in the Interest of A.L.H., Child

Affirmed in Part; Reversed and Rendered in Part; and Opinion filed June 16,
2015.
In The
Fourteenth Court of Appeals
NO. 14-14-01029-CV
NO. 14-14-01030-CV
IN THE INTEREST OF A.L.H., A Child
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2014-00466J
OPINION
T.N.H. (“the mother”) appeals the trial court’s judgment terminating her
parental rights to her child, A.L.H. (“the child”) (appeal number 14-14-01029-CV).
L.L.M. (“the father”) also appeals the trial court’s judgment terminating his
parental rights to the child (appeal number 14-14-0130-CV). The mother and the
father filed separate appellate briefs. We affirm the trial court’s judgment as to the
mother and, finding the Texas Department of Family and Protective Services (“the
Department”) presented insufficient evidence of its reasonable efforts to return the
child, we reverse as to the father.
I. THE MOTHER’S APPEAL
The Department moved to have the parental rights of the mother terminated.
See Tex. Fam. Code Ann. § 161.001 (West 2014). At the hearing held December 3,
2014, an affidavit of voluntary relinquishment executed by the mother was
admitted into evidence without objection. In her first issue, the mother asserts the
evidence is legally and factually insufficient for the trial court to have determined
that her affidavit of voluntary relinquishment was voluntarily executed.
A trial court may terminate the parent-child relationship if it finds by clear
and convincing evidence that the parent has executed an unrevoked or irrevocable
affidavit of relinquishment of parental rights as provided by the Family Code and
that termination is in the child’s best interest. See id. § 161.001(1)(K), (2). Section
161.103 of the Family Code lists the requirements for an affidavit of voluntary
relinquishment of parental rights. See Tex. Fam. Code Ann. § 161.103 (West
2014). Evidence that an affidavit of voluntary relinquishment was signed,
notarized, witnessed, and executed in compliance with section 161.103 of the
Family Code is prima facie evidence of its validity. In re D.R.L.M., 84 S.W.3d 281,
296 (Tex. App.—Fort Worth 2002, pet. denied).
Section 161.211(c) of the Family Code limits any direct or collateral attack
on an order terminating parental rights based on an unrevoked affidavit of
relinquishment of parental rights to issues relating to fraud, duress, or coercion in
the execution of the affidavit. See Tex. Fam. Code Ann. § 161.211(c) (West 2014).
The mother’s affidavit was notarized and signed in the presence of two
witnesses. The mother makes no claim, other than alleged involuntariness, that the
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affidavit was not executed in compliance with section 161.103.1 The mother argues
that it is the Department’s burden to negate fraud, duress, or coercion in the
execution of the affidavits, citing In re D.E.H., 301 S.W.3d 825 (Tex. App.—–Fort
Worth 2009, pet. denied.). However, that case holds the opposite. Id. at 830 (“The
burden of proving such wrongdoing is on the party opposing the affidavit.”). Here,
the mother is opposing the affidavit, yet presented no evidence of fraud, duress or
coercion in its execution.
The mother, who did not appear at the hearing, provides no evidence or
argument in her brief that she involuntarily executed her relinquishment affidavit,
and the record contains no evidence of fraud, duress, or coercion. Accordingly, we
overrule the mother’s first issue.
In her second issue, the mother contends the evidence is legally and factually
insufficient to support a finding that termination was in the best interest of the
child. See Tex. Fam. Code Ann. §161.001. The mother declared in her affidavit of
relinquishment that termination is in the best interest of the child. In Brown v.
McClennan County Child Protective Services, 627 S.W.2d 390, 394 (Tex. 1982),
the Supreme Court of Texas found “it was the intent of the Legislature to make
such an affidavit of relinquishment sufficient evidence on which the trial court can
make a finding that termination is in the best interest of the children.” See also In
re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.);
Lumbis v. Texas Dep’t of Protective & Regulatory Servs., 65 S.W.3d 844, 851 n.1
(Tex. App.—Austin 2002, pet. denied); Ivy v. Edna Gladney Home, 783 S.W.2d
1
The mother’s designation in the affidavit of the father’s sister, M.M., as the prospective
adoptive parent does not affect the voluntariness of the affidavit as the statute does not require
the trial court to abide by the parent’s choice of a managing conservator expressed in the
relinquishment affidavit. See Tex. Fam. Code Ann. § 161.103(b)(12); Dep’t of Family &
Protective Servs. v. Alternatives In Motion, 210 S.W.3d 794, 804 (Tex. App.—Houston [1st
Dist.] 2006, pet. denied).
3
829, 833 (Tex. App.—Fort Worth 1990, no writ) (“An affidavit of waiver of
interest in child, in and of itself, is sufficient to find termination is in the best
interest of the child.”). Furthermore, the Department’s caseworker, Amy
Zachmeyer, testified that termination was in the child’s best interest. We find the
record contains sufficient evidence from which the trial court reasonably could
form a firm belief or conviction that termination is in the best interest of the child.
The mother’s second issue is overruled.
Having overruled both of the mother’s issues, we affirm the trial court’s
judgment terminating the mother’s parental rights to the child.
II. THE FATHER’S APPEAL
The Department also moved to have the parental rights of the father
terminated. See Tex. Fam. Code Ann. § 161.001. Following a hearing, the trial
court terminated the father’s parental rights on the grounds that the father (1)
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endangered the child’s physical or emotional well-being
(section 161.001(1)(D)); and (2) constructively abandoned the child (section
161.001(1)(N)).2 The trial court also determined that it is in the child’s best interest
to terminate the father’s parental rights (section 161.001(2)). Id. §§ 161.001(1)(D)
& (N); 161.001(2). On appeal, the father asserts the evidence is legally and
factually insufficient to support the trial court’s judgment on either of the two
statutory grounds for termination. See id. § 161.001(1)(D), (N). The father does not
challenge the trial court’s decision that termination was in the child’s best interest.
See id. § 161.001(2).
2
Although requested, the trial court did not file findings of fact and conclusions of law.
4
A. Burden of Proof and Standards of Review
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Id. §
161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and
convincing evidence is that 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); In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). This heightened burden of proof results in a
heightened standard of review. In re C.H., 89 S.W.3d at 26 (“[T]he appellate
standard for reviewing termination findings is whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations.”); see also In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
In a legal-sufficiency review, we consider all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002). This means we must assume the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard
all evidence that a reasonable factfinder could have disbelieved or found to have
been incredible, but we do not disregard undisputed facts, regardless of whether
they support the finding. Id. If we determine no reasonable factfinder could form a
firm belief or conviction the matter to be proven is true, we must conclude the
evidence is legally insufficient. Id.
In a factual-sufficiency review, we give due consideration to evidence the
factfinder reasonably could have found to be clear and convincing. Id. Our inquiry
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is whether the evidence is such that a factfinder reasonably could form a firm
belief or conviction about the truth of the Department’s allegations. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that evidence in favor of its finding. Id. If, in light of the entire
record, the disputed evidence is so significant that the factfinder could not
reasonably have formed a firm belief or conviction, we must find the evidence is
factually insufficient. Id.
B. The Evidence
Amy Zachmeyer, the Department’s caseworker, testified that during the
course of this case she never had face-to-face contact with the father, and at the
time of the hearing, had most recently communicated with him a month earlier.3
According to Zachmeyer, the father has not visited the child at all throughout the
case, has not provided anything for the care and support of the child, and has not
requested visitation. The father failed to comply with court orders to establish the
paternity of the child, did not appear at any of the hearings, and did not appear at
trial. The father has four children with the mother and all four have come into the
Department’s care. The other three children all came into the Department’s care
due to the mother’s drug use before the child was born. One of those children has
been placed with a relative, one is in a foster home, and one has been adopted by
foster parents. The father was not present when the child was born but knew of the
child’s birth.
3
Zachmeyer testified the father called “to inform me that he was not a citizen of the
United States and that he had received a letter from John Kerry stating that he is a United States
National and that the laws of this country do not apply to him and that I should give him his
children back.” Zachmeyer testified there were concerns about mental health issues with the
father. However, the father’s mental health was not a basis for the termination of his parental
rights.
6
The child came into the Department’s care initially upon a report of medical
neglect. Zachmeyer testified there were also concerns due to the family history.
Zachmeyer further testified as follows:
Q Do you believe, based on the mother’s prior CPS [Child Protective
Services] use -- CPS history and drug use that [the father] had reason
to believe that [the child] would be in an environment that was
physically or emotionally harmful to him if left in his mother’s care?
A Yes.
Q Did [the father] do anything to alleviate those concerns?
A No.
Q In fact, he has never came [sic] to court, correct?
A I don’t know if he came to the ex -- or to the original hearing, but
he left prior to the status hearing. He has not attended any hearings at
this time.
Q Okay. And on multiple other occasions [the father] is suspected to
have been using drugs?
A Yes.
According to Zachmeyer’s testimony, at the time the child came into care, the
mother tried to evade the urine drug screen by cleansing her system with cayenne
pepper and refused to submit to a hair follicle drug test. Zachmeyer testified to her
belief that the father knowingly placed the child in a dangerous environment by
leaving the child with the mother.
The father’s sister, M.M. (“the aunt”), testified that she is aware the father
went to jail and she is aware of his drug problem, specifically his usage of crack
cocaine. The aunt testified that someone else was taking care of the child before
the Department became involved because both the mother and the father were in
jail. The aunt testified that if the child were placed in her care, she would not allow
the parents into the child’s life and would protect him.
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C. Constructive Abandonment (Subsection N)
To prove constructive abandonment, clear and convincing evidence must
establish that the child has been in the custody of the Department for at least six
months and: (1) the Department made reasonable efforts to return the child to the
parent; (2) the parent has not regularly visited or maintained significant contact
with the child; and (3) the parent has demonstrated an inability to provide the child
with a safe environment. See Tex. Fam. Code Ann. § 161.001(1)(N). The first
element focuses on the Department’s conduct; the second and third elements focus
on the parent’s conduct.
If the evidence is legally insufficient on any one of these elements, the
termination finding cannot be sustained. In re D.T., 34 S.W.3d 625, 633 (Tex.
App.—Ft. Worth 2000, pet. denied). The party seeking the termination of parental
rights bears the burden of proof. In re A.S., 261 S.W.3d 76, 90 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). Appellant challenges whether there was
clear and convincing evidence that the Department made reasonable efforts to
return the child to him.
The statute requires clear and convincing evidence that the Department
made reasonable efforts to return the child to the parent. Tex. Fam. Code Ann. §
161.001. In accordance with the heightened standard of review that results from
this heightened burden of proof, we find the evidence presented at trial is
insufficient to support the trial court’s conclusion that the Department undertook
reasonable efforts to return the child to the father. See Tex. Fam. Code Ann. §
101.007; In re C.H., 89 S.W.3d at 25–26; In re C.M.C., 273 S.W.3d at 873.
Generally, implementation of a family service plan by the Department is
considered a reasonable effort to return a child to the parent. In re S.A.C., 04-13-
8
00058-CV, 2013 WL 2247471, at *2 (Tex. App.—San Antonio May 22, 2013, no
pet.) (mem. op.). The Department concedes that no plan was created for the father.
A court may waive the requirements of a service plan and make reasonable
efforts to return the child to a parent if the trial court finds the parent subjected the
child to “aggravated circumstances.” Tex. Fam. Code Ann. § 262.2015(a)(West
2014); see also In re Pate, 407 S.W.3d 416, 419-20 (Tex. App.—Houston [14th
Dist.] 2013 no pet.) (holding that in the absence of aggravating circumstances as
defined by section 262.2015, the Department was required to make reasonable
efforts to enable the child to return home under section 261.201 of the Texas
Family Code). The court can make such a finding if, as may be relevant here, “the
parent’s parental rights with regard to another child have been involuntarily
terminated based on a finding that the parent’s conduct violated section
161.001(1)(D) or (E)” or “if the parent’s parental rights with regard to two other
children have been involuntarily terminated.” Tex. Fam. Code Ann. § 262.2015(5)
and (7) (West 2014).4
The Department did not plead aggravating circumstances in its original
petition for termination. The Department’s Permanency Plan and Progress Report,
filed March 26, 2014, states, “Judge Devlin ordered aggravated circumstances, first
permanency hearing on 4/3/14.” It is unclear which parent is subject to the alleged
finding. Our record does not contain a reporter’s record from that hearing or an
order signed by the trial judge to that effect. At trial, the Department did not argue
aggravating circumstances or offer into evidence any exhibits reflecting the basis
for the statement contained in the progress report. The Department also does not
argue aggravating circumstances on appeal.
4
The statute lists several other “aggravating circumstances.” With no findings of fact to
guide us, we decline to discuss all possible factors.
9
Zachmeyer testified that the father was not asked to comply with a family
service plan “due to prior termination.” However, the record does not reflect that
any prior termination was based on a finding that the father’s conduct violated
subsection (D) or (E). Zachmeyer testified that other children of the father “came
into [the Department’s] care” due to their mother’s drug use, but there is no
evidence that the father’s parental rights were terminated as to more than one child.
Accordingly, the record fails to demonstrate evidence of aggravating
circumstances under section 262.2015. To the extent the trial judge may have
found aggravating circumstances and waived the requirements of a service plan
and the requirement to make reasonable efforts to return the child to the father,
there is no support for the finding in this record.
We now consider, therefore, whether the record reflects there were
reasonable efforts to return the child in spite of the absence of a family service plan
or a waiver of the requirement to make such efforts. See In re Pate, 407 S.W.3d at
420. As previously stated, we focus on the Department’s efforts, not the father’s.
Tex. Fam. Code Ann. § 161.001(1)(N)(i). The Department argues the record
contains such evidence, relying upon In re B.S.T., 977 S.W.2d 481 (Tex. App.—
Houston [14th Dist.] 1998), rev’d on other grounds by In re C.H., 89 S.W.3d 17,
26 (Tex. 2002).
In In re B.S.T., appellant’s whereabouts were unknown at the time the
children were taken into custody by the Department. Id. at 486. When appellant
was located after his release from prison, he was advised of visitation and visited
his children twice, but made no further efforts. Id. Caseworkers advised appellant
to sign an affidavit of paternity, but he failed to do so. The Department’s
caseworker testified that all reasonable efforts were made to return the children to
10
the parents. The B.S.T. court found such evidence sufficient to support termination
under subsection N. Id.
Here, the Department argues that its actions to serve the father with notice of
the suit and the trial court’s orders to establish the father’s paternity are evidence
of the Department’s reasonable efforts. The evidence reflects the father had called
Zachmeyer, but she had never seen him face-to-face. Zachmeyer did not testify, as
did the caseworker in In re B.S.T., that all reasonable efforts were made to return
the child to the father. We conclude attempted service of suit and establishment of
paternity, standing alone, are insufficient to produce in the trial court’s mind a firm
belief or conviction that the Department made reasonable efforts at reunification.
See id.
The Department also argues that its efforts to place the child with the aunt
constitute reasonable efforts. However, the record reflects the aunt resides in
Arizona and she testified that she would not allow the parents into the child’s life.
We therefore disagree that the Department’s efforts to place the child with the aunt
constitute an effort to return the child to the father.
Accordingly, we hold that the evidence is legally insufficient to support the
trial court’s termination of the father’s parental rights under subsection N.5 The
father’s first issue is sustained.
5
The father also argued the Department failed to prove that he has demonstrated an
inability to provide the child with a safe environment. Tex. Fam. Code Ann. § 161.001(1)(N)(iii).
As we already have held that the evidence is legally insufficient as to the second element of
subsection N, we need not reach the father’s additional argument. If the evidence is legally
insufficient on any one element, the termination finding cannot be sustained. In re D.T., 34
S.W.3d at 633.
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D. Endangerment (Subsection D)
To prove endangerment, there must be clear and convincing evidence that
the parent “knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of
the child.” Tex. Fam. Code Ann. §161.001(1)(D). Subsection D concerns the
child’s living environment, rather than the conduct of the parent, although the
conduct of the parent is relevant to the child’s environment. In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Subsection D is
not a basis for terminating parental rights if the parent was unaware of the
endangering environment. In re Z.C.J.L., 14-13-00115-CV, 2013 WL 3477569, at
*12 (Tex. App.—Houston [14th Dist.] July 9, 2013, no pet.) (mem. op.); see also
In re T.H., 131 S.W.3d 598, 603 (Tex. App.—Texarkana 2004, pet. denied)
(“[E]ven if clear and convincing evidence supported the trial court’s finding that
the environment posed a danger to T.H.’s well-being, the Department failed to
show that [the father] knowingly placed or allowed T.H. to remain in such an
environment.”). However, a parent need not know for certain that the child is in an
endangering environment; awareness of such a potential is sufficient. Id.; see also
In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.) (“It is
sufficient that the parent was aware of the potential for danger to the child in such
environment and disregarded that risk.”). The relevant time period is before the
Department removes the child. In re J.R., 171 S.W.3d 558, 569 (Tex. App.—
Houston [14th Dist.] 2005, no writ).
Zachmeyer testified that “based on the mother’s prior [Department]
history and drug use that [the father] had reason to believe that [the child] would be
in an environment that was physically or emotionally harmful to him if left in his
mother’s care.” Zachmeyer further testified that the father knowingly placed the
12
child in an environment that was dangerous to the child. No evidence was
presented to support Zachmeyer’s opinion that the father had knowledge of the
mother’s drug use, either in the past or present. The record contains no drug test
results, criminal records, or prior termination decrees for either parent. Zachmeyer
did not present any factual bases to support her conclusory testimony.
Unsupported, conclusory opinions of a witness do not constitute evidence of
probative force. In re D.W., 01-13-00880-CV, 2014 WL 1494290, at *6 (Tex.
App.—Houston [1st Dist.] Apr. 11, 2014, no pet.) (mem. op.). A witness’s belief is
no more than mere surmise or suspicion, which is not the same as evidence.
Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied).
The record reflects the Department introduced no evidence of the actual
physical surroundings or conditions of the child’s environment prior to his
removal.6 Moreover, the Department did not introduce legally–sufficient evidence
that the father had knowledge of the child’s environment at that time. Although
there is some evidence of the father’s suspected drug use, the record fails to reflect
when it occurred or whether it posed a potential danger to the child.
Subsection D unambiguously requires proof that the father knowingly
exposed the child to an endangering environment. See In re J.R., 171 S.W.3d 558,
570 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The record contains no
evidence that the child was in an endangering environment before the child was
taken into the Department’s care or that the father knowingly exposed the child to
such an environment. We therefore conclude the evidence is legally insufficient to
support the termination of the father’s parental rights under subsection D and we
sustain the father’s second issue.
6
Zachmeyer testified that the child came into Department care due to concerns of
medical neglect and the mother’s drug use. Medical neglect was ruled out.
13
CONCLUSION
We affirm the trial court’s judgment terminating the mother’s parental rights
to the child. We conclude the evidence is insufficient to support the termination of
the father’s parental rights pursuant to subsection D or N. Accordingly, we reverse
that portion of the trial court’s judgment terminating the father’s parental rights to
the child, and render judgment denying the Department’s request to terminate the
father’s rights to the child.
No challenge was made to that portion of the trial court’s judgment naming
the Department as sole managing conservator. The trial court is allowed to appoint
the Department as managing conservator of a child without terminating parental
rights if the court finds that: (1) appointment of a parent as managing conservator
would not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development; and (2)
it would not be in the best interest of the child to appoint a relative of the child or
another person as managing conservator. See Tex. Fam. Code Ann. § 263.404(a)
(West 2014). Here, the trial court made the required best-interest findings to
support the appointment of the Department as sole managing conservator of the
child. See id.; In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007). In this context, a
challenge to the appointment of the Department as sole managing conservator of
the child is not subsumed in the father’s challenge of the termination decision. In
re J.A.J., 243 S.W.3d at 615-17. Accordingly, the remainder of the trial court’s
judgment is affirmed.
/s/ Martha Hill Jamison
Justice
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
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