in the Interest of A.S., J.S., A.S., and D.S., Children ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00281-CV
IN THE INTEREST OF A.S., J.S., A.S., AND D.S., CHILDREN
From the County Court at Law
Bosque County, Texas
Trial Court No. CV15247
MEMORANDUM OPINION
Candice and Daniel S. appeal separately from a judgment that terminated their
parental rights to their children, A.S., J.S., A.S., and D.S. TEX. FAM. CODE ANN. §
161.001(b)(1) (West 2014). Candice complains that the evidence was factually insufficient
for the jury to have found that termination was in the best interest of the children. Daniel
complains that the evidence was legally and factually insufficient for the jury to have
found the predicate grounds for termination and that termination was in the children's
best interest. Because we find that Candice did not preserve her complaint by filing a
motion for new trial, we overrule her sole issue and affirm the judgment as it relates to
Candice. Because we find that the evidence was legally and factually sufficient for the
jury to have found that Daniel failed to complete his service plan and that termination
was in the best interest of the children, we affirm the judgment relating to Daniel.
CANDICE
In her sole issue, Candice complains that the evidence was factually insufficient
for the jury to have found that termination of the parent-child relationship was in the
children's best interest. However, Candice did not file a motion for new trial. In order to
complain on appeal, a party must file a motion for new trial to preserve a factual
sufficiency challenge. TEX. R. CIV. P. 324(b)(2); In re A.M., 385 S.W.3d 74, 79 (Tex. App.—
Waco 2012, pet. denied). We conclude that Candice failed to preserve the factual
sufficiency complaint made in her sole issue. In re A.M., 385 S.W.3d at 79. Accordingly,
we overrule Candice's sole issue.
DANIEL
PREDICATE GROUNDS
In his first issue, Daniel complains that the evidence was legally and factually
insufficient for the jury to have found that he (1) voluntarily left the children in the
possession of another without providing adequate support of the children and remained
away for a period of at least six months; (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; (3) had been convicted or placed on community
supervision for being criminally responsible for the death or serious injury of a child; (4)
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constructively abandoned the children; and (5) 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 children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(C), (E), (L), (N), & (O).
Only one statutory predicate ground is necessary to support termination of parental
rights when there is a finding of best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex.
2003) ("Only one predicate finding under section 161.001(b)(1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child's best
interest.").
Termination decisions must be supported by clear and convincing evidence. TEX.
FAM. CODE ANN. §§ 161.001(b), 161.206(a). 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." TEX. FAM. CODE ANN. § 101.007.
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, and resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so. Id. We disregard all contrary evidence that a reasonable
factfinder could have disbelieved. Id. We consider undisputed evidence even if it is
contrary to the finding. Id. In other words, we consider evidence favorable to termination
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if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. Id. We do not weigh credibility issues that depend on the
appearance and demeanor of the witnesses, for that is solely the province of the
factfinder. Id. at 573-74. Even when credibility issues appear in the record, we defer to
the factfinder's determinations as long as they are reasonable. Id. at 573.
In reviewing the factual sufficiency of the evidence, we give due deference to the
factfinder's findings and do not supplant the factfinder's 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 parent committed
the predicate ground alleged and that the termination of the parent-child relationship
would be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1); see 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 in the truth of its finding,
then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.
Section 161.001(b)(2)(O) of the Family Code provides that parental rights may be
terminated if a parent "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
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the child's removal from the parent under Chapter 262 for the abuse or neglect of the
child." TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Daniel argues that he substantially
complied with the service plan and because of this, the evidence was insufficient to
terminate his parental rights on this basis.
This Court has long held that we do not consider "substantial compliance" to be
the same as completion for purposes of subsection (O) of the Family Code, nor does that
subsection provide for excuses for failure to complete court ordered services. See In re
T.N.F., 205 S.W.3d 625, 630-31 (Tex. App.—Waco 2006, pet. denied) (emphasizing that
parents must comply with every requirement of the court order and that subsection (O)
does not allow for consideration of excuses for noncompliance).
The evidence is undisputed that Daniel did not complete every requirement of the
service plan. He was ordered to complete a psychological evaluation, which he did later
in the proceedings, and was to follow its recommendations which included a requirement
to attend a behavioral intervention program, which he did not do. Daniel was ordered
to participate in therapy and follow all recommendations, but his attendance was
extremely sporadic, with him missing scheduled sessions. Daniel was required to
maintain housing and employment during the case, but failed to do both. However, he
and Candice were living in a residence at the time of trial and he had been working at a
job for a few months. Daniel had only provided one paystub to the Department during
the entire case showing that he made $300. He had four jobs and he and Candice had
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multiple residences throughout the proceedings. Daniel and Candice were even
homeless at one point after having to leave his family's residence. After reviewing the
evidence under the appropriate standards, we determine the evidence to be legally and
factually sufficient to prove that Daniel failed to complete his court-ordered service plan.
Accordingly, termination of his parental rights was proper pursuant to section
161.001(1)(O).
Because it is only necessary that we determine the evidence was legally and
factually sufficient as to one predicate ground under section 161.001(b)(1), we will not
address the sufficiency of the evidence relating to sections 161.001(1)(C), (E), (L), or (N).
Issue one is overruled.
BEST INTEREST
In his second issue, Daniel complains that the evidence was legally and factually
insufficient for the jury to have found that termination was in the children's best interest.
There are several nonexclusive factors that the trier of fact in a termination case may
consider in determining the best interest of the child, which 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, (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)
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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. In
re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Some listed factors may be inapplicable to some
cases while other factors not on the list may also be considered when appropriate. Id.
The children were removed from their parents after Daniel slapped J.S. so hard
that it left a substantial bruise on his face and neck. Daniel ultimately pled guilty to injury
to a child for this offense and was placed on community supervision. Their home was
also found to be very unsanitary at the time of the removal. The children were initially
placed with Daniel's father, but that placement ended when Daniel's father was unable
to meet the children's needs. The children all had special needs. The children were placed
in a children's home in Lubbock where A.S., A.S., and D.S. showed improvement during
the pendency of the proceeding. J.S. continued to have behavioral problems which
resulted in his placement at a residential treatment facility a couple of months before the
jury trial, and this placement would only continue after the trial if the Department was
the managing conservator of the children or if Daniel and Candice paid for it directly.
There was a substantial history of domestic violence, both physical and sexual,
between Daniel and Candice, and Daniel admitted to raping Candice. Candice told the
caseworker she was fearful of Daniel, but Candice reconciled with Daniel after he was
released from jail because he apologized to her, which she said he had never done before.
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The children exhibited significant anger and fear toward their father, and told their
therapist that both Candice and Daniel would hit all of them regularly. A.S. and J.S. were
only slightly bonded to Daniel. The children exhibited emotional distress at their
placement due to the trauma they had previously suffered, and made multiple outcries
of abuse against their parents. Although at times the children were jealous of other
children at the home who visited with their parents, their therapist did not recommend
that Daniel have contact with the children. A.S., J.S., and A.S. were all in therapy and
therapy would continue if the Department remained the children's conservator. D.S. was
too young at the time of trial for counseling to be of benefit to him, but it would also be
available to him in the future if needed.
Daniel had four different jobs during the pendency of the case, and he and Candice
had moved multiple times and were at times homeless. Daniel and Candice testified that
at the time of the trial they had established a residence and Daniel had a job for several
months that he intended to keep. Candice and Daniel had prior CPS involvement from
Georgia for failing to maintain suitable housing for the children when they resided there.
Candice was suffering from severe depression, which Daniel believed would be
fully resolved if the children were returned; however, Candice had been suffering from
depression prior to the removal and Candice and Daniel claimed that it was a cause of
her inability to maintain the residence in a satisfactory condition.
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Daniel did not complete therapy, the behavioral intervention program, pay any
child support, or visit with the children during the pendency of the proceedings. Daniel
blamed these failures on a lack of transportation, the Department's refusal to work with
him, and his work schedule.
Using the appropriate standards for reviewing the legal and factual sufficiency of
the evidence, we find that the evidence was both legally and factually sufficient for the
jury to have found that termination of Daniel's parental rights was in the best interest of
the children. We overrule Daniel's second issue.
CONCLUSION
Having found no reversible error, we affirm the judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 19, 2017
[CV06]
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