in the Interest of E.A.G ( 2002 )

Affirmed and Opinion filed November 14, 2002

Affirmed and Opinion filed November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01046-CV

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IN THE INTEREST OF E.A.G.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 00-07461J

O P I N I O N

            Appellant, Ilene G., challenges the termination of her parental rights.^[1]  The Texas Department of Protective and Regulatory Services filed an original petition to terminate the parent-child relationship between Ilene G. and Felix G. and their minor child, E.A.G.  Appellant argues there was legally insufficient evidence or, in the alternative, factually insufficient evidence to support the trial court’s findings that (1) she engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the

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physical and emotional well-being of the child; and (2) the termination of the parent-child relationship was in the best interest of the child.  We affirm.

I.  Factual Background

            Prompting the Department’s involvement in the case was an October 2000 incident of domestic violence between appellant and Felix G.  During the physical altercation, Felix G. knocked appellant to the ground, causing her to land on E.A.G. and bruise him on both his lip and his leg.  Appellant called the police and ultimately took the child to the hospital.  It was at this point that the child came into the Department’s care.

            Soon thereafter, the Department presented appellant and Felix G. with a Family Service Plan outlining various tasks to be completed to secure reunification with E.A.G.  Among other matters, the plan required that appellant (1) complete a drug assessment; (2) undergo psychological counseling; (3) attend anger management classes; and (4) attend group counseling sessions for victims of domestic violence.  The plan also required that she either pursue employment opportunities or obtain her high school graduation equivalency degree.

            Appellant signed the plan and indicated her willingness to abide by its terms.  She stated that she understood that successful completion of the plan was a prerequisite to reunification.  At the outset, the Department’s caseworker, Phillip Furgason, explained to appellant that a failure to complete the plan might result in the institution of termination proceedings.  Furgason testified that he warned appellant of this consequence at least four or five times since May of 2001.  According to Furgason, appellant indicated that she understood on each occasion.

            Although appellant showed some initiative to comply with the plan in the beginning, she ultimately succumbed to a lack of diligence in meeting the plan’s requirements.  While she did complete the psychological component, the drug assessment, and the parenting requirement, she failed to complete the required counseling because she was terminated from the group.  Appellant testified that she was terminated for being late to only a few sessions. However, Furgason contradicted her, testifying that he received reports that she missed multiple—certainly more than a few—sessions outright.  She did admit during her testimony that she had been terminated twice for non-attendance at therapy sessions.  As of the date of trial, appellant had not attended any anger management classes or family counseling with Felix G.

            Appellant also failed to meet the plan’s employment requirement.  As of trial, appellant had not found a job or enrolled in a GED course.  She admitted that it would be in the best interest of the child to be placed with someone who could provide for his needs, but that she could not do so at the time.  Although she stated that she kept track of her work history, she could not recount some very basic details about previous jobs she claims to have held.  She testified she was trying to find a job but that she had never followed up with the career agency assigned to her by the Department.

            Also of concern to the Department was appellant’s precarious living arrangement. Appellant admitted that she moved quite frequently, living in five different residences in the span of a single year.  She was evicted from one apartment due to the landlord’s concerns about frequent visits by the police.  Appellant claimed at trial that the police were looking for her runaway sister.  She testified she was currently on the waiting list for an apartment, but that the wait might be upwards from six months to a year.  At the time of trial, appellant lived with her aunt, and at any given time, as many as six other individuals were living there as well.  Though she denied having lived in an automobile, the Child Advocate, Ivana Shumberg, testified that Felix G. had told her they had indeed lived in a vehicle.

            Throughout the termination proceeding, appellant expressed uncertainty about her abilities both as a parent and as a provider of a stable environment.  She contended that she could have completed the requirements in a year but did not do so because she wasn’t “stable” at the time.  She remarked that she was “still not stable” but could be if the Department would extend its deadlines and simply allow her more time.  When asked how she would handle the possible return of her child, she replied that she “[couldn’t] talk for future.” She added that she simply didn’t know how she would be able to provide for the child at the present time.  Knowing that the possibility of termination loomed, appellant failed to complete all of these very basic requirements.

            Though the Department initially recommended reunification, it ultimately decided to pursue termination against both appellant and Felix G.  On cross-examination, Furgason testified that he did not believe reunification was possible. After a bench trial, the trial court found appellant had engaged in endangering conduct and that the termination of appellant’s parental right’s was in the best interest of the child.

II.  Standard of Review

            Appellant challenges both the legal and factual sufficiency of the trial court’s findings that her conduct endangered the well-being of the child and that termination was in the best interest of the child.  We remain mindful that parental rights are precious and constitutionally protected.  The parental right to the companionship, care, custody and management of children is protected to the degree that they are of federal constitutional dimensions.  See Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied).  To terminate appellant’s parental rights, the Department must first prove that she committed one of the acts or omissions prohibited by the Family Code.  Tex. Fam. Code. Ann. § 161.001(1) (Vernon 1996 & Supp. 2002). Second, the termination of parental rights must be in the best interest of the child.  Id. § 161.001(2).  Both elements must be established, and proof of only one of the two elements does not relieve the Department of the burden of proving the other.  See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).  Furthermore, the Department must prove the two elements with clear and convincing evidence.  § 161.001 (Vernon 1996 & Supp.2002); see Santosky, 455 U.S. at 768–770 (requiring clear and convincing evidence standard in termination cases); In re G.M., 596 S.W.2d 846, 846–47 (Tex. 1980) (same).

            With respect to the proscribed acts and omissions, the Department alleges that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child.  Id. § 161.001(2).  As required, the Department also asserts that the best interest of the child would be served by termination of appellant’s parental rights.  The trial court found the Department met both elements by clear and convincing evidence.  Appellant challenges both the legal and factual sufficiency of the evidence on each of these required elements.^[2]

            We review the legal sufficiency of the evidence by considering all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor.  Horvatich v. Texas Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594, 596 (Tex. App.—Austin 2002, no pet. h.)  To prevail on a legal sufficiency complaint, the appealing parent must demonstrate there is no more than a scintilla of evidence supporting the finding.  In re R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied).

            Appellant also challenges the factually sufficiency of the trial court’s findings.  Our supreme court recently articulated the proper standard of review to apply to factual sufficiency challenges in appeals arising from termination proceedings.  See In re C.H., 45 Tex. Sup. Ct. J. 1000, 1005, 2001 WL 1903109 (July 3, 2002).  Confusion often reigned over many court decisions because of the conflict between the heightened burden of proof at trial and the traditional standard of review in factual sufficiency challenges applicable in preponderance cases.  Id. at *5–8.  In C.H., the supreme court resolved the issue by promulgating a revised standard for use in factual sufficiency challenges in termination cases.  Id. at *8.  Under the new rule, termination findings must be upheld against a factual sufficiency challenge if the evidence is such that the finder of fact could reasonably form a firm belief or conviction about the truth of the State’s allegations.  Id.  Thus, we review the trial court’s findings under this new standard of review.

III.  Discussion

            In reviewing the legal and factual sufficiency in this case, we first determine whether the Department proved by clear and convincing evidence that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. As used in the Texas Family Code, the term “endanger” means to expose to loss or injury or to jeopardize, and endangerment can occur through both the acts and omissions of the parent.  In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); Phillips v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 348, 354 (Tex. App.—Austin 2000, no pet.).  The questioned conduct need not be directed toward the child to endanger the child’s emotional well-being.  See Harris v. Herbers, 838 S.W.2d 938, 942 (Tex. App.—Houston [1st Dist.] 1992, no writ).  The child does not need to be physically injured for endangerment to occur.  Id.  Despite this, the parental misconduct must amount to more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. See Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  With this framework as our guide, we look to the particular allegations of endangering misconduct made by the Department against appellant.

            Appellant argues that the Department based its recommendation for termination on a singular act of domestic violence.  At trial, appellant maintained that though she and Felix G. had argued in the past they had not laid hands upon one another before October of 2000. She also claimed they had not violently confronted each other since that incident.  Felix G. also testified that he had never before struck appellant and that the October incident was the first fight in which violence erupted.^[3]

            Appellant’s and Felix G.’s testimony was called into question by two other witnesses.  Both Furgason and Shumberg remarked upon appellant’s tendency to misrepresent her history of family violence. Furgason met with appellant and Felix G. shortly after the Department became involved with the case.  At this meeting, which Furgason described as a “pretty light hearted” conversation, both appellant and Felix G. told him that they had fought often and that appellant usually instigated the violence.  Shumberg testified that appellant recounted the “many times” that Felix G. had beaten her.  According to Furgason, neither appellant nor Felix G. considered the fighting a very serious problem.  Furthermore, Furgason testified that at this initial conversation appellant did not seem remorseful or act as if the domestic abuse was something she should regret.  According to Shumberg, appellant didn’t understand the Department’s motivations because she believed such incidents to be commonplace in other households.  Shumberg also testified that she was concerned with appellant’s outlook on domestic violence.

            The trial court could have found that appellant and Felix G. misrepresented their general history of domestic violence and downplayed the specific incident which led to the intervention of the Department in the first place. According to Furgason’s testimony, appellant acknowledged at their first meeting that she had indeed fallen on the child after the physical altercation.  At this same initial interview, Furgason recalled that Felix G. recounted the event in the same manner. At trial, however, both appellant and Felix G. offered different versions of the night in question. Appellant said she didn’t know if she fell on E.A.G., and that “the brother said that the baby walked over there and I fell on top of him.”  When she fell, she testified, E.A.G. just “went there where [she] was at.”  When police officers arrived, she told them that she would take him to the hospital “if” it was true that she had fallen on him. Though E.A.G. was ultimately discovered to have been injured, appellant testified that she didn’t see any bruises and she didn’t believe that the child had been hurt.  Furgason testified that appellant’s apparent willingness to mitigate this incident caused him concern about her parental abilities.

            The Department contends E.A.G. was endangered by the history of domestic abuse between appellant and Felix G.  In advancing this argument, the Department invokes the law of torts by analogizing to the theory of bystander recovery through which plaintiffs who observe an accident involving a close relative may recover mental anguish damages.  See Boyles v. Kerr, 855 S.W.2d 593, 597–98 (Tex. 1993) (listing elements of a claim premised upon the bystander theory of recovery); see generally Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968) (promulgating the bystander recovery factors later adopted by the Texas Supreme Court).  The Department argues that if courts allow bystanders to recover mental anguish damages after witnessing shocking violence, then so too should courts infer that a child experiences emotional trauma after witnessing bouts of domestic violence between parents.         However, we need not resort to such an elasticized analogy to conclude that violence between parents threatens the emotional welfare of a child.  A wealth of Texas cases directly address the issue.  Finders of fact may consider alleged abuse of other relatives in considering whether a parent’s conduct endangers other children. See Spangler v. Texas Dep’t of Protective & Regulatory Servs., 962 S.W.2d 253, 260 (Tex. App.—Waco 1998, no pet.); In re B.R., 950 S.W.2d 113, 119 (Tex. App.—El Paso 1997, no writ); Director of Dallas County Child Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas  1992, no writ).  A parent’s abuse of a spouse can suffice to support termination of the abuser’s parental rights.  See Lucas v. Dep’t of Protective & Regulatory Servs., 949 S.W.2d 500, 503 (Tex. App.—Waco 1997, pet. denied); In re B.J.B., 546 S.W.2d 674, 676 (Tex. Civ. App.—Texarkana 1977, writ ref’d n.r.e.).  Thus, the trial court could consider the history of abuse between the mother and the father for purposes of subsection (E), even if the child was not always present.  See Spangler, 962 S.W.2d at 260; B.R., 950 S.W.2d at 119; but see Lane v. Jefferson County Child Welfare Unit, 564 S.W.2d 130, 132 (Tex. Civ. App.—Beaumont 1978, writ ref’d n.r.e.) (noting a child’s presence during the physical abuse of a parent or sibling is necessary to endanger the child’s physical or emotional well-being).  Similarly, violent acts directed towards one child can endanger other children not the direct victims of the physical abuse in question.  See Lucas, 949 S.W.2d at 503; Bowling, 833 S.W.2d at 733.  It is self evident that parents perpetrating violence towards certain members of the family threaten the emotional development and well-being of any child.

            Though appellant notes that the child was not present during previous arguments, we cannot condone a rule which would require actual physical violence against the child in question before endangerment may be ascertained.  We need not await the occurrence of a tragic event before taking action in a termination case.  Nor do we believe the Department needed to wait idly for a direct catastrophic injury before concluding that appellant posed a danger to her child.  Here, both parents admitted to an incident of domestic abuse during which E.A.G. was injured. Both parents sought to conceal their history of domestic abuse, and the trial court could consider that attempt to deceive as evidence of an unwillingness to take responsibility and ensure the child’s future safety.  The domestic violence, coupled with the refusal to be straightforward with the Department and the court regarding their history of abuse, is evidence of an environment that threatens the child’s physical and emotional well-being. Accordingly, we find appellant’s admitted history of domestic violence, her misleading statements designed to mitigate that history of violence, the injuries suffered by the child, and the continued threat of violence is sufficient evidence of endangering conduct

            There is more than a scintilla of evidence supporting the trial court’s conclusion that appellant’s conducted endangered the physical and emotional well-being of the child.  Similarly, the evidence is such that the fact finder could reasonably form a firm belief or conviction about the truth of the State’s allegations.

IV.  The Best Interest of the Child

            Having found that the Department established endangering conduct by clear and convincing evidence, we now address the best interest of the child.  Tex. Fam. Code Ann. § 161.001(2) (Vernon 1996).  The supreme court has promulgated the following non-exclusive list of factors that may be considered when determining the best interest of the child:

(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).  A fact finder is not required to consider all of the listed factors.  Leal v. Texas Dep’t of Protective & Regulatory Servs., 25 S.W.3d 315, 322 (Tex. App.—Austin 2000, no pet.).  Considering the emotional and physical danger to the child, appellant’s plan for the child, the stability of appellant’s home and lifestyle, and the appellant’s parental acts and omissions, we find the Department met its burden to establish by clear and convincing evidence that the termination of appellant’s parental rights was in the best interest of the child.

A.  Emotional and Physical Danger to the Child

            We begin by noting that the child’s best interest are served by being free of an environment of domestic violence.  The physical danger to E.A.G. is well evidenced by the parents’ history of domestic violence as well as the specific incident which brought about the Department’s involvement.  There was testimony that appellant herself often instigated the violence in the home. Evidence of appellant’s misconduct, alleged to endanger the child’s physical and emotional well-being, is also pertinent to and entwined in the issue of the child’s best interest.  B.J.B., 546 S.W.2d at 677.  The history of violence, coupled with appellant’s utter unwillingness to be forthcoming with the court, is to be considered in weighing the best interest of the child.  Indeed, appellant’s testimony is riddled with inaccuracies and misrepresentations.  She claimed that she could not recall on what charge Felix G. was incarcerated, though she did remember the exact number of days he served in jail.  When asked on cross examination if it concerned her that she had no idea why the father of her child was in jail, she simply replied, “What does that have to do with my baby?”  We find the foregoing to be persuasive evidence that the emotional and physical needs of the child now and in the future are served by the termination of appellant’s parental rights.

B.  The Plans for the Child by Appellant

            The Department was rightly concerned with the indefiniteness of appellant’s plan for the foreseeable future and her failure to provide a stable and safe environment in the past.  See Horvatich, 78 S.W.3d at 601.  The trial court could also consider the mother’s lack of steady employment in determining whether she had an emotional weakness or instability.  See D.F. v. State, 525 S.W.2d 933, 940 (Tex. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.).  When asked about her failure to obtain gainful employment, appellant simply replied that no one was willing to hire her because she did not have an adequate education.  Appellant admitted that she was not working as of trial.  Though required to do so by the plan, she refused to go to the recommended career agency.  In fact, though required by the plan to obtain either employment or her GED, appellant did not meet either requirement.  She offered transparent excuses for her lack of diligence, noting only that the agency was supposed to call her back to inform her of its address but never did so.  Appellant testified that she did not take the time to call the career agency again, nor did she make further inquiries to locate the office.

            We do not find this to be a case where economic status is invoked to justify termination.^[4]  Rather, we are confronted with a mother whose unemployment is prompted by a complete lack of motivation to further the goals of the reunification plan.  Appellant’s refusal to pursue employment opportunities with any diligence is evidence to be considered in her ability to meet the requirements of the plan.  Thus, the trial court could have considered the evidence of appellant’s plans for the child, or lack thereof, in finding that the termination was in the best interest of the child.

C.  The Stability of the Home

            Appellant admitted at trial that her living arrangements did not provide a stable environment for E.A.G.  She lived in five different locations in the span of a single year.  At the time of trial, appellant lived with her aunt and six other individuals.  When asked during her testimony, appellant could not even remember her own address. She also offered misleading testimony about her past living arrangements.  She denied living in an automobile, though Shumberg later contradicted this testimony.  The need for permanence

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is the paramount consideration for a child’s present and future physical and emotional needs.  See Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995, no writ); see also In re Brianna D., 798 A.2d 413, 415 (R.I. 2002) (“[T]he child’s interest in a permanent and stable environment in which to grow is of paramount importance.”).  Indeed, the goal of establishing a stable, permanent home for a child is a compelling interest of the government.  Hann v. Texas Dep’t. of Protective and Regulatory Servs., 969 S.W.2d 77, 83 (Tex. App.—El Paso 1998, pet. denied).  Throughout her testimony, appellant admitted she was not yet able to provide a stable environment for her child and that she did not know when she would be able to do so.  She consistently stated that she was not yet ready for the child to be returned to her. While parental rights are of constitutional magnitude, they are not absolute.  C.H., 2001 WL 1903109, at *9. 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.  Id.  We believe that there is clear and convincing evidence that appellant’s home remained unstable and that the child’s best interest would be served by a more stable environment.

D.  Appellant’s Omissions as a Parent

            There is no indication that the situation existing at the time the child was removed from custody had been alleviated or that appellant was interested in making the permanent changes necessary for her child to be returned. Evidence of the parent’s past behavior is indicative of the quality of future care that parent is capable of providing.  Appellant was remiss in failing to attend counseling sessions during the improvement period granted, and no adequate excuse for failing to attend was advanced. Cf. In re P.S., 766 S.W.2d 833, 840 (Tex. App.—Houston [1st Dist.] 1989, no writ) (noting that parent’s failure to achieve level of conduct specified in the parent-agency agreement standing alone did not justify termination); In re M.H., 745 S.W.2d 424, 428 (Tex. App.—Houston [14th Dist.] 1988, no writ) (noting that appellant consistently missed follow-up sessions with children as well as therapy and her own counseling sessions).  She had a year to comply with the provisions of the plan and was consistently warned that a failure to comply might result in termination. The threat of that drastic remedy failed to instill in appellant an unabashed desire to comply and regain custody of her child.

            Though appellant initially took steps toward completing the plan’s requirements, the trial court was entitled to consider the inconsistencies in her testimony and the opinion testimony given by the social workers who agreed that a continued relationship with appellant was not in his best interest. The record fails to disclose that during an additional improvement period the appellant would be any more diligent in pursuing the counseling, classes, and employment she needed or that the grant of an additional improvement period would materially alter the appellant’s motivation.  Accordingly, the trial court did not have to accept as true the mother’s testimony of her future intentions or recent alterations in lifestyle.  See In re E.S.M., 550 S.W.2d 749, 757 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.).  The trial judge had an opportunity to view appellant’s demeanor during the trial, to weigh her testimony, and to examine her past deliberate conduct as a means of predicting her future behavior.  See Moreland v. State, 531 S.W.2d 229, 235 (Tex. Civ. App.—Houston [1st Dist.] 1975, no pet.). Thus, the trial court could have considered this evidence of appellant’s omissions as a parent in determining the best interest of E.A.G.

V.  Conclusion

            We find more than a mere scintilla of evidence supports the trial court’s conclusion that appellant’s conducted endangered the physical and emotional well-being of the child and that the termination was in the best interest of the child.  Likewise, the evidence is such that the fact finder could reasonably form a firm belief or conviction about the truth of the State’s allegations.

            Accordingly, we find the evidence legally and factually sufficient and therefore affirm the judgment of the trial court.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.3(b).

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            ^[1]  We refer to the child only by his initials and the parents only by their first names and last initials so as to avoid the use of proper names.  See Tex. Fam. Code Ann. § 109.002(D) (Vernon 1996); see also S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996).

            ^[2]  In her brief, appellant couches her points of error in terms of “no evidence” and “insufficient evidence.”  “No evidence” points of error raise questions of law; they address the legal sufficiency of the evidence to support a trial court’s findings.  See In re M.H., 745 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1988, no writ).

            ^[3]  Felix G. had a history of domestic abuse with both his ex-wife and his ex-wife’s father. On several occasions, police were called out to that home.  He pled guilty to a family violence charge in 1997.

            ^[4]  Lurking beneath appellant’s argument is the suspicion that the Department justifies the termination based upon appellant’s poverty.  In her brief, appellant relies in part upon the following passage:

In a process in which stability, continuity, and permanence are made paramount, there is a natural risk that subtle and improper prejudices may arise and unfairly weigh the process against parents with fewer material resources.

In re C.H., 25 S.W.3d 38, 53 (Tex. App.—El Paso 2000), rev’d, 45 Tex. Sup. Ct. J. 1000, 2001 WL 1903109 (July 3, 2002).  We do not find this argument persuasive.  Courts have long held that mere poverty of the parents is seldom, if ever, a sufficient ground for depriving them of the natural right to the custody of their child or children.  See Doyle v. Texas Dep’t of Protective and Regulatory Servs.,16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied) (noting that showing of poverty, standing alone, cannot demonstrate endangerment under the Family Code).  We distinguish between the unfortunate fact of a parent’s poverty and appellant’s case, which involves an attitude of indifference towards providing a safe and stable environment for her child.