in the Interest of C.C., a Child ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00147-CV
IN THE INTEREST OF C.C., 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
In one issue, Appellant Mother appeals the termination of her parental
rights to C.C., complaining that the evidence is factually insufficient to support the
trial court’s best interest finding. We affirm.
II. Factual and Procedural History
Two Child Protective Services (CPS) employees and Mother testified at
the termination trial in April 2010. Mother was incarcerated in state jail at the
1
See Tex. R. App. P. 47.4.
time of the trial, and her earliest release date was half a year away, in October
2010. She was also incarcerated at the time she gave birth to C.C., the youngest
of her five children.
Mother testified about her other children2: Jeremy, age twenty-two, lived
with Mother until he was around age fourteen or fifteen. Mother testified that she
wrote to Jeremy once a week while he was incarcerated in the Hood County Jail.
Darren, age twenty, lived with Mother until he was around twelve years old. He
has also been incarcerated. Damon, age fifteen, lived with Mother until he was
three years old. Jeffrey, born in 2005, was removed from Mother before his first
birthday and lives with one of Mother’s sisters. C.C. has never lived with Mother.
Mother’s criminal convictions were admitted through the testimony of
Christy Shidal, the CPS investigator, set out as follows:
On December 17, 2001, Mother was convicted of third degree felony injury to
a child. After pleading guilty, she received two years’ confinement as
punishment. The indictment alleged that Mother struck, scratched, and bit
Jeremy, who was younger than age fifteen at the time.3
On May 7, 2001, Mother was convicted of misdemeanor assault causing
bodily injury to a family member after pleading guilty in exchange for six days
in jail.
On August 21, 2006, Mother was convicted of misdemeanor assault causing
bodily injury to a family member after pleading guilty in exchange for forty-five
days in jail.
2
We use pseudonyms to protect the children’s identities.
3
Mother testified that she was high on drugs at the time and did not recall
biting or fighting him.
2
On January 30, 2008, Mother was convicted in two cases of state jail felony
fraudulent use or possession of identifying information after pleading guilty in
exchange for 200 days’ jail time in each case, to be served concurrently.
On January 21, 2010, Mother made an open plea of guilty to a state jail felony
possession of a controlled substance (methamphetamine) charge and made a
plea in bar of an unadjudicated 2008 assault causing bodily injury of a family
member charge. She received three years’ confinement as punishment.
Some of Mother’s CPS history involving her other children was admitted
through the testimony of her CPS caseworker Carressa Cherry:
In May 1999, CPS ruled ―reason to believe‖ negligent supervision of Damon.
In March 2001, CPS ruled ―reason to believe‖ physical abuse of Jeremy and
Darren.
In April 2007, CPS ruled ―reason to believe‖ negligent supervision of Jeffrey.
Mother was nine months’ pregnant with C.C. when she was arrested for
possession of methamphetamine, and she admitted that she used
methamphetamine throughout her pregnancy with C.C. Mother started using
methamphetamine twelve years before C.C.’s birth, ―when they took [her] first
child,‖ and has been addicted ever since. The longest period of time that she
has been off of drugs is two years, while incarcerated. Mother also testified
about her abusive relationship with Darren’s father, with whom she stayed with
for ―umpteen years.‖
Cherry testified that Mother did not complete her service plan, but Mother
did complete some services available to her in prison, such as Community
Addiction Treatment Services (CATS) and Alcoholics Anonymous, in addition to
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bible study. Mother testified that she never received the revised service plan,
which Cherry claimed she sent regarding services Mother could receive while
incarcerated, and that she had never taken a parenting class or an anger
management class. Mother asserted that during her most recent stay in jail, she
had changed, stating, ―I’ve taken a year to change my attitude and my ways, my
way of thinking. I went to every available class that there is. I’m a better person
from who I was to who I am.‖
Mother was diagnosed by Tarrant County MHMR with severe depression
and methamphetamine addiction and takes medication for her depression. She
disagreed that she had tried to interfere with a relative’s permanent managing
conservatorship of Jeffrey, her second youngest child—one of the reasons
Cherry gave for the Department of Family and Protective Services (DFPS)
seeking to terminate Mother’s parental rights and to seek adoption by relatives in
C.C.’s case.
Mother testified that upon her release from prison, she planned to continue
services to help treat her drug addiction, and until she could properly provide for
C.C., she wanted him to remain with her sister. She stated that she had no
employment opportunities lined up for after her release from jail and that, from
age eighteen to thirty-eight, the longest period of time that she has ever held a
job was two to three years. Although under a court order to pay child support,
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she has never done so. She testified that she would probably move in with
Jeffrey’s father when released from jail.
Cherry testified that Mother’s sister and her husband wanted to adopt C.C.,
and no one disputed that, in Mother’s words, it was best for C.C. ―to be where
he’s at.‖ Mother stated, ―I know that my sister has a loving and stable home,‖ but
she asked the trial court to make her sister C.C.’s permanent managing
conservator instead of terminating her parental rights to him. Cherry testified that
Mother’s parental rights to C.C. should be terminated because
[a]t this time, [Mother] is not able to parent [C.C.] I have not been
able to see first-hand her interaction or parenting skills with him
because she has been incarcerated the length of this case;
however, [Mother’s] previous history indicates that she has difficulty
with violence, criminal involvement, and drug abuse.
[Mother] has other children she was unable to raise due to her
drug abuse and unsafe environment.
[Mother] has not been able to provide a safe environment for
her other children. There has been a pattern of behavior that’s
spanned at least 12 years, including numerous criminal convictions
and CPS history.
She added that Mother had other children that are being raised by relatives
because of her inability to provide for them and to protect them, 4 and Mother’s
history of violence and inability to raise her other children indicated that she
would also be unable to raise C.C.
4
Mother testified that she retained the parental rights to all of her other
children.
5
C.C. was placed in foster care after his birth on June 5, 2009, and the trial
court appointed Mother’s sister and her husband as C.C.’s temporary possessory
conservators on December 3, 2009, after CPS performed a home study. Cherry
described C.C. as a very well-adjusted, happy baby.
Cherry described the parenting skills of Mother’s sister and husband,
stated that they have created a ―very loving, stable home‖ for him, and added,
They’ve lived in the same residence for over 19 years. They have a
very stable, loving relationship with one another as well as with
[C.C.], and their older son, I’ve watched this interaction on numerous
occasions. They have maintained continued contact with [C.C.],
even before he was placed in their home. They visited him and
maintained that contact with him. They’ve been probably the most
stable adults in his life since his birth, because they were visiting
even beforehand, before he was placed in their home. The home is
very well-maintained, it’s a quiet neighborhood, they do have a
security system. There are no safety hazards in the home.
She described Mother’s sister and husband as employed and with the financial
means to provide for C.C. Cherry stated that they told her that they would not
hesitate to call the police or CPS if anyone, including a family member, were to
threaten C.C.’s well-being and that they have called the police on Mother before
with regard to protecting Mother’s other children.
The trial court found by clear and convincing evidence that Mother
knowingly placed or knowingly allowed C.C. to remain in conditions or
surroundings that endangered his physical or emotional well-being, that she
engaged in conduct or knowingly placed C.C. with persons who engaged in
conduct that endangered his physical or emotional well-being, and that
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termination of Mother’s parental rights was in C.C.’s best interest. 5 See Tex.
Fam. Code Ann. § 161.001(1), (2) (Vernon Supp. 2010). This appeal followed.
III. Factual Sufficiency
In her sole issue, Mother complains that the evidence is factually
insufficient to support the trial court’s best interest finding. She does not appeal
the trial court’s endangerment finding.
A. Standard of Review
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). ―While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
5
The trial court terminated C.C.’s father’s parental rights after he executed
a voluntary affidavit of relinquishment.
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proceedings and strictly construe involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex.
App.—Fort Worth 2008, no pet.).
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; 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).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001, § 161.206(a) (Vernon 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 (Vernon 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 must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
8
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we must determine
whether, on the entire record, a factfinder could reasonably form a firm conviction
or belief that termination of the parent-child relationship would be in the best
interest of the child. Tex. Fam. Code Ann. § 161.001(2); C.H., 89 S.W.3d at 28.
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.
B. Best Interest
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) (Vernon 2008). In
evaluating the parent’s willingness and ability to provide the child with a safe
environment, we consider the factors set out in family code section 263.307(b).
Id. § 263.307(b) (Vernon 2008). Other, 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;
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(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).
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. Analysis
Mother argues that the evidence is factually insufficient to support the trial
court’s best interest finding because although there was evidence of her past
poor decision making and criminal conduct, there was insufficient evidence of
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each Holley factor for the trial court to form a firm belief or conviction that
termination was in C.C.’s best interest. Specifically, she complains that there
was little or no evidence to show (1) that C.C. has any special physical or
emotional needs beyond those of a normal child; (2) that DFPS offered little
evidence regarding whether Mother could meet C.C.’s physical and emotional
needs in the future; (3) that DFPS offered little evidence regarding whether
Mother would endanger C.C. in the future; (4) that no clear and convincing
evidence of her ability or inability to parent C.C. exists; and (5) that there was no
evidence presented of programs or financial assistance available to aid Mother in
serving C.C.’s best interest in the future.
Mother relies on In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort Worth
2003, no pet.), and In re D.T., 34 S.W.3d 625, 642 (Tex. App.—Fort Worth 2000,
pet. denied), to support her factual insufficiency argument. Both cases are
inapposite.
In W.C., DFPS removed the children from their mother because she failed
to protect them from their father, who resumed his physical and sexual abuse of
the children after she allowed him back into the family home upon his release
from jail on a conviction for injury to a child. 98 S.W.3d at 755–56. The record
reflected that the mother was devastated when she learned about the sexual
abuse and threw away everything—including furniture—that would remind the
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children of their father and the abuse they suffered at his hands. Id. at 761–62,
764.
We held that the evidence on the best interest finding was factually
insufficient because, among other things, the mother fully complied with her
service plan in all respects except for her court-ordered child support payments,
she visited her children regularly and used proper discipline, she maintained
suitable employment, she lived in her own apartment deemed by DFPS as a
―safe living environment,‖ and she ―made significant progress in alleviating the
causes for the children’s removal from her home.‖ Id. at 765. And we stated that
while there was evidence of past poor parenting skills, poor decision making, and
inadequate protection of the children, because the mother did everything she had
been asked to do and because no significant event occurred between the time
DFPS planned to return the children to her and the time of the termination trial,
the evidence to support the best interest finding was factually insufficient. Id. at
766 (―We conclude that this case is one where appellant’s offensive behavior is
not egregious enough, on its own, to warrant a finding that termination is in the
children’s best interest.‖).
Likewise, in D.T., DFPS’s predecessor agency conceded that the mother
complied in all possible respects with her service plan, and the record reflected
that the mother’s overall concern was ensuring her child’s safety. 34 S.W.3d at
640. That is, the mother herself contacted the agency to temporarily place the
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child after she was arrested, and she attempted to comply as fully as possible
with the goals and objectives the agency required to facilitate reunification. Id.
While in prison, she wrote letters to inquire about her child and to request
photographs and visits, and she participated in classes and counseling sessions.
Id. Additionally, the underlying offense for which she went to prison was writing
bad checks, not using or possessing illegal drugs. Id. at 637.
Here, Mother openly admitted to the trial court that her sister’s home was
the best place for C.C. From this admission, and all of the other evidence
presented at trial, the trial court could have concluded that terminating Mother’s
parental rights to C.C. so that Mother’s sister could adopt him would be in C.C.’s
best interests. That is, Mother’s own criminal history includes a conviction for
injury to a child and several convictions for assault on family members, as well as
drug use, unlike either parent in W.C. or D.T. See In re D.M., 58 S.W.3d 801,
814 (Tex. App.—Fort Worth 2001, no pet.) (―While Appellant’s history,
admissions, and conduct relating to drug abuse, and her inability to maintain a
lifestyle free from arrests and incarcerations[,] support the jury’s endangerment
finding, this evidence is also relevant to a best interest determination.‖). Further,
her history of abusive relationships shows that she has been both abuser and
abused and, contrary to Mother’s assertion that no clear and convincing evidence
of her inability to parent exists, her CPS history and her two oldest children’s
incarcerations seem to demonstrate that she has already failed twice to
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successfully raise children to become law-abiding adults. Finally, from her
inability to explain how she would take care of herself, let alone a very young
child, once released from jail, the trial court could have reasonably formed a firm
conviction or belief that termination of the parent-child relationship would be in
C.C.’s best interest.6 See Tex. Fam. Code Ann. § 161.001(2); C.H., 89 S.W.3d
at 28. We overrule Mother’s sole issue.
IV. Conclusion
Having overruled Mother’s sole issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, J.; LIVINGSTON, C.J., and DAUPHINOT, J.
DELIVERED: December 23, 2010
6
DFPS did not have to present evidence that C.C. had any special needs
or that there could be programs or financial assistance available to Mother in the
future for the evidence, based on the entire record in this case, to be factually
sufficient. See C.H., 89 S.W.3d at 27 (noting that not all Holley factors may be
applicable in any given case).
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