in the Interest of S.L.L., Minor Child ( 2011 )


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  •                                 MEMORANDUM OPINION
    No. 04-11-00115-CV
    IN THE INTEREST OF S.L.L., a Child
    From the 131st Judicial District Court, Bexar County, Texas
    Trial Court No. 2010-PA-00704
    Honorable John D. Gabriel, Jr., Judge Presiding
    Opinion by:      Rebecca Simmons, Justice
    Sitting:         Karen Angelini, Justice
    Rebecca Simmons, Justice
    Marialyn Barnard, Justice
    Delivered and Filed: August 31, 2011
    AFFIRMED
    This is an appeal from the trial court’s order terminating Appellant Raven Riley’s
    parental rights to her child, S.L.L. The Department of Family and Protective Services filed suit
    to terminate Riley’s parental rights to S.L.L. following a shooting that occurred in Riley’s
    apartment while S.L.L. was present. Following a non-jury trial, the trial court terminated Riley’s
    parental rights. Pursuant to section 236.405 of the Family Code, Riley timely filed a motion for
    new trial, a statement of appellate points, and an affidavit of indigence. See TEX. FAM. CODE
    ANN. § 263.405 (West 2008). In her statement of appellate points, Riley asserted that the
    evidence was factually insufficient to sustain a finding that termination is in the best interest of
    04-11-00115-CV
    S.L.L. After a hearing, the trial court denied Riley’s request for a new trial and found her points
    of appeal to be frivolous. We affirm the trial court’s order.
    FRIVOLOUS APPEAL
    A. Standards of Review
    1. Clear and Convincing Evidence
    A trial court may involuntarily terminate a parent–child relationship if it finds by clear
    and convincing evidence that: (1) the parent has committed at least one of the acts prohibited
    under section 161.001(1) of the Family Code; and (2) termination of the relationship is in the
    child’s best interest. TEX. FAM. CODE ANN. § 161.001 (West 2008); In re J.L., 
    163 S.W.3d 79
    ,
    84 (Tex. 2005). Although the two elements must be proven independently, “the same evidence
    may be probative of both issues.” In re C.H., 
    89 S.W.3d 17
    , 28 (Tex. 2002). Under the Family
    Code, clear and convincing evidence is “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); accord In re T.N.S., 
    230 S.W.3d 434
    , 438 (Tex. App—San Antonio 2007, no pet.).
    2. Review of Frivolousness Determination
    “[If a] trial court determines that an appeal is frivolous, the scope of appellate review is
    statutorily limited to a review of the trial court’s frivolousness finding.” In re K.D., 
    202 S.W.3d 860
    , 865 (Tex. App.—Fort Worth 2006, no pet.) (citing TEX. FAM. CODE ANN. § 263.405(g)
    (West 2008)). “In determining whether an appeal is frivolous, a judge may consider whether the
    appellant has presented a substantial question for appellate review.” TEX. CIV. PRAC. & REM.
    CODE ANN. § 13.003(b) (West 2002); see TEX. FAM. CODE ANN. § 263.405(d)(3) (West 2008).
    We review a trial court’s determination that an appeal would be frivolous for an abuse of
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    discretion. In re 
    K.D., 202 S.W.3d at 866
    . “A trial [court] abuses [its] discretion if [it] acts
    without reference to any guiding rules or principles,” or acts arbitrarily and unreasonably under
    the circumstances. See In re H.R., 
    87 S.W.3d 691
    , 702 (Tex. App.—San Antonio 2002, no pet.).
    Riley contends the trial court abused its discretion in finding her factual sufficiency appellate
    point as frivolous.
    3. Factual Sufficiency
    In reviewing factual sufficiency, we “must give due consideration to evidence that the
    factfinder could reasonably have found to be clear and convincing” and inquire “‘whether the
    evidence is such that a factfinder could reasonably form a firm belief or conviction about the
    truth of the State’s allegations.’” In re J.F.C., 
    96 S.W.3d 256
    , 266 (Tex. 2002) (quoting In re
    C.H., 89 s.W.3d 17, 25 (Tex. 2002)); accord In re B.T., 
    954 S.W.2d 44
    , 46 (Tex. App.—San
    Antonio 1997, writ denied). We “consider whether disputed evidence is such that a reasonable
    factfinder could not have resolved that disputed evidence in favor of its finding.” In re 
    J.F.C., 96 S.W.3d at 266
    . “[A] finding is sustained if there is sufficient competent evidence of probative
    force to support it.” In re 
    H.R., 87 S.W.3d at 699
    . The trial court found all of Riley’s points of
    appeal to be frivolous including the point at issue in this appeal that the evidence was factually
    insufficient to support a finding that termination was in S.L.L.’s best interest.
    B. S.L.L.’s Best Interest
    Riley argues that the evidence is factually insufficient to support a finding that
    termination is in S.L.L.’s best interest because the only expert testimony admitted at trial
    supported the contrary proposition. She does not contest the trial court’s finding that she
    knowingly placed or allowed S.L.L. to remain in conditions or surroundings that endangered
    S.L.L.’s well-being and engaged in conduct, or knowingly placed S.L.L. with persons who
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    04-11-00115-CV
    engaged in conduct that endangered S.L.L.’s well-being.               See TEX. FAM. CODE ANN.
    § 161.001(1)(D), (E) (West 2008).
    1. Applicable Law
    When considering the best interest of the child, the following non-exhaustive list of
    factors are considered:
    (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 [those] 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 parents.
    Holley v. Adams, 
    544 S.W.2d 367
    , 372 (Tex. 1976) (internal footnotes omitted); accord In re
    A.I.G., 
    135 S.W.3d 687
    , 692 (Tex. App.—San Antonio 2003, no pet.). “We need not decide
    each of these factors against a parent to find that termination is in the child’s best interest.” In re
    
    A.I.G., 135 S.W.3d at 692
    –93.
    2. Analysis
    The termination proceedings were instituted as a result of a shooting that occurred in
    Riley’s apartment. In April 2010, Riley had a male visitor at her apartment. S.L.L.’s father
    entered Riley’s apartment and began shooting the visitor. Riley fled the scene, leaving eight-
    month-old S.L.L. on the bed in the master bedroom. Riley stated that she left S.L.L. because she
    did not believe S.L.L.’s father would hurt her. However, S.L.L.’s father shot the victim three
    times, and the last shot was to the victim’s face and fired right next to the bed where Riley had
    left S.L.L. The incident prompted the Department to file its petition to terminate Riley’s parental
    rights to S.L.L. Riley characterizes the Department’s actions as unfair because the termination
    suit was originally based solely on S.L.L.’s father’s actions rather than any actions by Riley.
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    04-11-00115-CV
    However, the evidence presented at trial was not limited to this incident but also included
    evidence that Riley’s other children endured a similar pattern of exposure to abuse and domestic
    violence.
    Riley is the mother of three children other than S.L.L. Her parental rights to her first two
    children were terminated due to her knowing placement of those children in surroundings and
    with persons dangerous to their physical and emotional well-being. When Riley’s first child,
    X.I., was removed at approximately eight months of age, he had a skull fracture, two broken
    arms, a broken clavicle, bruises all over his body, and signs of forced feeding/cuts around his
    mouth. Riley pled guilty and was convicted of the felony offense of injury to a child with
    serious bodily injury, and was sentenced to ten years’ community supervision. Importantly, as
    part of her probation, Riley is not permitted to have unsupervised contact with any child.
    Although Riley’s third child, J.I., was removed from Riley, her parental rights to J.I. were
    not terminated. The State appointed a therapist, Judy Dickey, to work with Riley. Despite
    working with Dickey for eight months, Riley testified that she believes it is best that J.I. continue
    to live in foster care.
    A Department caseworker, Sabrina Bedford, testified that based on her evaluation of
    Riley, termination was in S.L.L.’s best interest. Bedford testified that Riley was not granted a
    service plan in the instant case because of her previous violations of the Family Code subsections
    161.001(1)(D) and (E) and the “aggravated circumstances” leading to S.L.L.’s removal. See
    TEX. FAM. CODE ANN. § 161.001(1) (West 2008). Bedford testified that the services provided to
    Riley, aimed at correcting the reasons for the removal of her other children, proved unsuccessful
    because there continued to be similar occurrences with S.L.L. Bradford noted there had been
    multiple domestic violence situations with S.L.L.’s father including the father’s display of a gun
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    04-11-00115-CV
    in front of Riley. Bedford testified that the shooting incident fit the same domestic violence
    pattern that had occurred in Riley’s previous Department cases.
    Bedford also testified that S.L.L. has a permanent medical condition called
    hydrocephalus, requiring serious medical attention for the rest of her life and for which S.L.L.
    has already had one surgery.      In Bedford’s opinion, based on Riley’s previous cases, the
    unsuccessful attempts at service plans, the instability of the home, Riley’s history of domestic
    violence, and the serious medical needs of S.L.L., termination was in S.L.L.’s best interest.
    Riley argues that the testimony of her therapist, Judy Dickey, establishes that termination
    was not in the best interest of S.L.L., and that a substantial question for appellate review was
    presented on the sufficiency of the evidence. Dickey initially testified that she believed it was
    not in S.L.L.’s best interest to terminate the parent–child relationship. Dickey testified that she
    had only observed Riley with S.L.L. on one visit that lasted two hours. Dickey believed that
    with more time and therapy Riley would be able to parent S.L.L. She also testified that “in-home
    services would be very helpful” to Riley. However, at trial Dickey admitted she did not know
    that Riley had been previously provided in-home services that had proved unsuccessful. More
    importantly, Riley had not shared with Dickey the extent of the injuries to X.I. Rather, Riley had
    explained to Dickey that X.I. had suffered a broken arm as a result of an accident. Dickey was
    neither aware of X.I.’s multiple broken bones and skull fracture, nor did she know that his body
    was covered in bruises at the time he was removed. After learning the additional information
    about Riley and her children, Dickey stated that, in terms of her evaluation assessment of
    reunification with S.L.L., the new information “cause[d] [her] pause.”
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    04-11-00115-CV
    CONCLUSION
    From the evidence presented at trial, we conclude that the trial court did not abuse its
    discretion in determining that Riley’s factual sufficiency challenge did not present a substantial
    question for appellate review and was, therefore, frivolous. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 13.003(b). Accordingly, we affirm the trial court’s order terminating Riley’s parental
    rights to S.L.L.
    Rebecca Simmons, Justice
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