in the Interest of K.H., a Child ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00427-CV
IN THE INTEREST OF K.H.,
A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Father appeals the trial court’s termination of his parental rights
to his son K.H. Father raises five issues, arguing that the evidence is legally and
factually insufficient to support the best interest finding and factually insufficient
to support the trial court’s findings under Texas Family Code section
161.001(1)(D), (E), and (O). We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
In June 2008, Child Protective Services (hereinafter referred to as CPS or
the Department) received a referral for physical abuse of K.H. by Mother and her
boyfriend Lawrence. During a fight between Mother and Lawrence, Lawrence
shook six-month-old K.H.,2 turned him upside down, and threw him down on the
wood floor, causing a cut on K.H.’s head and a left tibia fracture. CPS removed
K.H. and placed him in foster care. Mother told CPS that K.H.’s Father’s
whereabouts were unknown and that he had no contact with his son.
Jennifer Merritt, the CPS caseworker assigned to K.H.’s case, testified that
she received the case in June 2008 and set up services for Mother. Merritt also
tracked down Father and gave him a service plan in July 2008. After the initial
termination trial, the trial court terminated Mother’s parental rights to K.H. but
denied the termination of Father’s parental rights.
Following the trial court’s decision denying termination of Father’s parental
rights, on April 7, 2010, the trial court and the parties signed an “Agreed Order
For Actions Necessary For Parent To Obtain Return Of Child” pursuant to family
code section 161.001(1)(O). The trial court ordered Father to comply with the
following tasks on or before August 2, 2010: (1) successfully complete parenting
classes through Merit Family Services; (2) complete a psychological evaluation
through Dr. Nichelle Wiggins; (3) participate in and successfully complete
2
K.H. was born December 28, 2007.
2
individual therapy through Positive Influences; (4) submit to random drug tests
within twenty-four hours of a request by CPS; (5) complete a drug assessment
through Merit Family Services and follow all recommendations of the
assessment; (6) attend Alcoholics Anonymous two times per week and provide
documentation of attendance; (7) obtain an Alcoholics Anonymous (AA) sponsor;
(8) secure and maintain stable housing and provide documentation to CPS; (9)
maintain legal employment; (10) develop a support system that can assist him in
his parenting role and provide information identifying his support system to CPS;
and (11) successfully participate in and complete an anger management course
through Positive Influences.
On October 7, 2010, the Department filed a petition for termination of
Father’s parental rights, alleging, among other grounds, that Father had failed to
comply with the provisions of a court order that specifically established the
actions necessary for Father to obtain the return of K.H. At the termination trial
on May 24, 2011 and June 20, 2011, the trial court heard testimony from the
caseworker and Father that Father had not completed individual therapy, that
Father had not submitted to three requested drug tests within twenty-four hours
of the requests and had also tested positive for drug use throughout the case,
that Father had not followed all of the recommendations from the drug
assessment, that Father had not attended Narcotics Anonymous (NA) two times
3
per week and had not provided documentation of his attendance,3 that Father
had not obtained a sponsor, that Father had not maintained employment, and
that Father had not developed a support system to help him with K.H. The trial
court thereafter found by clear and convincing evidence that Father had
knowingly placed or knowingly allowed K.H. to remain in conditions or
surroundings that endangered the emotional or physical well-being of the child,
that Father had engaged in conduct or knowingly placed the child with persons
who engaged in conduct that endangered the physical or emotional well-being of
the child, and that Father had failed to comply with the provisions of a court order
that specifically established the actions necessary for him to obtain the return of
the child. This appeal followed.
III. EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT
TO SUPPORT TERMINATION FINDINGS
In his five issues, Father argues that the evidence is legally and factually
insufficient to support the best interest finding and factually insufficient to support
the trial court’s findings under section 161.001(1)(D), (E), and (O). After setting
forth the law for terminating parental rights and the Holley factors, Father argues
in a single sentence: “Appellant R.H. contends that he completed all of the
services requested of him by the Department. RR (2/176–177).” Father’s one-
sentence argument, which references only two pages—neither of which are in
3
Father testified that he had talked to his caseworker about attending NA
meetings instead of AA meetings; he said that she did not have any objections to
that.
4
the appellate record,4 does not explain how the evidence is legally or factually
insufficient to support a best interest finding under the Holley best interest factors
and does not explain how the evidence is factually insufficient to support the trial
court’s findings under section 161.001(1)(D), (E), and (O). See Tex. Fam. Code
Ann. § 161.001(1)(D), (E), (O) (West Supp. 2011); Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976). Father’s one-sentence argument contains no citations
to case law or statutory law. See Tex. R. App. P. 38.1(i); see also In re A.W., No.
02-03-00349-CV, 2004 WL 1799893, at *6 (Tex. App.—Fort Worth Aug. 12,
2004, no pet.) (mem. op.) (holding that appellant waived best interest argument
because he presented no argument or authority that evidence was legally or
factually insufficient to support trial court’s best interest finding). Because a
parent’s rights to “the companionship, care, custody, and management” of his or
her children are constitutional interests “far more precious than any property
right,” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);
In re M.S., 115 S.W.3d 534, 547 (Tex. 2003), we nonetheless analyze the
sufficiency arguments raised by Father that are necessary to final disposition of
this appeal.
A. Standards of Review
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
4
Volume two of the reporter’s record ends on page 128, and volume three
of the reporter’s record ends on page 118.
5
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2011); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort
Worth 2000, pet. denied) (op. on reh’g).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001; see also § 161.206(a) (West 2008).
Evidence is clear and convincing if it “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.” Id. § 101.007 (West 2008). Due process demands this heightened
standard because termination results in permanent, irrevocable changes for the
parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
6
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573–
74. And even when credibility issues appear in the appellate record, we defer to
the factfinder’s determinations as long as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that Father
violated section 161.001(1)(D), (E), and (O) and that the termination of the
parent-child relationship would be in the best interest of K.H. Tex. Fam. Code
Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). 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 in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
7
B. Sufficient Evidence to Support Section 161.001(1)(O) Finding
In his fifth issue, Father argues that the evidence is factually insufficient to
support the trial court’s finding under section 161.001(1)(O). Father argues that
he completed all of the services requested of him by the Department, but he
does not address his compliance with the trial court’s order of April 7, 2010,
requiring him to complete eleven tasks in order for K.H. to be returned to him.
Family code section 161.001(1)(O) states,
The court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
....
(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to
obtain the return of the child who has 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 child’s removal from the parent under Chapter 262 for the abuse
or neglect of the child[.]
Tex. Fam. Code Ann. § 161.001(1)(O).
As set forth above, the record demonstrates that the trial court heard
testimony from the caseworker and Father that Father had not completed
individual therapy, that Father had not submitted to three requested drug tests
within twenty-four hours of the requests and had also tested positive for drug use
throughout the case, that Father had not followed all of the recommendations
from the drug assessment, that Father had not attended NA two times per week
8
and had not provided documentation of his attendance, that Father had not
obtained a sponsor, that Father had not maintained employment, and that Father
had not developed a support system to help him with K.H.
Father did not dispute that he had failed to comply with several provisions
of the trial court’s April 7, 2010 order; instead, he contended that his efforts to
complete a portion of the services constituted substantial compliance. The
statute, however, does not provide for substantial compliance. See In re M.C.G.,
329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (supp.
op. on reh’g) (stating that the family code does not provide for excuses for failure
to comply in assessing a statutory violation; any excuse goes only to the best
interest determination); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009,
no pet.) (stating that the family code does not provide for substantial compliance
with a family service plan). Giving due deference to the factfinder’s findings and
not supplanting the judgment with our own, we hold that, on the entire record, a
factfinder could reasonably have formed a firm conviction or belief that Father
had violated section 161.001(1)(O) by failing to fully comply with the trial court’s
April 7, 2010 order specifically establishing the actions necessary for Father to
obtain the return of K.H. See H.R.M., 209 S.W.3d at 108; In re C.M.C., 273
S.W.3d 862, 874–76 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding
evidence legally and factually sufficient to support section 161.001(1)(O) finding
because mother had failed to comply with numerous provisions of her service
plan); In re C.D.B., 218 S.W.3d 308, 312 (Tex. App.—Dallas 2007, no pet.)
9
(holding evidence legally and factually sufficient to support jury’s section
161.001(1)(O) finding, even though mother testified that she did not finish all the
services because she did not have transportation to some appointments and was
in jail at the time of some appointments). We overrule Father’s fifth issue.5
C. Sufficient Evidence to Support Section 161.001(2) Finding
In his first and second issues, Father argues that the evidence is legally
and factually insufficient to support the trial court’s best interest finding.
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
5
Because only one ground under section 161.001(1) is needed, we need
not reach Father’s third and fourth issues pertaining to the trial court’s findings
under subsections (D) and (E). See Tex. R. App. P. 47.1 (stating that appellate
court need only address every issue necessary to final disposition of appeal).
10
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley, 544 S.W.2d at 371–72.
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
1. K.H.’s Desires
Here, the record does not contain K.H.’s desires because K.H. did not
testify. The record reveals that Father visited with K.H. every two weeks for two
hours and said that K.H. was happy to see him “[a]ll the time” and that they have
a “great relationship.”
Guadalupe Palomino, a case aide with CPS who had supervised Father’s
visits with K.H., testified that Father was really good with K.H. and that K.H. loved
going to see Father. When Palomino picked up K.H. from his foster home, he
looked forward to visiting with Father and became excited to see him.
11
Jennifer Merritt, the caseworker, testified that Father and K.H. were
“somewhat close” and seemed to have fun together every other week at the
visits. Merritt also testified that K.H. was doing wonderfully in his foster
placement and that he loved his new home, which he had been in for
approximately seven months at the time the termination trial concluded.
The trial court was entitled to find that this factor weighed neither in favor
of nor against termination.
2. K.H.’s Emotional and Physical Needs Now and in the Future
With regard to K.H.’s emotional and physical needs now and in the future,
the record revealed that K.H. was “very smart,” “very verbal,” was
developmentally on target (having completed speech therapy while in care), and
did not appear to have any special or mental health needs. As a three-and-a-
half-year-old boy, K.H. undoubtedly required safe, stable housing and financial
provision. Father, however, was not supporting K.H. financially or emotionally
when the case started, and that had not changed significantly by the time of the
termination trial. And as set forth in more detail below, Father was unable to
provide safe, stable housing for K.H. The trial court was entitled to find that this
factor weighed in favor of termination.
3. Emotional and Physical Danger to K.H. Now and in the Future
With regard to the emotional and physical danger to K.H. now and in the
future, Merritt testified that Father’s drug use at the time of the termination trial
was “still consistent, which would affect the child.” Merritt recalled that Father’s
12
psychological evaluation revealed that he had continued drinking after being
required to install an interlock device on his car and that it would take him twenty
to thirty minutes to pass the test. Father’s personality disorder diagnosis (which
included substance abuse issues and antisocial personality disorder), as well as
his dangerous decisions that related to law violations, concerned Merritt.
Moreover, throughout the case Father had shown instability in his employment
and an inability to obtain safe housing; Father had made the decision to live in a
home with people who had abused him and acknowledged that the home
environment would be hostile to K.H. because his father did not like that K.H.
was biracial. The trial court was entitled to find that this factor weighed in favor of
termination.
4. Father’s Parental Abilities
With regard to Father’s parental abilities, Palomino testified that during the
visits, no threat of any violence or danger was observed with regard to Father’s
treatment of K.H., and Father never appeared to be under the influence of drugs
or alcohol at the visits. Father communicated with K.H. in an appropriate
manner, played with whatever toys K.H. wanted to play with during the office
visits, and played with him on the playground equipment when the visits were
held at the park. Palomino testified that it appeared that Father and K.H. had fun
together. Father appropriately redirected K.H. when he got into something that
he should not play with. Palomino said that Father’s absences were few and far
between.
13
Father had completed the parenting classes and testified that he did not
think using drugs was an appropriate parenting decision. Father, however,
believed that he could parent properly after using amphetamines, cocaine, or
marijuana. Father denied that he was committing an act of endangerment to
K.H. each and every time he used illegal drugs. During his psychological
evaluation, Father said that his problems with drinking and using drugs were in
the past and that it was no longer an issue for him. This was not consistent with
evidence that Father had submitted drug tests and hair tests showing that he had
used drugs throughout the three years that the case was pending.
Because of his drug use, Merritt thought that Father had not demonstrated
that he is ready to be a dad to his son. Moreover, Merritt did not think that Father
had exhibited the behavior that would show that he could provide a loving,
nurturing, and stable environment for K.H. Merritt testified that Father appears to
have a “very buddy” relationship with K.H.; Merritt would not say that Father is “a
complete parent figure.”
Dr. Wiggins testified that Father
has personality disorder traits [Axis 1 substance abuse issues and
Axis 2 antisocial personality disorder] that will lead to chronic
substance and alcohol abuse issues, most likely. That will lead to
repeated difficulties with the law. That it will be the type of person
who is not going to show any stability or consistency in terms of his
responsibilities in life.
14
According to Dr. Wiggins, Father talked very lovingly about his son but did not
seem to have a realistic understanding of how to provide for him.6
The trial court was entitled to find that this factor weighed in favor of
termination.
5. The Parties’ Plans for K.H. and Programs to Assist His Best Interests
With regard to Father’s plans for K.H., the Department acknowledged that
Father loved K.H. very much and always expressed the desire to have his son
live with him. Father, however, was being financially supported by his father, did
not have any money saved up, and had not purchased any furniture for K.H.
Father testified that he was ready for K.H. to go home with him even though he
would be homeless because his father and uncle would not allow K.H. to live with
them.
Sharon Giraud, the attorney ad litem for K.H., asked that Father’s parental
rights be terminated. She said that the issues of housing and drug addiction had
not been cleared up during the three and half years that the case was pending.
She also mentioned that Father appeared to be “a great babysitter” but that she
did not see a parental bond there.
According to Merritt, the Department believed that it was in K.H.’s best
interest for Father’s parental rights to be terminated. Merritt asked the trial court
to terminate Father’s parental rights, so that the foster parents could adopt K.H.
6
Father admitted that he had fathered another child whom he had not
parented and for whom he had not done anything to establish his paternity.
15
The record revealed that the foster family “has all kinds of programs available to
assist them,” including counseling for K.H., if necessary, and that K.H. would be
covered with medical insurance.
The trial court was entitled to find that these factors weighed in favor of
termination.
6. The Stability of the Home or Proposed Placement
During the three years that Merritt worked the case, Father had only one
residence: he lived with his father and uncle. K.H. had never lived with Father.7
Merritt testified that Father’s housing was stable but not appropriate. Father told
Merritt that a police officer had recently moved close by and that his father and
uncle had to smoke marijuana inside the house instead of outside. Additionally,
Father’s father told Merritt in May 2010 that K.H. would not be welcome in the
home because he was biracial. Thus, Father did not have a home that he could
take K.H. to and had not secured one for three years. Merritt was therefore
concerned about Father’s ability to find his own housing. Father said that he
would be living on the street if he was not living with his father and his uncle.
And Father agreed that if the court returned K.H. to him, K.H. would either live in
an environment that would be hostile to him or that he would be homeless.
7
Merritt located Father when K.H. was approximately seven months old,
and Father’s service plan, which included visitation with K.H., was implemented
at that time.
16
Because Father was still living with his father at the time of the termination trial,
Dr. Wiggins opined that Father was stuck and was not ready to make changes.
Merritt testified that K.H. was living in a foster home with a biracial couple.
K.H. was doing wonderfully in his foster placement; he had opened up and was
talking very well. He loved his new home, which he had been in since November
2010.
The trial court was entitled to find that this factor weighed in favor of
termination.
7. Father’s Acts or Omissions that May Indicate that the Existing Parent-
Child Relationship Is Not a Proper One
The record details Father’s criminal history. Father pleaded guilty to the
misdemeanor offense of possession of marijuana in 2006 (which was committed
on June 21, 2005), was placed on community supervision for twelve months, was
later adjudicated guilty for violating the conditions of his community supervision,
and was sentenced to thirty days in jail and fined $100. Father pleaded guilty to
failing to stop at an accident that occurred on June 10, 2007, and was sentenced
to thirty days in jail. Father pleaded guilty to the misdemeanor offense of
possession of marijuana in 2008 (which was committed on August 17, 2007) and
was sentenced to thirty days in jail. Father was convicted for the February 5,
2008 offense of driving while intoxicated with an open container.
17
Carol Blackmon, the executive director of Merit8 Counseling Services,
testified that Father was not open and honest about the level of his addiction
during his drug assessment. But at trial, Father admitted to being a drug addict
and testified that he had been addicted to drugs since high school. While the
case was pending, Father took a hair strand drug test in April 2009 and tested
positive for amphetamines, cocaine, and ecstasy; a hair strand test in October
2009 tested positive for cocaine; while Father was in drug counseling, he tested
positive for cocaine on July 13, 2010; a hair strand collected on September 30,
2010, tested positive for cocaine, the amount indicated to Merritt that Father had
continued to use illegal substances all along; and a hair follicle test from May 4,
2011, tested positive for cocaine and marijuana. On April 13, 2011, Father told
Merritt that he had last used cocaine four or five months prior and had not “used
weed in a while.” Father admitted that he did not take advantage of all of the
programs that he was offered to help with his drug addiction.
Father had obtained his GED and was completing classes to become a
physical trainer. Father’s employment history was sporadic, and he relied on his
father for financial provision. He said that he had found a job in March 2011, but
he had not shown Merritt any paystubs and admitted that he did not have enough
money to secure an appropriate living arrangement. Father had a child support
arrearage of $2,975.65 at the time of the termination trial.
8
This entity’s name is spelled a variety of ways in the reporter’s record, but
this is the correct spelling.
18
The trial court was entitled to find that this factor weighed in favor of
termination.
8. Excuses for Father’s Acts or Omissions
Merritt testified that Father had not given her any excuses for his continued
illegal drug use. During Father’s testimony, he said that he did not submit to
three drug tests within twenty-four hours of the requests because one time he did
not have any identification and other times he did not have transportation. Father
said that he was not notified in 2011 that he had failed any drug tests. Father
also complained that it was hard to develop a parent-child relationship because
he was allowed to see his son only four hours per month. The trial court was
entitled to find that this factor weighed in favor of termination.
9. Analysis of Factors
After weighing the evidence as it relates to the Holley factors, we hold that
the evidence is both legally and factually sufficient to support the trial court’s
finding that termination of Father’s parental rights to K.H. is in his best interest.
See Tex. Fam. Code Ann. § 161.001(2); Jordan v. Dossey, 325 S.W.3d 700, 733
(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding evidence legally and
factually sufficient to support the trial court’s finding that termination of mother’s
parental rights was in child’s best interest when most of the best interest factors
weighed in favor of termination); In re U.P., 105 S.W.3d 222, 230–32 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied) (holding evidence legally and
factually sufficient to support best interest finding because, among other things,
19
father had abused drugs for years, could not provide a permanent home, had
been convicted of two crimes, and had failed to provide child support). We
overrule Father’s first and second issues.
IV. CONCLUSION
Having overruled all of the issues necessary for final disposition of this
appeal, we affirm the trial court’s judgment terminating Father’s parental rights to
K.H.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: July 12, 2012
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