in the Interest of T.L.R., Minor Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00004-CV
IN THE INTEREST OF T.L.R.,
MINOR CHILD
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FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
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MEMORANDUM OPINION1
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In eight issues, appellant D.S. appeals the trial court’s order terminating his
parental rights to his son, Terrence Louis Rogers.2 He contends that the
evidence is legally and factually insufficient to support the grounds for termination
and the trial court’s finding that termination is in the child’s best interest. We
affirm.
Standard of Review
1
See Tex. R. App. P. 47.4.
2
In accordance with Texas Rule of Appellate Procedure 9.8, we have
referred to the child using a pseudonym. Tex. R. App. P. 9.8.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001 (West 2011); see also § 161.206(a)
(West 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 (West 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 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. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
2
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the verdict 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 engaged in the behavior described in one of the subsections of section
161.001(1) and that the termination of the parent-child relationship would be in
the best interest of the child. Tex. Fam. Code Ann. § 161.001; 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 or
conviction in the truth of its finding, then the evidence is factually insufficient. In
re H.R.M., 209 S.W.3d at 108.
Sufficiency of the Evidence on Failure to Comply with Service Plan
In his seventh and eighth issues, appellant contends that the evidence is
legally and factually insufficient to support the jury’s finding that he failed to
comply with the requirements of a court-ordered service plan.
Applicable Law and Facts
To terminate parental rights based on Section 161.001(1)(O), a trial court
must find by clear and convincing evidence that the parent failed to comply with
3
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 the child’s removal from the
parent under family code chapter 262 for the abuse or neglect of the child. Tex.
Fam. Code Ann. § 161.001(1)(O). Appellant concedes that Terrence was in the
Department’s custody for at least nine months and does not dispute that he was
removed as a result of abuse or neglect. Instead, he argues that the Department
did not meet its burden of proof to establish that he failed to comply with the trial
court’s order requiring him to complete the requirements of the service plan.3
Terrence was born on July 16, 2009. In June 2010, appellant went to jail
after being charged with an offense for which the grand jury later no-billed him.
While he was in jail, the Department removed Terrence from his mother (Mother)
after police found her passed out in a car that was parked in an alley, with the
windows rolled up and no air conditioning on.4 Terrence was in the back seat
with his cousins, tied into his carseat because the straps were broken.
Appellant was released from jail in September 2010. He testified that as
soon as he got out of jail, he and his mother went to the Department’s offices to
3
According to appellant, “[t]his is the Department’s best termination ground
but basic ideas of fairness require it to be reversed.”
4
Mother signed an affidavit relinquishing her rights and did not appeal the
termination order.
4
find out how to get Terrence returned to him. But appellant had not yet been
confirmed as Terrence’s father, and he had requested that DNA testing be
performed to confirm whether Terrence was his biological child. Test results
confirmed paternity in October 2010. A Department supervisor testified that a
service plan should have been prepared at that time, but the caseworker
assigned to the case did not prepare one until January 2011. That service plan,
which the trial court incorporated as an order, required appellant to, among other
things, comply with all current and future court orders, avoid all criminal activity
and any persons engaging in criminal activity including persons using illegal
drugs, maintain and obtain a legal source of income, obtain and maintain a safe
and stable home environment, complete random drug screens on the date
requested, and test negative for illegal substances. Appellant signed the service
plan.
Appellant admitted at trial that he had failed to comply with all of the court
orders in this case.
In particular, appellant admitted that he had failed to obtain stable
employment and housing. He explained that he could not find steady work
because he did not have an ID card; although Department workers tried to help
him obtain his Oklahoma birth certificate and other documents he would need to
obtain an ID card, he was still waiting on his birth certificate at the time of trial.
Appellant testified that after he got out of jail, he lived in a house next door to his
mother that she owned, but the Department made him move because his
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brother, whom the Department suspected was a drug user, lived with his mother
next door, and they were concerned about the situation. Without living in the
house owned by his mother, appellant could only afford to sleep at friends’
houses on a temporary basis or in a hotel when he could get the money. But
appellant testified that the Department allowed him to move back into the house
next to his mother’s in January 2011, and except for when he went to rehab in
March and April 2011, he continued to live there until the time of trial. At the time
of trial, he paid utilities for that house but no rent. He did not have a full-time job;
instead, he worked at odd jobs.
Appellant also admitted that he had smoked marijuana before going to
rehab in March 2011, but he denied using methamphetamine. The intake from
rehab, however, shows that he told the counselor he had smoked both marijuana
and methamphetamine in the thirty days before attending rehab and that he had
used drugs multiple times in the week before rehab. He said he smoked the
marijuana because he was depressed about his friend’s committing suicide and
his son’s being in the Department’s care. Mother testified that she used
methamphetamine with appellant before and after he went to rehab.
Appellant admitted that he did not submit to random drug screens and did
not submit to hair follicle testing ordered by the trial court5 in January 2011; he
5
When appellant was in the office and was asked for a hair sample, they
could not find one because he had shaved all his body. Appellant said that was
his practice. The trial court’s order stated that appellant’s failure to provide a
specimen would be deemed a positive result.
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said he tried to schedule weekly drug tests with CPS instead to build up a
positive case history. The Department supervisor testified that appellant never
requested weekly drug tests, and although he had refused every other drug test
requested by the Department, he specifically requested one on July 29, 2011.
She thought he must have believed he would be clean that day and not the
others. The Department was never able to get a baseline drug test to compare
to future tests. Appellant admitted being an addict. He also failed to provide the
Department with a medical release so that they could obtain medical and mental
health records.
Mother testified that in January 2011, appellant came into the place where
she was then living, pushed her, and cut the finger of a man she was living with.
She was pregnant with appellant’s second child at the time. In February 2011,
he showed up at Dollar General where she was shopping and hit her on the side
of her face. In June 2011, he hit her on the side of her face with a beer bottle
and left hand marks on her arm. But Mother testified that she would not press
charges against appellant because she loved him. She said that there had been
only a couple of instances of domestic violence in the past before Terrence’s
removal but things “really went downhill” after that.
The Department supervisor testified that she participated in making
appellant’s service plan and going over it with him. She also testified that the
Department made information available to appellant to help him complete his
service plan, but “[t]here was very little cooperation.”
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Analysis
Despite appellant’s admission that he failed to comply with his service
plan, his argument is that he substantially complied with the material terms of the
plan. But it is well settled that the family code does not provide for excuses for
failure to complete court ordered services, nor does it consider “substantial
compliance” to be the same as completion. See In re S.G., No. 02-11-00122-CV,
2011 WL 5527737, at *4 (Tex. App.––Fort Worth Nov. 10, 2011, no pet.) (mem.
op.); In re M.C.G., 329 S.W.3d 674, 675–76 (Tex. App.––Houston [14th Dist.]
2010, pet. denied) (op. on reh’g). Rather, any excuse for failing to complete a
family services plan goes only to the best interest determination. In re S.G.,
2011 WL 5527737, at *4.
Based on the above evidence, including appellant’s explicit admissions
that he failed to complete certain aspects of the service plan, we conclude and
hold that the evidence is legally and factually sufficient to support the jury’s
finding that appellant failed to comply with a court-ordered service plan as set
forth in family code section 161.001(1)(O). See In re T.N.F., 205 S.W.3d 625,
630–31 (Tex. App.––Waco 2006, pets. denied), overruled in part on other
grounds by In re A.M., No. 10-12-00029-CV, 2012 WL 3242733 (Tex. App.—
Waco Aug. 9, 2012, no pet. h.) (mem.op.). We overrule appellant’s seventh and
eighth issues.
Because we have held that the evidence is sufficient to support the jury’s
findings on at least one of the conduct grounds, we need not address appellant’s
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second through sixth issues challenging the other conduct grounds found by the
jury. See In re S.B., 207 S.W.3d 877, 886 (Tex. App.––Fort Worth 2006, no
pet.).
Sufficiency of the Evidence on Best Interest
In his first issue, appellant contends that the evidence is legally and
factually insufficient to support the jury’s finding that termination was in
Terrence’s best interest.
Applicable Law
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) (West 2008). The
following factors should be considered in evaluating the parent’s willingness and
ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report
and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s home;
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(6) the results of psychiatric, psychological, or developmental evaluations of the
child, the child’s parents, other family members, or others who have access to
the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s
family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others
who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and
complete counseling services and to cooperate with and facilitate an appropriate
agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including
providing the child and other children under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child’s
physical and psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may
not be directed at the child; and
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(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family
and friends is available to the child.
Id. § 263.307(b); In re R.R., 209 S.W.3d at 116.
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;
(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, and other factors not on the list may also be considered when
appropriate. In re C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
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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.
Analysis
Terrence was only two and one-half years old at the time of trial. Appellant
testified that he and Terrence were bonded with each other and that they would
tell each other they loved each other. Terrence was healthy when he was born
and did not have any significant medical problems or special health needs before
or after removal other than being behind on his immunizations. Terrence was
developmentally on target and had been evaluated by ECI,6 but he did not qualify
for services.
The Department supervisor testified that the Department had opened a
prior case on Terrence, but she did not know how that case was resolved, nor did
she know whether appellant had any involvement in that case. Upon removal in
this case, Terrence was placed with a foster family; in February 2011, the
Department placed him with appellant’s mother after the trial court ordered it to
do so. Terrence was later removed from the care of appellant’s mother after she
6
ECI stands for Early Childhood Intervention. See In re C.H., No. 02-08-
00239-CV, 2009 WL 2972640, at *10 (Tex. App.––Fort Worth Sept. 17, 2009, no
pet.) (mem. op.).
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refused to take a court-ordered drug test. Terrence was placed in foster care
again; he was with his third foster family at the time of trial.
Because appellant was not forthcoming with the Department about his
medical or mental health records, and did not complete a psychiatric evaluation
through a Department provider, there was no evidence regarding any psychiatric
examinations. The evidence does show that appellant is a long-time drug addict
and has a history of abusive conduct toward Mother, with whom he continued to
have an on and off again relationship after Terrence was removed. The
Department supervisor did not think that appellant had dealt with his drug issues
and could not provide Terrence with a stable home.
Although wanting Terrence to be returned, appellant and his family showed
a lack of cooperation with the Department and the CASA worker. The
Department supervisor testified that appellant was “frustrated, angry, and
belligerent” and not open to suggestions and help from the Department.
However, appellant also testified that he had a hard time obtaining help from the
Department setting up the necessary counseling and psychiatric appointments,
and there was evidence that the first caseworker was negligent in originally
setting up the service plan. According to the Department supervisor,
reunification was the original goal until September 2011; the goal was changed to
termination then because neither parent had made progress on their service
plans. Appellant contends that the Department’s lack of cooperation excuses his
behavior in failing to comply with the service plan, but the Department’s
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omissions fail to explain appellant’s continued lack of cooperation, especially with
respect to drug testing and violence against Mother.
Appellant testified that if Terrence were to be returned to him, he would
probably spend time going back and forth between his house and appellant’s
mother’s house. Although the Department supervisor testified that she had no
concerns about the physical safety of appellant’s mother’s home, a CASA case
supervisor testified that appellant’s mother was uncooperative with letting CASA
visit Terrence while in her care. She would not answer the door of her home
when the supervisor and CASA volunteer came to visit. Appellant would not
cooperate with CASA either, but the supervisor only tried to contact him once,
and she admitted that he could have been in rehab at the time.
Terrence’s CASA volunteer met appellant’s mother in her home in January
2011 the week Terrence moved in with her. Appellant’s mother would only let
her in the living room, but Terrence looked fine. The volunteer had a difficult time
getting back to the house to visit, however; no one would return her phone calls
and no one would come to the door. She tried to visit about twenty times,
sometimes several times a day over a three-month period; she got in only one
time because a man was walking out the door, and she caught him with the door
open. At that time, Terrence was dirty, his pajamas were soiled, and he smelled
as if he had not been bathed. In addition, the house was so cold she could see
her breath in the air. Appellant’s mother would not let her into the rest of house,
so she did not know where Terrence was sleeping.
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According to the CASA volunteer, Terrence was doing very well in foster
care. Appellant’s interactions with him during visitation were positive. She
thought that his parents loved him, but she did not think they could handle being
together and raising children. The volunteer was not in favor of termination but
rather relinquishment with an open adoption. Nevertheless, she thought
termination was in Terrence’s best interest.
The Department supervisor testified that Terrence would be easy to adopt;
he had not had problems at any of his placements. Although his then-current
foster family had not expressed an interest in adopting him, one of his former
foster families had.
Although some factors in the best interest analysis do weigh in appellant’s
favor, particularly his love for and bond with his young child, we cannot say that
the evidence weighing in favor of termination is insufficient. The jury could
reasonably have chosen to believe from the evidence that appellant had not dealt
with his drug addiction and was attempting to conceal that fact from the
Department, did not have a supportive or stable home environment for Terrence,
was not equipped to parent Terrence adequately, and had not changed his own
destructive patterns of conduct, particularly toward Mother. Accordingly, we
conclude and hold that the evidence is legally and factually sufficient to support
the jury’s finding that termination was in Terrence’s best interest. We overrule
appellant’s first issue.
Conclusion
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Having overruled appellant’s dispositive issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: September 13, 2012
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