in the Interest of D. G., N. K., and C. K., Children ( 2012 )

NUMBER 13-11-00127-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF D.G., N.K., AND C.K., CHILDREN
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
This is an appeal from a trial court order terminating the parental rights of
appellant, T.G. to her three biological sons, D.G., N.K., and C.K. The trial court
determined that there was clear and convincing evidence that appellant knowingly placed
or knowingly allowed the children to remain in conditions or surroundings which
endangered their physical or emotional well-being and 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. See TEX. FAM. CODE ANN. § 161.001(1)(D) & (E)
(West Supp. 2011). By four issues, appellant argues that the evidence is legally and
factually insufficient to support the trial court's decision that appellant's parental rights
should be terminated. We affirm.
I. BACKGROUND
In late 2008 and early 2009, appellant became the subject of investigations by the
Department of Family and Protective Services ("the Department"), involving the three
children who are the subject of this termination proceeding. Appellant was charged with
physical neglect in 2008, and again in February 2009. There were physical abuse
charges and neglectful supervision charges in 2009 involving sexual abuse by the
children's grandmother's boyfriend. Because of the investigations, on June 30, 2009,
appellant temporarily relinquished her parental rights to a friend of hers named K.J.
Appellant stated that she relinquished her rights because she was under investigation
and didn't want the children to go to a foster home. Thirty days after she relinquished her
parental rights, she changed her mind and attempted to revoke the relinquishment. The
children remained with K.J. until September 2009, when physical abuse charges were
made against K.J. They were then placed in foster care in the Ramey home where they
resided at the time of trial. K.J. was made a part of these proceedings because she
wanted the children returned to her home.
Leslie Switzer, a clinical social worker, testified at trial that she had been
counseling the two older children since December 2009. She testified that D.G., then
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twelve years old, told her that he suffered abuse at the hands of appellant. He told
Switzer that he was hit with whips and was made to eat feces and drink urine by his
mother. D.G. also alluded to abuse by his grandmother's boyfriend, who would rub his
genitals on him and urinate on him. D.G. told Switzer that he told his mother about the
abuse. D.G. also told Switzer that while in K.J.'s care, she had whipped him and locked
him in a closet for extended periods of time. Switzer believed D.G.'s allegations to be
true.
With respect to N.K., who was nine years old at the time, Switzer testified that he
also indicated that appellant would make him eat feces, would take him out to the garage
to set fire to things and then took him to a treatment center and had him detained in a
psychiatric facility. He also alleged sexual abuse by his grandmother's boyfriend. N.K.
told Switzer that appellant would "rub his penis until it would stand up." According to
Switzer, appellant told N.K. that she had implanted a chip in his head and that if he ever
talked about that, she would find him and kill him. He has dreams of appellant killing him
with an axe and draws a lot of pictures depicting the dream in therapy. N.K. also told
Switzer that he had been whipped by K.J. and put in a closet.
On cross examination, Switzer said that she did not believe the children had
"manufactured" the things they told her. She also testified that the children reported the
abuse by the grandmother's boyfriend before she became their counselor.
Olivia Ramey, the children's foster mother, testified that all of the children were
doing well in her home. They began to regress somewhat when they learned that they
might be placed with their father's parents who live in Ohio. Their father was in prison at
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the time of trial, and is not the subject of this proceeding. Ramey reiterated that N.K. told
her that appellant had put a "chip" inside him so she would know where he was. Ramey
said when the children came into her home in 2009, they were malnourished physically
and emotionally "were a mess." She and her husband taught them personal hygiene
and how to eat. She testified that the older boys told her that C.K., the three-year-old,
would be hit on the mouth with a belt by appellant and C.K.'s grandmother. On cross
examination, she agreed that everything she knew about K.J., she learned through the
children.
Mary Ann Menning, the Court Appointed Special Advocate ("CASA") volunteer
assigned to the case, said that she visited appellant's home only one time. She testified
that the yard was overgrown, the garage was full of boxes, and it was not organized.
She described appellant as very gracious. Inside the home, there were boxes and
debris, dirty dishes were stacked everywhere and the middle of the floor was all black.
The children's bedroom was the "closest to normal." She would not have recommended
the boys to be returned to this home. Menning got the impression when she was there
that appellant had "given up." She thought appellant intended to get the children back,
but was unable to take the first step. Menning opined that it was in the children's best
interest that appellant's parental rights be terminated.
K.J. testified that neither she nor her husband ever used corporal punishment on
the children. She denied that there was spanking or whipping while the children were in
her care. She disputed all of the testimony presented by the CASA volunteer and others.
Counsel pointed out that all of the information the trial court was hearing was passed to
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the adult witnesses by the children. K.J. testified that she kept a journal and did
everything CPS asked her to do. She said the children were happy while in her care.
There was never any follow-up by CPS after the children were taken from her home.
She thought it was possible that the two older boys fabricated what had happened to
them. She said the children reported incidents to her regarding appellant and the
grandmother's boyfriend.
Appellant testified that her home has running water and electricity. If given the
opportunity, she could finish up the housekeeping services that were supposed to occur.
She said she attended counseling and completed a parenting plan. She claimed that
she e-mailed Amy Sanders, who was supposed to do the housekeeping services, to let
her know when she returned from the holidays. Appellant testified that she was waiting
to hear from Sanders, but did not. Appellant testified that she wants to visit the children,
but the children's doctor advised against it. She stated that she thought the children
probably think she doesn't care for them because she is prohibited from visiting them.
According to appellant, N.K. told her that if she did not marry his father "he will make it to
where he would never see me again . . ." She believed that D.G. was being coerced into
saying things against her. She did not force her children to eat feces or drink urine. She
was never told that the boys were being molested by her mother's boyfriend. No one
had ever abused her children in her presence. Appellant testified that she had many
caseworkers involved in the case, which made it difficult to get the services she needed.
Dawn Bustamonte, a Department caseworker, who had been assigned the
children's case since May 2010, testified about whether appellant completed all of the
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required services. She ultimately opined that as of December 2010, appellant had not
completed her service plan and had not insured that her home was safe and sanitary.
During cross-examination, Bustamonte noted that an individual named Boone was
supposed to have contacted appellant for counseling. She does not know if Boone ever
contacted appellant to start services. She said she would never use Boone again,
presumably because she failed to follow-up with appellant. The last time Bustamonte
saw appellant was September of 2010.
Amy Sanders, who performs housekeeping services for the Department, testified
that she had never met appellant. She emailed her in November and December of 2010
to make an appointment to meet. Sanders told appellant that she would be at appellant’s
house on December 3, 2010. She did not get a response from appellant, and when she
went to the house, no one answered the door. Sanders noted that when she arrived at
the home, the washer was running in the garage. Sanders left a card, but received no
further response from appellant. In January, appellant e-mailed Sanders to ask her to
make an attempt to come to the house or e-mail her. Appellant had been out of town for
the holidays. Sanders did not contact appellant again because the case had been
closed.
II. STANDARD OF REVIEW
Involuntary termination of parental rights involves fundamental constitutional rights
and divests the parent and child of all legal rights, privileges, duties and powers normally
existing between them, except for the child's right to inherit from the parent. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.
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App.—Corpus Christi 2006, no pet.). Termination must be supported by clear and
convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d
at 778. This intermediate standard falls between the preponderance of the evidence
standard of civil proceedings and the reasonable doubt standard of criminal proceedings.
In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex.
App.—Fort Worth 2006, pet. denied). It is defined as 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 C.H., 89 S.W.3d 17, 25 (Tex. 2002).
In reviewing the legal sufficiency of the evidence supporting parental termination,
we should "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 that its
finding was true." In re J.L., 163 S.W.3d at 85. We must assume that the trier of fact
resolved disputed facts in favor of its finding if it was reasonable to do so. Id. We must
also consider undisputed evidence, if any, that does not support the finding. Id. at 86.
In reviewing the evidence for factual sufficiency, we must give due deference to the
fact finder's findings and not supplant the court's judgment with our own. In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire record, a
fact finder could reasonably form a firm conviction or belief that the parent violated the
relevant conduct provision of section 161.001(1) of the Texas Family Code and that the
termination of the parent-child relationship would be in the best interest of the child. In re
C.H., 89 S.W.3d at 28. If, in light of the entire record, the disputed evidence that a
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reasonable fact finder could not have credited in favor of the finding is so significant that a
fact finder could not reasonably have formed a firm belief or conviction in the truth of its
finding, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.
III. STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS
Section 161.001 of the Texas Family Code sets forth the grounds upon which the
court may involuntarily terminate a parent-child relationship. TEX. FAM. CODE ANN. §
161.001 (West Supp. 2011). In this case, the Department sought termination pursuant
to subsections (D) and (E) of section 161.001 of the family code. See id. The trial court
found that appellant had: (1) knowingly placed or allowed the children to remain in
conditions or surroundings which endanger the physical or emotional well-being of the
children; and (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.
Id. § 161.001(1)(D) & (E).
A trial court may order termination if it finds by clear and convincing evidence that
the parent has knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child. Id. §
161.001(1)(D). Endangerment is defined as exposing to loss or injury, to jeopardize. In
re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Under
subsection (D), we examine the evidence related to the environment of the child to
determine if the environment is the source of endangerment to the child's physical or
emotional well-being. In re D.T., 34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet.
denied).
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The parent's conduct does not necessarily have to be directed at the child. See
Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 195 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied). Conduct that subjects a child to a life of
uncertainty and instability endangers a child's physical and emotional well-being. See In
re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). Abusive or
violent conduct by a parent may produce an environment that endangers the physical or
emotional well-being of the child. In re J.T.G., 121 S.W.3d at 125. The requisite
endangerment may be found if the evidence shows a parent's course of conduct that has
the effect of endangering the child's physical or emotional well-being. See Smith v.
Sims, 801 S.W.2d 247, 250 (Tex. App.—Houston [14th Dist.] 1990, no writ).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child's physical well-being was the direct result of appellant's
conduct, including acts, omissions, or failures to act. See TEX. FAM. CODE ANN. §
161.001(1)(E); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) ("[A] child is endangered when the environment or the parent's
course of conduct creates a potential for danger which the parent is aware of but
disregards."); see In re J.T.G., 121 S.W.3d at 125. 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 J.T.G., 121
S.W.3d at 125; see TEX. FAM. CODE ANN. § 161.001(1)(E). The specific danger to the
child's well-being may be inferred from parental misconduct standing alone. In re R.W.,
129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
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Here, the evidence was contested. The trial court was faced with weighing the
veracity of the children's outcries against appellant's and K.J.'s denials of wrongdoing.
The evidence concerning the children's outcries of abuse and neglect, relayed to their
counselor and court appointed advocate, was admitted without objection. It was within
the trial court's discretion to believe that the children's grandmother's boyfriend sexually
abused the children and appellant knew. The trial court could also have believed that
appellant sexually abused one child and beat all of them. The trial court could have also
believed that appellant totally failed to provide a safe and sanitary environment for the
children.
It is the trial court's function, as the trier of fact, to judge the credibility of the
witnesses, assign the weight to be given their testimony, and resolve any conflicts or
inconsistencies in the testimony. In re R.W., 129 S.W.3d at 742. The trial court was
entitled to believe all, part, or none of the testimony of any witness. In re T.N., 180
S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.). Based upon the evidence, the
trial court could have reasonably formed a firm belief or conviction that appellant
knowingly placed or allowed the children to be placed in conditions or surroundings that
endangered their physical or emotional well-being, or that she engaged in conduct or
knowingly placed the children with a person who engaged in conduct that endangered the
physical or emotional well-being of the children. See TEX. FAM. CODE ANN. §
161.001(1)(D) & (E). We overrule issues two and three.
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IV. BEST INTEREST OF THE CHILDREN
By her first issue, appellant asserts that the trial court erred in determining that
termination was in the children's best interest. In deciding whether termination is in a
child's best interest, the fact-finder may consider the following non-exhaustive list of
factors outlined by the Texas Supreme Court: (1) the desires of the child; (2) the present
and future physical and emotional needs of the child; (3) the present and future emotional
and physical danger to the child; (4) the parental abilities of the person seeking custody;
(5) the programs available to assist those persons in promoting the best interest of the
child; (6) the plan for the child by those individuals or by the agency seeking custody; (7)
the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not appropriate; (8) the stability of the home or proposed placement; and
(9) any excuse for the acts or omissions of the parents. Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976); see In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth
2001, no pet.). "'Best interest' does not require proof of any unique set of factors, nor
does it limit proof to any specific factors." In re D.M., 58 S.W.3d at 814. The party
seeking termination need not prove that each of the Holley factors favor termination, and
the same evidence of acts or omissions used under section 161.001(1) of the family code
may be probative in determining the best interests of the child. See In re A.A.A., 265
S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
There was testimony that the children were doing well in foster care. The foster
parents hoped to adopt them. The children were doing better emotionally and were
happy. They want to remain with the foster parents. There was evidence before the
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trial court from which it could have concluded that the existing parent-child relationship
was not appropriate. Taking into consideration all of the evidence in the record, we hold
that a reasonable fact-finder could have formed the firm belief or conviction that it was in
the best interest of the children to terminate appellant's parental rights. Thus, the
evidence supporting the trial court's best interest finding is legally and factually sufficient.
We overrule issue one.
V. REASONABLE EFFORTS TO RETURN THE CHILDREN
By appellant's fourth issue, she argues that the evidence admitted at trial was
legally and factually insufficient to show that the Department had made reasonable efforts
to return the children to the mother. The trial court's ruling was based upon subsections
(D) and (E) of section 161.001(1) of the family code. Subsection (N) of section
161.001(1) discusses constructive abandonment and requires the Department "to make
reasonable efforts to return the child to the parent." TEX. FAM. CODE ANN. §
161.001(1)(N). Section 161.003 of the Texas Family Code, titled "Involuntary
Termination: Inability to Care for Child," also requires reasonable efforts to return the
child in circumstances where termination is sought under that section. Id. § 161.003.
However, in this case, termination was not sought under these sections. Although the
evidence was contested with respect to whether the Department's difficulties in providing
services was appellant's fault or the Department's, resolution of that issue was not
necessary to the trial court's ruling. Regardless, the trial court could have properly
weighed the conflicting evidence in favor of the Department. We overrule issue four.
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VI. CONCLUSION
Having overruled all of appellant's issues, we affirm the judgment of the trial court.
ROSE VELA
Justice
Delivered and filed the
1st day of March, 2012.
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