in the Interest of M.L.N. and A.S.N., Children ( 2011 )

NUMBER 13-10-588-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF M.L.N. AND A.S.N., CHILDREN
On appeal from the 135th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Vela, and Perkes
Memorandum Opinion by Justice Vela
This is an appeal from an order terminating the parental rights of appellant, R.A.N.,
to his two children, a son, M.L.N. and a daughter, A.S.N. In his sole issue on appeal,
appellant argues that the trial court violated his right to equal protection under the
fourteenth amendment of the United States Constitution because the reasons for
termination were that appellant was an unemployed, indigent person with a disability.
See U.S. CONST. amend. XIV. We affirm.
I. BACKGROUND
The State, through the Texas Department of Family and Protective Services, filed
its original petition on March 26, 2009, seeking managing conservatorship and potential
termination of the parental rights of appellant, R.A.N., and D.R.N., the children=s mother
and appellant’s wife. After a hearing was held on March 17, 2010, the trial court
terminated the mother’s parental rights to the children. With respect to appellant, the trial
court stated: ―I’m going to continue a decision in [appellant’s] termination for six months.
At the end of six months if he has not reached a proficiency level that the professionals
deem necessary for him to continue training to have the children returned to him, I’ll
terminate his rights.‖ The State later sought an order to dissolve the suspension of the
earlier termination order and terminate appellant’s parental rights.
On October 1, 2010, the trial court held a hearing on the State’s request to
terminate appellant’s parental rights. The trial court took judicial notice of its file, which
included the order in which he terminated D.R.N.’s parental rights and suspended the
termination order for six months with respect to appellant. The trial court also admitted
into evidence the entire transcription of the earlier hearing on the motion to terminate
appellant’s rights. The trial court admitted into evidence the plan of service that had
been set up for appellant to follow. The plan included weekly counseling, addressing his
own medication needs, maintaining safe and hazard-free housing, and the requirement
that appellant be able to show he is able to financially care for the children.
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Christy Hartly-Harvey, with the homemaker services program, testified at the
October hearing, as well as at the initial hearing. At the October hearing, she testified
that appellant had accomplished none of goals set forth for him in the service plan. He
initially acquired a residence that was not adequate to house two small children. There
was no running water, no electricity, the floor was rotting, and there were nails protruding
from the base boards. She stated that she last saw appellant on August 17, and he
missed an appointment on August 31. Since that time, she had not had contact with
appellant. At the earlier hearing, when asked about the parenting abilities of appellant
and his wife, Hartly-Harvey concluded that she did not believe Aeither one of them has the
capability to parent their children effectively and nurturing—you know, being nurturing
parents. I think they both have the desire but I don=t think they have the capability.@ She
felt that neither parent has the ability to teach the children right from wrong, to resolve
conflicts, to teach them how to resolve conflicts, or to show the children proper affection.
Catherine Parsons-Key, a licensed professional counselor, testified at the October
hearing that she began counseling with appellant in the middle of July. Appellant kept all
of his weekly appointments with her from July 13 through August 24. On September 2,
he did not come to his appointment and did not explain or reschedule. During the
counseling sessions, she spoke with appellant about his background, including his
mental illness and his childhood that had been spent in DPS care. She opined that
during the time she counseled with him, no progress was made. He could not get the
housing arranged and could not get anything accomplished outside of the counseling
realm. Parsons-Key stated that she was not sure improvement would happen. Based
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on the six sessions she had with appellant, she did not think more time would have
helped, but qualified her answer by agreeing that it might have. She informed the trial
court that she did not believe appellant was competent to raise and nourish two special
needs children.
Alma Straney, the DPS caseworker assigned to appellant, testified that she took
over his case in May 2010, visited with appellant at the apartment and noted he had
cleaned the bathroom and the tub, but stated that the apartment was in no condition for
children to live there. She testified that appellant did not fulfill the requirements of the
plan of service. At the time of the October hearing, appellant was living on the streets.
Straney noted that appellant visited with the children regularly, only missing one visit in
September.
Appellant testified at the October hearing that he had stayed away from his wife
since her rights had been terminated, returning only once to retrieve his personal items.
He said he looked for a home and had been applying for jobs. In August, he moved out
of the apartment because it was not manageable and the landlord was not making
necessary repairs.
Prior to the October hearing, the trial court heard evidence that appellant had
relinquished his parental rights to the two children in 2004. Evidence offered at the
earlier hearing showed a pattern of violent altercations between appellant and his wife in
the children=s presence. According to D.R.N., she and appellant had arguments that the
children witnessed. She described one instance where appellant grabbed her by the
chain on her neck and attempted to choke her. Later, her daughter attempted to do the
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same thing to her because she wanted to Abe like daddy.@ Appellant testified that he had
used drugs with his wife. He also testified that he receives disability benefits, has been
hospitalized several times for psychological problems, has been arrested for possession
of a controlled substance and criminal mischief, and has an addiction to pills.
At the earlier hearing, D.R.N. testified that the home was not a safe place for the
children while she and her husband resided there. Appellant agreed that the children
were not safe while the two of them were at home. The experts who testified at the
earlier hearing all agreed that the parental rights of both parents should be terminated
based on the fact that they had worked with both of them extensively and saw no progress
with respect to parenting skills.
At the conclusion of the October 1, 2010 hearing, the trial court found that the
appellant: (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 which endangered the physical or emotional well-being of the
children; and (3) failed to comply with the provisions of a court order that specifically
established the actions necessary for him to have the children returned. The trial court
also found that the State had made reasonable efforts to return the children to appellant.
II. STANDARD OF REVIEW AND APPLICABLE LAW
In hearings regarding the termination of parental rights, due process requires that
the State prove its case for termination by clear and convincing evidence. In re J.F.C.,
96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In
re G. M., 596 S.W.2d 846, 847 (Tex. 1980)). The clear and convincing standard is
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defined as the Ameasure 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). The Equal Protection Clause provides that
no state shall ―deny to any person within its jurisdiction the equal protection of the laws,‖
which directs that all persons similarly situated should be treated alike. U.S. CONST.
amend. XIV, § 1; In re J.M.C., 109 S.W.3d 591, 597 (Tex. App.–Fort Worth 2003, no pet.).
Taking this elevated standard of review into consideration, an appellate court,
reviewing the legal sufficiency of the evidence in a parental termination case, must
determine whether a fact-finder could have reasonably formed a firm belief or conviction
that the grounds for termination were proven. In re J.F.C., 96 S.W.3d at 265-66. All
evidence should be reviewed Ain the light most favorable to the judgment.@ Id. at 266.
This means that an appellate court must assume that the fact-finder resolved any
disputed facts in favor of its finding if a reasonable fact-finder could have done so. An
appellate court must also disregard all evidence that a reasonable fact-finder could have
disbelieved. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). AIf [an appellate
court] determines that no reasonable fact-finders could form a firm belief or conviction that
the matter that must be proven is true, then that court must conclude that the evidence is
legally insufficient.@ In re J.F.C., 96 S.W.3d at 266.
Similarly, the clear and convincing standard of review in a parental termination
hearing requires a higher level of evidence in order to be factually sufficient. See In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002). The appellate standard for reviewing parental
termination factual findings is whether the evidence is such that a fact-finder could have
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reasonably formed a firm belief or conviction about the truth of the State's allegations.
Id.
In reviewing the evidence for factual sufficiency, we must determine whether, on
the entire record, a fact-finder could reasonably form a firm conviction or belief that the
parent violated a provision of section 161.001(1) of the family code and that the
termination of parental rights would be in the best interest of the child. In re M.C.T., 250
S.W.3d 161, 168 (Tex. App.–Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28).
AIf, in light of the entire record, the disputed evidence that a reasonable fact-finder could
not have credited in favor of the finding is so significant that a fact-finder could not have
reasonably formed a firm belief or conviction in the truth of its finding, then the evidence is
factually insufficient.@ Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)).
When termination is based on multiple grounds under section 161.001(1), a court
of appeals must affirm the order if the evidence is sufficient to support any one of the
grounds found by the district court. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
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. 2010).
The 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
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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).
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). A parent's
mental state may be considered in determining whether a child is endangered if that
mental state allows the parent to engage in conduct that jeopardizes the physical or
emotional well-being of the child. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.–Houston
[14th Dist.] 2003, no pet.); see also In re C.M.B., 204 S.W.3d 886, 895 (Tex. App.–Dallas
2006, 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 117, 125 (Tex. App.–Fort Worth 2003, no pet.). 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).
In this case, the trial court found that appellant had: (1) knowingly placed or
allowed the children to remain in conditions or surroundings which endanger the physical
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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; and (3) failed to comply with the provisions of a court
order that specifically established the actions necessary for the return of the children who
have been in the permanent or temporary managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a result of the
children=s removal from the parent under chapter 262 for the abuse or neglect of the
children. Id. ' 161.001(1)(D), (E), (O).
IV. ANALYSIS
Here, appellant does not challenge any of the specific grounds that the trial court
found to support its decision that appellant’s rights should be terminated. Rather,
appellant urges that he was denied equal protection because his rights were terminated
based on poverty, unemployment and disability. Appellant does not point to any cases
to show that he was denied equal protection. His only argument is that if he had more
money and was not disabled, he would have had the resources to have his children
returned to him. To assert an equal protection claim, a party must establish that the
challenged statute resulted in him being treated differently than others similarly situated.
In re J.M.C., 109 S.W.3d at 597.
The trial court found three grounds upon which to terminate appellant’s rights.
And the grounds are supported by evidence, which was essentially unchallenged in this
appeal. Appellant has not established that the statute resulted in him being treated
differently. We have carefully reviewed this record. Looking at all of the evidence in the
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light most favorable to the trial court=s determination, we hold that a reasonable trier of
fact could reasonably have formed a firm belief or conviction that appellant knowingly
placed or allowed the children to remain in conditions or surroundings that endangered
their physical well-being and that he engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangered the children=s physical or
emotional well-being. Both legally and factually sufficient evidence support the trial
court=s findings under section 161.001(1)(D) and (E) of the Texas Family Code. TEX.
FAM. CODE ANN. ' 161.001(1)(D), (E). The evidence also established that appellant
clearly failed to comply with the service plan, id. § 161.001(1)(O), and the evidence
supports termination on this ground, as well. Because we find that the trial court did not
rely solely upon appellant’s poverty, disability, and employment status, but considered all
of the relevant statutory factors to be utilized before terminating a parent’s rights, we
overrule appellant’s sole issue.
V. CONCLUSION
Having overruled appellant=s sole issue, we affirm the judgment of the trial court.
ROSE VELA
Justice
Delivered and filed the
5th day of May, 2011.
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