in the Interest of E. R., a Child ( 2014 )

NO. 12-14-00171-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE INTEREST OF E. R.,
§ COUNTY COURT AT LAW
A CHILD
§ CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
R.S. appeals the termination of her parental rights. In six issues, she challenges the order
of termination. We affirm.
BACKGROUND
R.S. is the mother of E.R., born November 23, 2006. R.R. is the father of E.R. and is not
a party to this appeal. On May 1, 2013, the Department of Family and Protective Services (the
Department) filed an original petition for protection of the child, for conservatorship, and for
termination of R.S.’s parental rights. The Department was appointed temporary managing
conservator of the child, and R.S. was appointed temporary possessory conservator with limited
rights and duties.
At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that R.S. had engaged in one or more of the acts or omissions necessary to support
termination of her parental rights under subsections (D), (E), and (O) of Texas Family Code
Section 161.001(1). The trial court also found that termination of the parent-child relationship
between R.S. and E.R. was in the child’s best interest. Based on these findings, the trial court
ordered that the parent-child relationship between R.S. and E.R. be terminated. This appeal
followed.
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action ―permanently sunders‖ the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re J.M.T., 39
S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any
one of the acts or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN.
§ 161.001(1) (West 2014); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d
213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second,
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West
2014); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not alleviate the petitioner’s burden of
proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39
S.W.3d at 237.
The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means ―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 2014). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
STANDARD OF REVIEW
When confronted with both a legal and a factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm
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belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).
TERMINATION UNDER SECTION 161.001(1)(E)
In her third and fourth issues, R.S. argues that the evidence is legally and factually
insufficient to support a finding that she engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangered the child’s physical or emotional well being.
Applicable Law
The court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangers the physical or emotional well being of the
child. TEX. FAM. CODE ANN. § 161.001(1)(E) (West 2014). The specific danger to the child’s
well being need not be established as an independent proposition, but may instead be inferred
from parental misconduct. Tex. Dep’t of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987); In re J.J., 911 S.W.2d at 440. Scienter is not required for an appellant’s own acts under
Section 161.001(1)(E), although it is required when a parent places her child with others who
engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.]
2003, pet. denied). Finally, the need for permanence is a paramount consideration for the child’s
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present and future physical and emotional needs. In re N.K., 99 S.W.3d 295, 301 n.9 (Tex.
App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200.
―Endanger‖ means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533;
In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.). It is not necessary that
the conduct be directed at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at
533; In re J.J., 911 S.W.2d at 440. Subsection (E) requires us to look at the parent’s conduct
alone, including actions, omissions, or the parent’s failure to act. In re D.J., 100 S.W.3d 658,
662 (Tex. App.—Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811. Termination under
subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d at
812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). A voluntary,
deliberate, and conscious ―course of conduct‖ by the parent that endangers the child’s physical
and emotional well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at
634.
A parent’s use of narcotics and its effect on her ability to parent may qualify as an
endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re
R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Further, a parent’s
illegal drug use can support termination for endangerment because it exposes the child to the
possibility that the parent may be impaired or imprisoned. Melton v. Tex. Dep’t of Family &
Protective Svcs., No. 03-08-00168-CV, 2010 WL 668917, at *5 (Tex. App.—Austin Feb. 25,
2010, no pet.) (mem. op.). A parent’s repeated engagement in illegal drug activity or repeatedly
associating with known criminals after agreeing not to do so in a service plan for reunification
with her child may be considered in an analysis of whether clear and convincing proof exists of
voluntary, deliberate, and conscious conduct that endangered the well being of her child. See In
re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.).
As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well being of a child. In re M.R.J.M., 280 S.W.3d 494,
503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d at 739. Evidence of
criminal conduct, convictions, and imprisonment and its effect on a parent’s life and ability to
parent may establish an endangering course of conduct. In re S.M., 389 S.W.3d 483,492 (Tex.
App.–El Paso 2012, no pet.). Imprisonment alone does not constitute an endangering course of
conduct, but it is a fact properly considered on the endangerment issue. Id. (citing Boyd, 727
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S.W.2d at 533-34). Conduct that routinely subjects children to the probability that they will be
left alone because the parent is once again jailed, whether because of the continued violation of
supervisory conditions or because of a new offense growing out of a continued use of illegal
drugs, endangers both the physical and emotional well being of the children. See In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).
The Evidence
The initial investigation by the Department began on April 16, 2013, when the police
received reports of a prowler next door to R.S.’s residence. Troy Ansley, a sergeant with the
Alto Police Department, testified that he discovered R.S. and her paramour, H.W., sitting on the
front porch of her residence. He stated that there was an open beer container and a cup that
smelled of a fruit flavored alcohol on the porch. Ansley also noticed that H.W. was a minor and
exhibited signs of intoxication—bloodshot eyes, slurred speech, and an extremely scattered
thought process.
It was apparent that R.S. was having a party, and Ansley discovered that, with one
exception, the individuals attending the party were between thirteen to twenty years old. Most of
them were holding alcoholic beverages, and all of them had been consuming alcohol. R.S.
explained that she did not expect minors to show up, but still allowed them to drink in her home.
She said that she was trying to be a ―cool mom.‖ Ansley described the house as being ―in
disarray‖ and ―extremely smoky,‖ ―like a fog‖ that filled up the entire kitchen and living room
area. Numerous containers of alcohol, including beer and hard liquor, were on the kitchen
counters. One of the minors, E.R.’s babysitter, told him that E.R. was sleeping in the back room.
The babysitter brought E.R. into the living room where Ansley noted that she was congested and
not breathing very well.
Aaron Warren, a Department investigator, testified that he went to R.S.’s house the day
after the party. Neither R.S. nor E.R. was there. He eventually located E.R. at her maternal
grandmother’s house, and she appeared to be sick. The maternal grandmother had taken the
child to the emergency room. Warren testified that about fifteen or twenty minutes after he began
talking to E.R.’s maternal grandmother, R.S. and H.W. came ―flying‖ in the door. R.S. and
H.W. became belligerent and very upset after Warren introduced himself. R.S. refused to
cooperate and would not allow him to go to her house as part of his investigation.
5
After a hearing, E.R. was removed from R.S.’s home and was eventually placed in foster
care. Christina Autry, a Department caseworker, testified that she was assigned to R.S.’s case on
April 30, 2013. R.S. tested positive for methamphetamines through a hair follicle test after a
hearing at the beginning of the case, but had approximately ten negative drug tests after that
time. R.S. did not attend any Narcotics Anonymous or Alcoholics Anonymous meetings after
August 2013 and did not complete her assessment with the East Texas Counsel on Alcoholism
and Drug Abuse (ETCADA). However, she successfully completed an intensive outpatient drug
treatment program. R.S. admitted having a drug problem and using drugs for about two months
before the hearing, but said she had abstained from drugs since that date. According to Warren,
E.R. stated that her mother, her minor brother, and her mother’s paramour, H.W., smoked
marijuana all the time and that R.S. smoked another ―funny smelling‖ thing. R.S. denied
smoking marijuana with H.W. and her older son at one point, and then admitted smoking
marijuana with her older son and smoking methamphetamine with H.W. Autry noted that R.S.
had not submitted to drug testing since February 19, 2014, because she was jailed in March
2014.
R.S. completed a parenting class and consistently attended visitations with E.R.
However, she did not obtain and maintain a stable home and income. She had three jobs during
the course of the case, had poor attendance, and was fired from two of those jobs. R.S. found it
difficult to maintain a job along with the meetings and visitations required by her family service
plan even though she was diligent about finding work. She had lived in six different places since
April 2013, including with friends and in an apartment from which she was evicted. Eviction
proceedings were commenced against R.S. in February 2014, regarding her current apartment,
and later, her belongings were confiscated from that apartment.
R.S. was requested not to associate with known criminals as part of her family service
plan and was ordered to have ―no contact‖ with H.W. pursuant to the temporary orders following
the adversary hearing and the family service plan. She was also told on ―numerous occasions‖
not to have contact with H.W. However, she did not comply.
On two occasions, Autry went to R.S.’s apartment on an unannounced visit. On the first
visit, R.S. was not present, but a man was in her apartment to ―protect‖ it from another man who
was supposed to pick up his clothes that were outside the apartment door. That man identified
himself through an offender’s card, and said he had recently been released from prison and was
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on parole for a ―home invasion.‖ A criminal check revealed that he had a lengthy criminal
history, including two burglaries of a habitation, theft of a firearm, numerous misdemeanor
thefts, forgery of a financial instrument, assault, aggravated assault with a deadly weapon,
assault causing bodily injury to a family member, and prohibited weapons. He was currently on
parole until 2020.
On the next unannounced visit, Autry discovered R.S. along with two other men in her
apartment. R.S. identified the first man as having a different surname than the one he gave
Autry. A criminal check on the correct surname revealed that he had several felony charges and
was currently serving ten years of community supervision. Autry also discovered a man hiding
in a bedroom closet. The man did not have any identification, but R.S. identified him as ―Billy.‖
After Autry was shown H.W.’s mugshot a few days later, she determined that ―Billy‖ was H.W.
H.W. had a lengthy criminal history including an arrest for sexual assault, arrests for
numerous drug charges, arrests for other minor charges, and pending criminal charges. R.S.
admitted that H.W. was hiding in the closet because she knew he was not supposed to be in her
apartment. She knew E.R. would not be in any danger from H.W. because he ―explained‖ the
circumstances behind his arrest for sexual assault. But she also claimed not to have known about
the circumstances of the sexual assault incident until after E.R. was removed from her home.
R.S. and H.W. were arrested together for possession of a controlled substance, a third degree
felony, on March 11, 2014.
When asked why she could not stay away from H.W. if that was the one thing standing in
the way of getting E.R. back, R.S. stated that they were ―friends.‖ She admitted that she and
H.W. had a sexual relationship until they were both jailed in March 2014. R.S. conceded that it
looked like she was choosing H.W. over her child. However, she stated that she would stay
away from all of the people who could injure E.R. or be a bad influence on her.
Larry Wilburn, a licensed professional counselor, testified that he treated R.S. twice a
month from June 28, 2013, through February 2014. He explained that R.S. was unable to
successfully complete counseling because she did not meet the treatment goals. Her treatment
goals included setting boundaries so that she would not be around at-risk people who could put
her child at risk, to stay clean, to provide a safe and financially stable environment, and to
participate in services. He stated that R.S. recognized that she had a drug problem, that drug use
was not appropriate around children, and that the alcohol use in her home was inappropriate.
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Even though R.S. stayed clean, held a job, and participated in services, she had ongoing
problems with being around at-risk people and not complying with the rules. Wilburn stated that
R.S. did not demonstrate changes in her judgment, decision making, complying with the rules,
and being around positive people. For instance, he said, R.S. bought a necklace for her older son
that had a marijuana leaf on it. Wilburn was concerned because of R.S.’s history of substance
abuse and her judgment in buying the gift.
Wilburn was also concerned because he had information that R.S. continued to be around
persons who used drugs and participated in criminal activities and, therefore, continued to be ―a
risk.‖ He discharged R.S. in February 2014 due to a lack of progress and her subsequent
confinement in jail. He did not believe that R.S. could provide permanency and stability for E.R.
at the time of trial. Wilburn testified that R.S. was at a ―medium to high risk‖ to children based
on her pattern of behavior as of February 2014. R.S. believed she had the ability to provide a
safe, nurturing environment for E.R. once she was released from jail. Autry and the CASA
volunteer recommended that R.S.’s parental rights to E.R. be terminated.
Conclusion
Viewing the evidence in the light most favorable to the finding, the trial court could have
determined that R.S. allowed minors to drink alcohol in her house, had a drug problem, tested
positive for methamphetamine at the beginning of the case, smoked marijuana with her older
son, and smoked methamphetamine with her paramour, H.W. She also admitted that she was
currently in jail after being charged with possession of a controlled substance, a third degree
felony. Therefore, the trial court also could have found that R.S.’s actions exposed E.R. to the
possibility that R.S. may be impaired or imprisoned. See Melton, 2010 WL 668917, at *5.
R.S. continued to have a relationship with H.W., a known criminal who had been charged
with sexual assault, even though she was ordered to have ―no contact‖ with him. She failed to
acknowledge that E.R. could be in danger from H.W. because he ―explained‖ the circumstances
behind his sexual assault arrest. H.W. was also arrested, along with R.S., for possession of a
controlled substance, which indicated that their relationship was ongoing. R.S. continued to
associate with other persons who participated in criminal activities, allowing them into her
house. She had a continuing problem with being around at-risk persons, demonstrating a lack of
judgment and a failure to comply with the rules. Because R.S. decided to continue a relationship
with H.W. and associate with other known criminals during the pendency of this case and after
8
being ordered not to do so by the trial court and family service plan, the trial court could have
considered R.S.’s decisions in its finding that she engaged in conduct that endangered the child’s
physical or emotional well being. See In re T.N., 180 S.W.3d at 383.
The evidence also demonstrated that R.S.’s home life was unstable because she was
unable to keep a steady home or job. She lived in at least six different places during the
pendency of the case and was evicted from at least two apartments. R.S. was also in jail at the
time of trial. The trial court could have found that R.S.’s unstable home life and possible
incarceration subjected E.R. to a life of uncertainty and instability that endangered her physical
and emotional well being. See In re M.R.J.M., 280 S.W.3d at 503; In re R.W., 129 S.W.3d at
739.
R.S. stated that she believed she had the ability to provide a safe, nurturing environment
for E.R. once she was released from jail. She also had at least ten negative drug tests during the
pendency of the case. The evidence showed that R.S. tried to find work, and consistently
attended visitations with E.R. Although this evidence conflicts with the trial court’s findings, it
is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor
of its finding and formed a firm belief or conviction that R.S. engaged in conduct, or knowingly
placed the child with persons who engaged in conduct, that endangered her physical or emotional
well being. Therefore, we hold that the evidence is legally and factually sufficient to support
termination of R.S.’s parental rights under Section 161.001(1)(E). Accordingly, we overrule
R.S.’s third and fourth issues.
HEARSAY
In her sixth issue, R.S. argues that the trial court erred by admitting the hearsay statement
of the child without conducting a hearing pursuant to Section 104.006 of the Texas Family Code,
and that error was harmful.
A statement made by a child younger than twelve years that describes alleged abuse
against the child is admissible as evidence if, in a hearing conducted outside the presence of the
jury, the court finds that the time, content, and circumstances of the statement provide sufficient
indications of the statement’s reliability and the child testifies or is available to testify or the
court determines that the use of the statement in lieu of the child’s testimony is necessary to
protect the child’s welfare. See TEX. FAM. CODE ANN. 104.006 (West 2014). In other words, the
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statute sets forth the requirements for the trial court to determine whether a child’s statement is
admissible through another witness in certain circumstances. See In re L.M., No. 10-11-00276-
CV, 2012 WL 1123898, at *2 (Tex. App.—Waco Apr. 4, 2012, pet. dism’d w.o.j.) (mem. op.).
At issue is an outcry statement that E.R. made. Investigator Warren testified that E.R. said her
mother, H.W., and R.S.’s older son smoked marijuana all the time and that her mother smoked
another ―funny smelling‖ thing.
R.S. admits in her brief that, at trial, her counsel did not object to the mention of the
alleged outcry statement. Although she states that her lack of an objection ―does not relieve the
trial court of the mandatory requirement for a reliability hearing,‖ she does not cite any authority
to support her position. Further, the record does not reflect that the trial court was ever requested
to conduct a hearing pursuant to Section 104.006.
As a predicate to presenting a complaint on appeal, the complaining party must have
preserved the error at trial by a proper request, objection, or motion stating the grounds for the
ruling that the party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, and then securing a ruling on the request, objection, or motion. See TEX.
R. APP. P. 33.1(a)(1)(A), (2). Thus, in order to preserve this complaint for appeal, R.S. was
required to present her request to the trial court and to obtain a ruling on that request. See In re
L.M., 2012 WL 1123898, at *2. She did not do so and, therefore, has waived this issue on
appeal. Accordingly, we overrule R.S.’s sixth issue.
DISPOSITION
Having overruled R.S.’s third, fourth, and sixth issues, we affirm the judgment of the
trial court.1
JAMES T. WORTHEN
Chief Justice
Opinion delivered December 10, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
1
Because we have concluded that the evidence is legally and factually sufficient to support termination of
R.S.’s parental rights under subsection (1)(E), we need not address R.S.’s first, second, and fifth issues regarding
subsections (1)(D) and (1)(O). See TEX. FAM. CODE ANN. § 161.001(1); TEX. R. APP. P. 47.1.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 10, 2014
NO. 12-14-00171-CV
IN THE INTEREST OF E. R., A CHILD
Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. 2013-05-0334)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.