M.C., 300 S.W.3d
at 311. Undisputed evidence of a single factor may be sufficient to support a finding that
termination is in the best interest of a child. Id.
13
Desires of the child. D.M. is very young, having been one year old at the time of the trial,
and is non-verbal. The record is silent regarding D.M’s desires. However, the fact that D.M. has
spent virtually no time with A.S. may be considered as part of this factor. See In re U.P., 105
S.W.3d at 230. A.S. met D.M. on exactly one occasion following D.M.’s birth, and has never
visited D.M. during the case. Certainly, the lack of contact between A.S. and D.M. supports a
conclusion that there is no emotional bond between them. See In re C.N.S., 105 S.W.3d 104, 106
(Tex.App.--Waco 2003, no pet.). This factor supports termination.
The emotional and physical needs of the child now and in the future, and the emotional and
physical danger to the child now and in the future. A.S. contends that there is no evidence of past
or future danger to D.M. by A.S., or any allegations involving A.S.’s six other children.
However, evidence of past misconduct or neglect is permissible as an inference that a parent’s
future conduct may be measured by their past conduct. See May v. May, 829 S.W.2d 373, 377
(Tex.App.--Corpus Christi 1992, writ denied). A parent’s inability or unwillingness to provide
adequate care for his children, lack of parenting skills, and poor judgment may be considered when
looking at the children’s best interest. See In re C.A.J., 122 S.W.3d 888, 893 (Tex.App.--Fort
Worth 2003, no pet.). Without stability, income, or home, a parent is unable to provide for a
child’s emotional and physical needs. Id. at 894.
Further, while there is a strong presumption that the best interest of the child will be served
by preserving the parent-child relationship; see In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)(per
curiam), the focus is on the best interest of the child - not the best interest of the parent. See
Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App.--Dallas
1995, no writ). A parent’s current and future incarceration at the time of trial is relevant to that
14
parent’s ability to meet the child’s present and future physical and emotional needs. See In re
M.D.S., 1 S.W.3d 190, 200 (Tex.App.--Amarillo 1999, no pet.). This is not dispositive, but only a
factor for best interest. In the interest of C.T.E., 95 S.W.3d 462, 466 (Tex.App.--Houston [1st
Dist.] 2002, pet. denied).
There is nothing in the record indicating that D.M. has any special physical, emotional or
psychological needs. The unchallenged evidence in the case established that: (1) A.S. has not
seen, visited, or spoken to D.M. since the single time he met D.M.; (2) A.S. has not provided
financial support for D.M. since D.M. was born; (3) A.S. is presently incarcerated, having been
sentenced to seven years of confinement for multiple offenses, including two assaults, which
involved women with whom A.S. was involved; (4) A.S. testified he had anger problems and that
while anger management courses were available, he did not avail himself of these programs; (5)
the only placement A.S. offered for D.M. was in the home of L.R., whom A.S. was convicted of
assaulting, and who had no relationship with D.M.
The record supports an inference that A.S.’s course of misconduct before and throughout
this case would continue into the future. See generally, May, 829 S.W.2d at 373. Further, A.S.’s
continued lack of contact with D.M., lack of support of D.M., and A.S.’s sentence and
incarceration established that A.S. is unable to meet D.M.’s emotional or physical needs, presently
or in the future. In re C.A.J. 122 S.W.3d at 893; In re M.D.S., 1 S.W.3d at 200; In re S.M.L., 171
S.W.3d at 479 (explaining that because when a parent is incarcerated, he is absent from a child’s
daily life and is unable to provide support, a parent’s pattern of intentional criminal activity that
exposes the parent to incarceration is conduct that can negatively impact a child’s living
environment and emotional well-being). The trial court could have also concluded that A.S.
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could not offer stability or permanence to D.M. In re T.D.C., 91 S.W.3d 865, 873
(Tex.App.--Fort Worth 2002, pet. denied). These factors favor termination.
The parental abilities of the individuals seeking custody. The programs available to assist
these individuals to promote the best interest of the child. A.S. does not address these factors in
his brief. The record does indicate that while A.S. recognizes that he has an anger problem, he has
failed to take advantage of available programs. Certainly A.S.’s substantial lack of involvement
in D.M.’s life, as well as A.S.’s lack of action in seeking custody or conservatorship of D.M.
though A.S. knew D.M. resided in the home of a known drug abuser, raised significant doubts as to
A.S.’s parental abilities. Such information was certainly relevant to and supportive of the
termination determination.
The plans for the child by these individuals or by the agency seeking custody. The
stability of the home or proposed placement. A.S. generally argues these factors together in his
brief. A.S. contends that the Department does not have a concrete permanency plan for D.M. or
his siblings, and that terminating A.S.’s parental rights would not further the Department’s stated
goals of working with C.M. in helping her gain managing conservatorship rights and potentially
placing the children with relatives.
The evidence in the case was that A.S. proposed that D.M. live with L.R. who: (1) had no
relationship with D.M.; (2) had a violent relationship with A.S.; (3) could only care for one child;
and (4) whom A.S. planned on reuniting with once he was released from prison. A.S. claimed
that he would support D.M. following his release from prison but had not done so previously. He
also claimed that he would “be there” for D.M., despite only having met him once. None of the
people A.S. proposed as placements for D.M. had ever met D.M. The Department and CASA
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both testified that D.M. should remain with his other siblings, with whom he was strongly bonded
to. A.S. agreed that D.M. remaining with his siblings was in D.M.’s best interest. Both the
Department and A.S. agree that separating D.M. from his siblings is not in the best interests of the
child. These factors are, at best, neutral.
The acts or omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one. Any excuse for the acts or omissions of the parent. A.S. does
not address either of these factors in his arguments. When asked at trial why he did not have
contact with D.M., A.S. stated that he was “on the road most of the time” and that A.S.’s family
“didn’t want me to [sic] close to her family” because “they’re nothing but drug users and
alcoholics.” Since D.M.’s birth A.S. has not provided financial support for D.M. A.S. testified
that while his family bought items for D.M., they did not provide these items to D.M., fearing that
C.M. would sell them. A.S. did not testify that he, himself, had ever purchased anything for D.M.
A.S. testified that he did not provide any relative placements for D.M. when he was first contacted
by the Department because he was unsure of paternity. A.S. has admitted to anger issues, but did
not take advantage of any programs available to him while incarcerated, and blames transfers in
the prison system for his failure. A.S. is currently incarcerated for multiple crimes, including two
assaults, one of which was committed against L.R., whom A.S. claims as his common-law wife,
although he is subject to protective orders filed by L.R. and other women. Since D.M. was born,
A.S. has seen him only once and has not made inquiries about him.
The trial court, as fact finder, was entitled to disbelieve some or all of A.S.’s excuses based
on the evidence presented, and reasonably could have formed a firm belief or conviction that A.S
had inadequate excuses for his actions and inactions. The trial court could also reasonably have
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formed a firm belief and conviction that A.S.’s acts and omissions do not support an appropriate
parent-child relationship. These factors favor termination.
Viewing the evidence in the light most favorable to the judgment for a legal sufficiency
analysis and all of the evidence equally for a factual sufficiency analysis, we conclude that a
reasonable fact finder could have formed a firm belief or conviction that the best interest of the
child would be served by termination of A.S.’s parental rights. We find the evidence legally and
factually sufficient to support the trial court’s finding. Appellant’s fifth issue is overruled.
CONCLUSION
Having found legally and factually sufficient evidence to support termination under
Sections 161.001(1)(D) & (E) and that termination is in for the best interest of the child, the
judgment of the trial court is affirmed.
December 21, 2012
CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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