in the Interest of J.D.S., Jr., K.L.S., and D.A.S. ( 2012 )


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  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00272-CV
    IN THE INTEREST OF J.D.S., JR.,
    K.L.S., AND D.A.S.
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    FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
    ----------
    MEMORANDUM OPINION1
    ----------
    I. Introduction
    Appellant L.E. (Mother) appeals the judgment terminating her parental
    rights to three of her children, J.D.S., Jr.; K.L.S.; and D.A.S. She argues in one
    issue that the evidence is factually insufficient to prove that termination of her
    1
    See Tex. R. App. P. 47.4.
    parental rights is in the children’s best interest. Mother does not challenge the
    trial court’s section 161.001(1) findings. We affirm.
    II. Background
    Trial to the court began on June 20, 2011. J.D.S., K.L.S., and D.A.S. were
    eight, six, and four years old, respectively, at the time. Each of the children’s
    fathers either failed to appear at trial or signed an affidavit relinquishing parental
    rights, and only Mother has appealed the trial court’s judgment.
    In September 2007, Mother placed her children into the backseat of a
    vehicle in which she was a passenger. Mother admittedly failed to restrain the
    children with seatbelts or child-safety seats, and they were each ejected from the
    vehicle and injured when the vehicle was involved in a collision. The Department
    of Family and Protective Services (the Department) removed the children from
    Mother’s care for approximately six months after the accident.          Mother later
    pleaded guilty to one count of child endangerment, and the trial court placed her
    on community supervision for three years.
    The Department received a second referral concerning the children in
    October 2008, this one alleging drug use, domestic violence, and physical abuse
    of the children by Mother’s then-boyfriend C.G.         Mother denied any recent
    domestic violence or drug use. J.D.S. was interviewed and described hiding a
    few months earlier with his sisters and seeing adults hitting each other. J.D.S.
    also talked about wanting to call 9-1-1 but being afraid to do so, saying that he
    2
    “would get a whooping.” The Department did not remove the children at the time
    based on insufficient evidence of ongoing domestic violence.
    In September 2009, J.D.S.’s school counselor called Mother’s house
    because J.D.S. had missed two or three consecutive days of school. Six-year-
    old J.D.S. answered the telephone and talked with the counselor for thirty to
    forty-five minutes, telling her that he had been home alone with his sisters for
    what the counselor believed was about two hours.2 The counselor testified that
    she could hear screaming in the background and that she stayed on the
    telephone with J.D.S. until the school’s liaison officer arrived to check on the
    children’s welfare. In addition, a teacher from J.D.S.’s school testified that she
    had seen Mother, during the fall of 2009, transport the children after school by
    car “many times” without safety restraints. Also during the fall of 2009, J.D.S.
    had twenty-two unexcused absences, nine excused absences, and nineteen late
    arrivals, and K.L.S. had twenty-six unexcused absences, twelve excused
    absences, and thirteen late arrivals.    J.D.S.’s teacher testified that he was
    disruptive in class and behind academically, and she said that J.D.S. was
    depressed and crying at school four out of five days per week.
    In January 2010, the Department received another referral involving
    domestic violence in Mother’s home. C.G. pushed Mother, and Mother hit C.G.
    2
    The counselor had asked J.D.S. about the television shows he had
    watched while home alone and checked the television show times to calculate
    the length of time the children were home alone.
    3
    with a candlestick holder. The children were removed and placed into foster care
    following this incident. Mother subsequently pleaded guilty to assault causing
    bodily injury to a family member and was sentenced to forty-five days’
    incarceration. Because of the new assault conviction, Mother also had pending
    at the time of trial a motion to adjudicate guilt for the 2007 child endangerment
    charge, and she faced the possibility of further incarceration.
    During the spring of 2011, the Department considered placing the children
    with Mother’s grandmother, A.B., and the Department arranged for the children to
    have nine visits with A.B. at her home. The Department discontinued the visits,
    however, because Department personnel believed that A.B. was permitting
    Mother to visit the children despite repeated instructions to not allow Mother
    access to the children during the visits. Department caseworker Tyra Sasita
    testified that the children reported being told to lie to the Department about
    seeing Mother during the visits.
    III. Discussion
    Mother argues that the evidence is factually insufficient to support the trial
    court’s finding that termination is in the children’s best interest.
    A. Standard 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
    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.
    4
    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 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 the
    termination of the parent-child relationship would be in the best interest of the
    child. 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
    5
    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
    .
    B. Best Interest Considerations
    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). In
    determining the best interest of the child, the trier of fact in a termination case
    may use the following factors:
    (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;
    (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 v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976) (citations omitted).
    6
    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. C. Application
    There is no question that the children love Mother and A.B., are bonded
    with their family, and want to return home or to live with A.B. Mother notes the
    children’s fear of returning home if C.G. were still there but points to her
    testimony that she is no longer in a relationship with C.G.         The Department
    counters that the children’s fear of C.G. reflects that “[e]ven these small
    children . . . understood that returning to [Mother’s] care might not be in their best
    interest.” In that regard, the children’s counselor testified that K.L.S. likes the
    safety of foster care, that the children spoke of the domestic violence they had
    witnessed in Mother’s home, that the children had bonded with their foster
    mother, and that the children were not so attached to Mother and their biological
    family that they could not be successful if Mother’s parental rights were
    terminated. See In re A.C.H., No. 02-11-00072-CV, 
    2012 WL 1345759
    , at *12–
    13 (Tex. App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op.) (affirming best
    7
    interest finding but noting strong bond between children and parents despite
    history of domestic violence).
    Mother testified that she had not been in an abusive relationship during the
    eighteen months before trial, and she argues that termination is not proper
    because she has distanced herself from previous abusive relationships.
    However, Mother has an almost ten-year history of being in abusive
    relationships. Both of the childrens’ fathers and C.G. physically abused Mother,
    and Mother pleaded guilty to assaulting C.G. J.D.S. has nightmares about C.G.
    hitting him and his sisters.       Moreover, Mother pleaded guilty to child
    endangerment following the 2007 car accident in which all three children were
    ejected from the vehicle, and the trial court heard testimony that Mother was, two
    years later, still transporting the children by vehicle without proper restraints.
    Mother also left the children at home alone without adult supervision on at least
    one occasion; they were alone for at least thirty minutes because the school
    counselor was on the telephone with J.D.S. for that long before police arrived.
    J.D.S. and K.L.S. had excessive absences from school, and J.D.S. has
    struggled academically. Mother acknowledges that the children had academic
    and behavioral issues, but she argues that the evidence does not show that
    termination would address their needs because the children had made only
    minimal progress in foster care. There is evidence, however, that the children’s
    academic and behavioral problems resulted from living in Mother’s home. The
    children have had extreme temper tantrums, with one such tantrum by D.A.S.
    8
    lasting a full hour during a parental visitation.     The children’s behavior was
    referred to as “Abuse Reactive Behavior,” which their counselor described as “a
    trauma response” seen in “children who have been in an abusive environment,
    and they act out aggressively. It’s a way of when they have felt powerless they
    want to compensate for those feelings by being aggressive toward other
    children.”
    The counselor described J.D.S. as very impulsive, very moody, overly
    sensitive to criticism, angry, and physically and verbally aggressive. She testified
    that he has poor social skills, relationship problems with “just about everyone,”
    tantrums, and poor self-management skills, and she said that he bullies his
    siblings. She also described J.D.S.’s nightmares, saying that he “talks about
    having dreams of a sex offender ghost.” The counselor testified that K.L.S. is
    also physically and verbally aggressive and moody; that she is disruptive at
    school, easily distracted, and very disrespectful to adults; and that she has
    relationship problems and nightmares about people fighting.           Four-year-old
    D.A.S. is similarly physically and verbally aggressive, moody, angry, and defiant,
    and she cries easily. She also uses foul language and has poor social and
    relationship skills.    There is testimony that the children will require long-term
    counseling and academic guidance and that they need a caregiver with strong
    parenting skills.      See In re J.L.B., 
    349 S.W.3d 836
    , 848–49 (Tex. App.—
    Texarkana 2011, no pet.) (affirming best interest finding and noting among other
    things that children’s emotional and physical needs would be better served with
    9
    parents more like their foster mother, that the children needed therapy, and that
    they had delayed intellectual, social, and emotional development).
    Mother has been diagnosed with a bipolar disorder. Dr. Balla testified that
    although Mother is capable of learning, stress and new situations are difficult for
    her, and Mother’s counselor testified that Mother could benefit from further
    counseling. Mother argues that counseling would still be available to her if her
    parental rights are not terminated, and she points to evidence that she can
    adequately parent the children once her bipolar disorder is stabilized with
    medication, a process that can take twelve months and that can require continual
    medication adjustments, and she notes that she did not ask the trial court for
    immediate custody of the children. Mother also points to evidence that she had
    completed most of her service plan, that drugs are not a problem for her, and that
    she had allegedly done reasonably well during her community supervision
    following her assault conviction. Mother, however, did not show up for her first
    six individual counseling appointments. She also told the caseworker that she
    would not work any other services until the Department returned the children to
    her or gave them to A.B. See In re A.W.B., No. 14-11-00926-CV, 
    2012 WL 1048640
    , at *6 (Tex. App.—Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem.
    op.) (noting in best interest review that the mother did not complete psychiatric
    therapy despite her knowledge that failure to do so could result in termination of
    her parental rights).   The Department also attempted group counseling for
    Mother, Mother’s mother, and A.B. The attempt was unsuccessful, however,
    10
    because the women insisted that they did not want group therapy, that they
    already had ways of working through issues in their relationships, and that they
    did not see the need or potential benefit of therapy. The women attended only
    one group therapy session.
    The trial court also heard testimony that Mother had not shown a
    willingness to learn and had instead blamed the children for not yet being
    returned to her.   Moreover, Mother interacted appropriately with the children
    during only about five out of more than twenty visitations, sometimes sleeping
    and often completely withdrawing from the children. Witnesses reported hearing
    Mother mock the children for having nightmares and telling them they would
    never come home if they continued talking to Department personnel.           The
    caseworker testified that Mother and A.B. instructed the children not to tell
    anyone that Mother had been present at A.B.’s home during visitations in 2011,
    telling J.D.S. that he would get a “whooping” if he told Department personnel the
    truth. K.L.S. reportedly told Mother that the Department was watching her, and
    Mother responded by telling K.L.S. to “shut up.” See Sanders v. Tex. Dep’t of
    Protective & Regulatory Servs., No. 03-03-00633-CV, 
    2004 WL 1269335
    , at *4
    (Tex. App.—Austin June 10, 2004, no pet.) (mem. op.) (affirming best interest
    determination and noting that father did not understand reasons for child’s
    removal, blamed others, and did not avail himself of services offered to regain
    possession of child).
    11
    The children’s foster mother did not testify at trial, and there is evidence
    that she had given the Department a thirty-day notice, meaning the Department
    had to find a new placement for the children. There is no evidence of where the
    children were subsequently placed, and other than continuing the children in
    counseling, the Department’s plans for the children (such as eventual adoption)
    were not set forth at trial. Even so, Mother had a pending motion to adjudicate
    guilt for the 2007 child endangerment charge and faced the possibility of
    incarceration. In addition, Mother had not located stable housing in the almost
    eighteen months following the children’s removal in February 2010. She testified
    that she had applied for housing through her MHMR caseworker but that she was
    on a waiting list, and Mother acknowledged that she did not currently live in a
    home suitable for the children.     Moreover, Mother’s income is approximately
    $500 per month in social security benefits, and she has a $300 per month car
    payment.    See 
    R.R., 294 S.W.3d at 237
    (explaining that father’s difficulty
    maintaining safe and stable housing, inconsistent employment history with no
    guaranteed income, and inappropriate choices that endangered children
    demonstrated that termination of parental rights was in children’s best interest).
    Mother’s plan is for A.B. to have custody of the children until Mother is able
    to assume custody. A.B. testified that she wants the children to go to school,
    church, and college and to be the best persons they can be. The Department
    argues, however, that Mother’s plan is untenable. In that regard, the trial court
    heard evidence concerning A.B.’s fitness to have custody of the children.
    12
    Despite repeated instructions in 2011 that Mother was not to be present or have
    access to the children during visitations at A.B.’s home, the children reported that
    Mother attended the visitations.    A.B. had also allowed Mother unsupervised
    access to the children in 2008 against the Department’s instructions, and the
    caseworker testified that A.B. does not see that Mother has engaged in
    endangering conduct toward the children. Although A.B. testified that she would
    follow the Department’s instructions and any court orders if she had possession
    of the children, the trial court could have disbelieved her testimony and could
    have instead believed, based on all the evidence, that A.B. would give the
    children to Mother or allow Mother improper access to the children if A.B. thought
    the Department would not know about it.
    Moreover, A.B.’s availability for placement is not itself a bar to the
    termination of Mother’s parental rights. As we have stated,
    Reasonable efforts should be made with respect to a child to be
    placed in foster care to preserve and reunify families and to give
    preference to an adult relative over a non-related caregiver in
    determining the placement of a child. In re C.C., No. 02-04-00206-
    CV, 
    2005 WL 1244672
    , at *6 (Tex. App.—Fort Worth May 26, 2005,
    no pet.) (mem. op.) (citing 42 U.S.C.A. § 671(a)(15)(B), § 671(a)(19)
    (2003)). However, Appellant provides no authority to suggest that
    there is either a statutory or a common-law duty imposed on the
    Department to make such a placement or to investigate such a
    placement before a party’s parental rights may be terminated. The
    determination of where the child will be placed is a factor in
    evaluating the child’s best interest, but it is not a bar to termination
    that placement will be with non-relatives. 
    Id. at *7;
    Rogers v. Dep’t
    of Family and Protective Servs., 
    175 S.W.3d 370
    , 379 (Tex. App.—
    Houston [1st Dist.] 2005, pet. dism’d w.o.j.).
    13
    In re K.W., No. 02-09-00041-CV, 
    2010 WL 144394
    , at *10 (Tex. App.—Fort
    Worth Jan. 14, 2010, no pet.) (mem. op.). Thus, A.B.’s willingness to accept
    placement is but one consideration in the overall determination of whether
    termination of Mother’s parental rights is in the children’s best interest.
    Although much of it was contested and conflicting, the trial court heard
    evidence that Mother personally endangered the children by transporting them in
    vehicles without safety-restraints; by exposing them to years of domestic
    violence that led to their nightmares, fears of returning home, and behavioral
    problems; by failing to ensure their routine and timely attendance at school; and
    by failing to recognize the risks to which she exposed the children and the need
    for change. The trial court also heard evidence that A.B. did not recognize the
    safety risks to the children caused by Mother’s acts and omissions or the need
    for Mother to change and that A.B. repeatedly ignored the Department’s
    admonitions to limit or prevent Mother’s access to the children. Based on all the
    evidence, the trial court could have agreed with the court-appointed special
    advocate’s testimony that termination of Mother’s parental rights was in the
    children’s best interests. Thus, after reviewing the entire record and giving due
    deference to the trial court’s findings, we hold that a factfinder could reasonably
    form a firm conviction or belief that termination of the parent-child relationship
    between Mother and the children would be in the children’s best interests. See
    
    H.R.M., 209 S.W.3d at 108
    ; 
    C.H., 89 S.W.3d at 28
    ; see also Tex. Fam. Code
    Ann. § 161.001(2). We therefore hold that factually sufficient evidence supports
    14
    the trial court’s determination that termination of the parent-child relationship
    between Mother and the children is in the children’s best interests. We overrule
    Mother’s sole issue.
    IV. Conclusion
    Having overruled Mother’s sole issue, we affirm the trial court’s judgment.
    ANNE GARDNER
    JUSTICE
    PANEL: GARDNER, MEIER, and GABRIEL, JJ.
    DELIVERED: June 14, 2012
    15