in the Interest of R.N.W.

Opinion issued July 5, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00036-CV
———————————
IN THE INTEREST OF R.N.W., a Child
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Case No. 0037937
MEMORANDUM OPINION
D.C.W. appeals the trial court’s termination of his parental rights to his
child, R.N.W. In four issues, D.C.W. argues that the evidence was legally and
factually insufficient to support: (1) termination of his parental rights under Family
Code § 161.001(1)(N), (O), or (Q); and (2) the trial court’s finding that termination
of his parental rights was in R.N.W.’s best interest. See TEX. FAM. CODE ANN. §
161.001(1)(N), (O), (Q) (West. Supp. 2012). We affirm.
Background
R.N.W. was born on December 1, 1999. In July 2000, the trial court entered
an order establishing the parent-child relationship between R.N.W. and her father,
D.C.W. On August 25, 2000, D.C.W. was arrested and charged with assaulting
R.L.B., R.N.W.’s mother. D.C.W. subsequently pleaded guilty to the assault
charge and was sentenced to eight years’ imprisonment. D.C.W. was released in
2008, and, two years later, he was arrested for assaulting R.L.B. a second time.
D.C.W. pleaded guilty to assault against a family member and was sentenced to
four years’ imprisonment.
On April 14, 2011, the Department of Family and Protective Services
(DFPS) took custody of R.N.W. and filed suit, seeking termination of R.L.B.’s and
D.C.W.’s parental rights to R.N.W. and appointment of DFPS as temporary
managing conservator. The trial court appointed DFPS temporary managing
conservator, ordered R.N.W.’s continued removal, and ordered R.L.B. and D.C.W.
to comply with DFPS’s service plan during the pendency of the suit.
On November 13, 2012, the termination suit proceeded to trial. Before
hearing testimony, the trial court terminated R.L.B.’s parental rights based on her
affidavit of relinquishment. DFPS informed the trial court that it would pursue
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termination of D.C.W.’s parental rights under §§ 161.001(1)(D), (E), (F), (N), (O),
and (Q) of the Family Code. Five witnesses testified: (1) Sheena White, a
caseworker at DFPS; (2) Corinne Lundstrum, a volunteer with Child Advocates
and R.N.W.’s guardian ad litem; (3) D.C.W.; (4) Jewel Hchan, D.C.W.’s mother;
and (5) Jacqueline Redeau, D.C.W.’s aunt.
After hearing all the testimony, the trial court terminated D.C.W.’s parental
rights under § 161.001(1)(N), (O), and (Q) and made an express finding that
termination of D.C.W.’s parental rights was in R.N.W.’s best interest. After his
motion for new trial was denied, D.C.W. appealed.
Discussion
In his four issues, D.C.W. argues that the evidence supporting the trial
court’s termination of his parental rights to R.N.W. was legally and factually
insufficient.
A. Standard of Review
In a case to terminate parental rights by DFPS under § 161.001 of the Family
Code, DFPS must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination
and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. §
161.001. Clear and convincing evidence is “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
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truth of the allegations sought to be established.” Id. § 101.007 (West 2008); In re
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under
section 161.001(1) is necessary to support a judgment of termination when there is
also a finding that termination is in the child’s best interest.” In re A.V., 113
S.W.3d 355, 362 (Tex. 2003).
In a legal sufficiency review in a parental-rights-termination case, the
appellate court should 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
belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. We
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, disregarding all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. Id. If, after
conducting a legal sufficiency review of the record, we determine that no
reasonable factfinder could form a firm belief or conviction that the matter that
must be proven is true, then we must conclude that the evidence is legally
insufficient. Id.
In a factual sufficiency review, the 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. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether a
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reasonable jury could form a firm conviction or belief, the appellate court
maintains the required deference for the factfinder’s role. Id. at 26. “An appellate
court’s review must not be so rigorous that the only factfindings that could
withstand review are those established beyond a reasonable doubt.” Id. We should
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266. “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, then the evidence is factually insufficient.” Id.
B. Termination under Subsection 161.001(1)(Q)
In his third issue, D.C.W. argues that the evidence was legally and factually
insufficient to support termination of his parental rights to R.N.W. under
subsection 161.001(1)(Q).
1. Applicable Law
Termination of parental rights is a drastic measure and is of such weight and
gravity that due process requires that the petitioner seeking to terminate the
parent’s rights justify that termination by clear and convincing evidence. TEX.
FAM. CODE ANN. § 161.206(a) (2009); In re G.M., 596 S.W.2d 846, 847 (Tex.
1980). Under subsection Q, a parent’s rights may be terminated when the parent
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“knowingly engaged in criminal conduct that has resulted in the parent’s:
(i) conviction of an offense; and (ii) confinement or imprisonment and inability to
care for the child for not less than two years from the date of the filing the
petition.” TEX. FAM. CODE ANN. § 161.001(1)(Q). “Thus, if the parent is
convicted and sentenced to serve at least two years and will be unable to provide
for his or her child during that time, the State may use subsection Q to ensure that
the child will not be neglected.” In re A.V., 113 S.W.3d at 360. However, proof
that the parent is unable to care for the child is an additional requirement that is not
met by showing incarceration alone. In re B.M.R., 84 S.W.3d 814, 818 (Tex.
App.—Houston [1st Dist.] 2002, no pet.); see also In re H.R.M., 209 S.W.3d 105,
110 (Tex. 2006) (“Terminating parental rights under subsection Q requires that the
parent be both incarcerated or confined and unable to care for the child for at least
two years from the date the termination petition is filed.”).
“Because incarceration is inherently inconsistent with providing personal
care for a child,” the care contemplated by subsection Q includes arranging for the
care to be provided by another. In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—
Amarillo 2001, pet. denied). Once DFPS has established that a parent’s knowing
criminal conduct resulted in his incarceration for more than two years, the burden
shifts to the parent to produce some evidence as to how he will arrange to provide
care for the child during that period. Id.; see also Hampton v. Tex. Dep’t of
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Protective and Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004,
no pet.). When the parent meets his burden of production, DFPS then has the
burden of persuasion to show that the parent’s arrangement would not satisfy the
parent’s duty to the child. In re E.S.S., 131 S.W.3d 632, 639–40 (Tex. App.—Fort
Worth 2004, no pet.); In re Caballero, 53 S.W.3d at 396. Finally, when
determining whether an incarcerated parent is unable to care for a child, we may
consider such factors as the availability of financial and emotional support from
the incarcerated parent. In re B.M.R., 84 S.W.3d at 818.
2. Inability to Care
D.C.W. does not dispute that he knowingly engaged in criminal conduct
resulting in his incarceration for at least two years from the date of the filing of the
petition. He argues instead that the evidence was insufficient to show that he was
unable to care for R.N.W. Specifically, D.C.W. argues that he established he was
able to care for R.N.W. by placing her with his mother or aunt, and, therefore, the
burden shifted to DFPS to show that the arrangements would not satisfy his duty to
the child. He further contends DFPS failed to carry that burden.
D.C.W. correctly asserts that there was evidence that his mother, Hchan, and
his aunt, Redeau, were willing to care for R.N.W. under certain circumstances.
Specifically, Hchan testified that she “could take [R.N.W.] if [R.N.W.] wanted to
come.” Redeau likewise testified that she was willing to care for R.N.W. if
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R.N.W. wanted to live with her. But DFPS presented evidence that D.C.W’s
proposed arrangements with either Hchan or Redeau were inadequate to satisfy
D.C.W.’s duty to R.N.W.
To begin, the evidence does not establish that either Hchan or Redeau agreed
to assume D.C.W.’s parental responsibility to care for R.N.W. on D.C.W.’s behalf
while he was incarcerated. See In re H.R.M., 209 S.W.3d at 110 (“Cases
discussing the incarcerated parent’s provision of support through other people
contemplate that the support will come from the incarcerated parent’s family or
someone who has agreed to assume the incarcerated parent’s obligation to care for
the child.”). Although both testified that they were willing to have R.N.W. live
with them, each qualified her testimony by saying she would do so only if that was
consistent with R.N.W.’s wishes. When asked whether she thought R.N.W. should
be placed with her, Hchan testified: “Being honest, if she wants to come with me, I
will take her; but if she feels like she doesn’t, I will not fight her.” Likewise,
Redeau, testified: “If [R.N.W.] doesn’t want to live with me, I would respect her
rights.” This evidence suggests Hchan or Redeau would care for R.N.W. if
R.N.W. wanted to live with them, but D.C.W. adduced no evidence to demonstrate
how Hchan, Redeau, or anyone else would care for R.N.W. if—as was the case
here—R.N.W. did not want to live with either Hchan or Redeau. See In re N.R.T.,
338 S.W.3d 667, 676 (Tex. App.—Amarillo 2011, no pet.) (considering fact that
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grandmother had expressed reservations about accepting placement of child as
evidence that father was unable during his incarceration to care for child through
family surrogates).
In addition, there was ample evidence supporting the trial court’s conclusion
that the two proposed placements were not in R.N.W.’s best interest. D.C.W.
points out DFPS did not reject either Hchan or Redeau as potential placements
based on a completed home study, and he contends this is evidence that either
would have made an acceptable placement. DFPS is required to investigate a
proposed placement to determine if it is in the child’s best interest. See TEX. FAM.
CODE ANN. § 264.754 (West 2008) (“Before placing a child with a proposed
relative or other designated caregiver, the department must conduct an
investigation to determine whether the proposed placement is in the child’s best
interest.”). But, even if one is completed and approved, a home study is not
binding on the trial court. See In re G.C., No. 01-12-00935-CV, 2013 WL 816440,
at *6 (Tex. App.—Houston [1st Dist.] Mar. 5, 2013, no pet. h.) (mem. op.)
(rejecting appellant’s argument that DFPS wrongly denied his mother’s home
study because “even an approved home study would not have been binding on the
trial court”). Rather, in considering a potential placement, a court may weigh
evidence other than the results of a home study, including the child’s expressed
wishes and the nature of the relationship between the child and the proposed
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placement. See In re A.L., No. 13-01-388-CV, 2002 WL 34230855, at * 5–6 (Tex.
App.—Corpus Christi Aug. 22, 2002, no pet.) (finding that appellant was unable to
care for children, in part, based on children’s expressed desire to remain with foster
family and not to be placed with appellant’s family); In re G.C., 2013 WL 816440,
at *6–7 (considering evidence that grandmother had not seen or had any other
contact with child in several years).
Here, ample evidence weighed against the proposed placements. First,
White, the DFPS caseworker, testified that R.N.W. did not want to be placed with
Hchan, Redeau, or anyone in her father’s family. See In re A.L., 2002 WL
34230855, at * 5–6 (finding that appellant was unable to care for children, in part,
based on children’s expressed desire to remain with foster family and not to be
placed with appellant’s family).
Second, White and Lundstrum testified that they would not recommend
either proposed placement. White testified that DFPS did not conduct a home
study on Hchan because Hchan informed a DFPS caseworker that she had a history
with child protective services and had been charged with possession of heroin and
cocaine twenty years ago. According to White, placement with someone who has
a history with CPS would not be appropriate. Lundstrum, R.N.W’s guardian ad
litem, also testified that she would not recommend placing R.N.W. with Hchan.
While DFPS did complete a home study on Redeau, White testified that it was
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withdrawn after R.N.W. expressed that she did not want to live with Redeau. And
Lundstrum testified that Child Advocates would not recommend a placement for
R.N.W. if R.N.W. clearly expressed a desire not to be placed there.
Third, the evidence showing that neither of Hchan nor Redeau had a past
relationship with R.N.W. supports a finding that placement with them would be
inappropriate. See In re N.R.T., 338 S.W.3d at 676 (considering evidence that
grandmother had previously expressed reservations about accepting placement, she
had neither seen nor had any other contact with child in several years, and she did
not know where child was); In re G.C., 2013 WL 816440, at *6–7 (considering
evidence that grandmother had not seen or had any other contact with child in
several years). Hchan admitted that she has seen R.N.W. about twice in the last
five years. Redeau, who suffers from several medical problems, including
diabetes, high blood pressure, thyroid problems, and liver problems, admitted that
she had never before met R.N.W. 1
1
To the extent that D.C.W. is arguing he was able to care for R.N.W. himself, we
find sufficient evidence to the contrary. When determining whether an
incarcerated parent is unable to care for a child, we may consider such factors as
the availability of financial and emotional support from the incarcerated parent. In
re B.M.R., 84 S.W.3d at 818. As evidence of the unavailability of financial and
emotional support from D.C.W., DFPS presented the testimony of White, who
stated that, although D.C.W. had sent R.N.W. a few letters, he had had no contact,
in person or over the phone, with R.N.W. since his incarceration. White also
testified that she had no knowledge of any financial support or gifts provided to
R.N.W. by D.C.W. while incarcerated. She also testified that R.N.W. had no
desire to be placed with her father.
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After considering all of the evidence, including R.N.W.’s desire not to be
placed with her father or any of her father’s relatives, the absence of a past
relationship between R.N.W., on the one hand, and D.C.W., Hchan, or Redeau, on
the other, and other testimony to the effect that placement with Hchan or Redeau
was not recommended, we conclude that the trial court could have reasonably
formed a firm belief that the placements proposed by D.C.W. were inadequate to
satisfy D.C.W.’s duty to R.N.W. Therefore, we hold there is legally and factually
sufficient evidence to support the trial court’s finding that D.C.W. was unable to
care for R.N.W., either himself or through family surrogates, while incarcerated.
See In re N.R.T., 338 S.W.3d at 675–76 (finding evidence legally and factually
sufficient to support finding that appellant was unable to care for child during
incarceration where grandmother said she was willing to accept placement of child,
but home study was not approved, grandmother had previously expressed
reservations about accepting placement, grandmother had neither seen nor had any
other contact with child in several years, and grandmother did not know where
child was); In re G.C., 2013 WL 816440, at *6–7 (holding evidence legally and
Further, D.C.W. admitted that he did not have much of a relationship with R.N.W.
prior to being incarcerated because R.L.B. would not let him spend much time
with her. He testified that he finally got to know R.N.W. after he completed his
eight year sentence, at a time when R.N.W. was about nine years old. He
acknowledged that he had been out of prison for a total of thirty months of
R.N.W.’s life, and that he had spent only about five months of that time with her.
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factually sufficient to support trial court’s finding that appellant was unable to care
for child while incarcerated when appellant had no means of caring for child,
except for through his mother, appellant’s contact with child was limited to three
letters sent to DFPS, and appellant’s mother, who expressed willingness to care for
child, but who had not seen the child in several years, was rejected by DFPS as
acceptable placement); In re A.L., 2002 WL 34230855, at *5–6 (holding evidence
legally and factually sufficient to support finding that appellant was unable to care
for children when children expressed desire to remain with foster family and not to
be placed with appellant’s family, home study on appellant’s sister was denied, and
sister was already caring for four other children and mother, who was elderly and
ill).
We overrule D.C.W.’s third issue. Because sufficient evidence of only one
predicate finding is necessary to support termination, we need not address
D.C.W.’s remaining arguments relating to termination under section 161.001(1)(N)
and (O).
C. Best Interest of the Child
In his fourth issue, D.C.W. argues that the evidence was insufficient to
support the trial court’s finding that termination of his parental rights was in
R.N.W.’s best interest.
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1. Applicable Law
There is a strong presumption that the best interest of the child will be
served by preserving the parent-child relationship. In re A.A.A., 265 S.W.3d 507,
516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). The same evidence of
acts or omissions used to establish grounds for termination under subsection
161.001(1) may be probative in determining the best interests of the child. Id.
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). A court should consider the following factors, among others, when
determining whether the parent is willing and able to provide the child with a safe
environment: the child’s age and physical and mental vulnerabilities; whether the
child is fearful of living in or returning to the child’s home; 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;
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; whether there is a history of substance
abuse by the child’s family or others who have access to the child’s home; the
willingness and ability of the child’s family to seek out, accept, and complete
counseling services; and whether the child’s family demonstrates adequate
parenting skills. Id. § 263.307(b).
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The Texas Supreme Court has set out additional factors that courts may
consider when determining the best interest of the child, including: (1) the desires
of the child; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4)
the parental abilities of the individual seeking custody; (5) the programs available
to assist the individual to promote the best interest of the child; (6) the plans for the
child by the individual or by the agency seeking custody; (7) the stability of the
home or proposed placement; (8) the acts or omissions of the parent that may
indicate that the existing parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list is not exhaustive, and there is no requirement that
DFPS prove all of the factors in order for the court to make a valid finding on the
best interest of the child. In re A.A.A., 265 S.W.3d at 517.
2. Analysis
We conclude that the evidence is legally and factually sufficient to support
the trial court’s finding that termination of D.C.W.’s parental rights was in
R.N.W.’s best interest. First, evidence of R.N.W.’s desires, her present and future
emotional and physical needs, and D.C.W.’s ability to parent R.N.W. and provide
for her needs all support termination. The record reflects that R.N.W., who was
almost thirteen at the time of trial, did not want to be placed with her father or any
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of her father’s relatives. Additionally, D.C.W. admitted he did not have much of a
relationship with R.N.W and had spent only about five months with her since she
was born. And White testified that although D.C.W. had sent R.N.W. a few letters
while incarcerated, he did not have any contact with her over the phone or in
person, and he had not provided her with any gifts or other financial support. From
this evidence, the trial court could have reasonably concluded that D.C.W. has not
been able, and would not be able after being released from incarceration, to
provide for and support R.N.W.’s physical and emotional needs. See In re G.C.,
2013 WL 816440, at *9 (finding that appellant lacked of ability to provide for
child’s present and future emotional and physical needs when appellant had no
contact with child, and had not sent any letters, pictures, gifts, or financial support
while incarcerated).
We also consider whether there is a history of abusive or assaultive conduct
by the child’s family, as well as the emotional and physical danger to the child,
now and in the future. Both exist here. First, the record reveals D.C.W. has a
history of abusing R.L.B., R.N.W.’s mother. D.C.W. was convicted of assaulting
R.L.B. in 2000, when R.N.W. was just eight months old. After serving his eight-
year sentence, D.C.W. was out of prison for about twenty-two months before he
was again charged with assaulting R.L.B. He pleaded guilty to assault of a family
member and was sentenced to four years’ imprisonment. D.C.W. testified that
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R.N.W. was at home when the second assault on her mother occurred, and that
R.N.W. knew that he and R.L.B. were arguing. Second, White testified that,
because of D.C.W.’s criminal history, DFPS was concerned that something might
happen to R.N.W. if placed with D.C.W. Based on this evidence, the trial court
could have reasonably concluded that D.C.W.’s history of abusive conduct toward
R.N.W.’s mother would put a child in his custody in emotional and physical
danger now or in the future. See In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.—
Amarillo 2003, pet. denied) (holding termination of parental rights of mother and
father in best interest of child because father was physically abusive, mother had
failed to protect child from father, and both parents had been in jail for all of
child’s life).
In addition, we may consider the parent’s acts or omissions indicating that
the parent-child relationship is not a proper one, as well as any excuse for the
parent’s acts or omissions. As previously noted, D.C.W. has spent about five
months with R.N.W. since her birth. And since being incarcerated, he has made
only minimal attempts to contact R.N.W. This history of limited contact during
and after extended periods of incarceration supports the trial court’s finding. See
In re B.M.R., 84 S.W.3d at 821 (concluding evidence supported finding that
parent-child relationship was not proper when appellant spent no more than thirty-
17
one hours with child before going to prison and had limited contact with child
since being incarcerated).
Finally, we consider the plans for the child by the agency seeking custody
and the stability of the home or proposed placement. The record reflects that
D.C.W. has been incarcerated for assaulting R.N.W.’s mother for all but thirty
months of R.N.W’s life. This has left R.N.W. without a stable environment and
without any reliable source of emotional or physical support. White testified that
R.N.W. is currently in a foster home and has been in that home for about a year
and a half. White testified that R.N.W. is doing very well in the home and “she
loves it there.” She also testified that the current placement with the foster family
is stable, and that the family has committed to keep R.N.W. long-term, until a
permanent adoption can be made. In light of this evidence, the trial court could
have reasonably formed a firm belief that termination was in R.N.W.’s best
interest, even though DFPS has not yet identified a permanent placement for
R.N.W. See In re C.H., 89 S.W.3d at 28 (“[T]he lack of evidence about definitive
plans for permanent placement and adoption cannot be the dispositive factor [in a
best interest analysis]; otherwise, determinations regarding best interest would
regularly be subject to reversal on the sole ground that an adoptive family has yet
to be located.”); see also In re G.B. II, 357 S.W.3d 382, 384 (Tex. App.—Waco
18
2011, no pet.) (finding that DFPS is not required to make placement with relative
before party’s parental rights may be terminated).
In sum, we conclude that the evidence was legally and factually sufficient to
support the trial court’s finding that the termination of D.C.W.’s parental rights
was in R.N.W’s best interest. See In re S.M.L., 171 S.W.3d 472, 480–81 (Tex.
App.—Houston [14th Dist.] 2005, no pet.) (holding evidence legally and factually
sufficient to support finding that termination of father’s parental rights was in best
interest of child when child had bonded with foster parents, child had not bonded
with father, father was incarcerated and had pattern of violent criminal conduct,
and father did nothing to maintain any relationship with child during
incarceration); In re B.M.R., 84 S.W.3d at 820–21 (holding evidence legally and
factually sufficient to support best interest finding when father’s criminal history
caused concern for safety of child in future, father had history of not seeing child
for long periods of time and not providing financial support, father spent no more
than thirty-one hours with child from her birth until when he was incarcerated, and,
while incarcerated, father had made only minimal attempts to maintain contact
with child).
We overrule D.C.W.’s fourth issue.
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Conclusion
We conclude that legally and factually sufficient evidence supports the
termination of D.C.W’s parental rights under section 161.001(1)(Q) of the Family
Code and the trial court’s finding that termination was in R.N.W.’s best interest.
Accordingly, we affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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