in the Interest of N.R., S.A.-R., and A.A.-R., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00392-CV
IN THE INTEREST OF N.R., S.A.-R.,
AND A.A.-R., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant M.R. (Mother) appeals the termination of her parental rights to
her children N.R. (Nicolas), S.A.-R. (Sophia), and A.A.-R. (Alexandra),2 arguing
that there is insufficient evidence to show that termination is in the children’s best
interests. We will affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
2
We use aliases for all of the children throughout this opinion. See Tex. R.
App. P. 9.8(b)(2).
II. Factual and Procedural Background
The Department of Family and Protective Services (DFPS) received its first
referral alleging physical abuse by the father of the children, E.A. (Father), on
July 26, 2005. About a year later, on August 29, 2006, DFPS received a second
referral for physical abuse. DFPS sent the case to Family-Based Social Services
(FBSS) and Catholic Charities and DFPS offered services in an effort to keep the
family intact. DFPS was called again on March 20, 2007, May 31, 2008, and
October 20, 2008. These investigations were disposed of as either unable to
determine or ruled out. In June of 2008, Father was convicted of assaulting
Mother in May 2008.
By late 2008, Mother was living with F.B. (Boyfriend), who was twenty
years her senior. Boyfriend has a long criminal history, including three felony
convictions for burglary, one conviction for assault and bodily injury to a woman,
two convictions for carrying an unlawful weapon, and one felony conviction of
injury to a child. DFPS again visited Mother and the children on December 29,
2008. The DFPS worker noted that the children were not receiving appropriate
medical care. Medical records established that all three children had staph
infections, scabies, and boils. The DFPS worker also noted that Mother allowed
the children to play in the street unsupervised. The DFPS worker found reason
to believe that Mother was negligent in supervision, medical care, and physical
neglect.
2
DFPS opened an Intensive Family Based Social Services case in March
2009. Both Mother and Boyfriend failed to complete any of the services offered,
which included parenting classes, anger management, random drug testing, and
family counseling. Mother attended some counseling sessions, but stopped
because Boyfriend accused her of having an affair. Mother refused to allow the
children to attend daycare and refused to seriously address the cycle of violence
her children had been observing. DFPS workers observed Boyfriend verbally
abusing Mother in front of the workers and the children.
Mother and Boyfriend moved to a motel during the FBSS investigation.
They moved to four different motel rooms during the investigation, often not
telling investigators that they had moved. The motel room that the family was
living in was filthy. Boyfriend made the children sleep on the floor with dog feces
and urine. The FBSS worker, Jennifer Crawford, testified that she offered Mother
housing through DFPS but that Mother refused the housing because Boyfriend
would not be allowed to live with her because of his criminal background.
In October 2009, Crawford took Mother and the children to Wal-Mart to buy
the children some clothes. Mother had no car seats in the car, and the children
were standing up in the back seat. Mother was unable to control the children in
the store. Nicolas repeatedly ran away and hit Crawford. The store asked
Mother to leave because the children were so disruptive. Crawford tried to get
Nicolas evaluated at a psychiatric hospital, but Mother refused, explaining that
her pastor was going to ―pray the demon behavior out of him.‖
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On October 23, 2009, DFPS attempted a family team meeting with Mother,
Boyfriend, Father, and Mother’s sister. Boyfriend did not attend the meeting.
Mother refused to place the children with her. DFPS then went to the motel to
take possession of the children. A DFPS worker noticed spots on Sophia’s back,
which the worker realized were scabies. The children had scratched themselves
so severely that the wounds had become infected, and they had permanent
scars. The children were taken to the hospital, where it was also discovered that
they had lice. Once the children’s infections were treated multiple times, they
were put in foster care. When initially placed in foster care, Nicolas was
defecating in the closets, smearing feces on the walls, and urinating on the floor
―every other day.‖ Alexandra, who was two at the time of removal, would have
tantrums, use foul language, and show her middle finger. She would bang her
head and throw things, and if mad, urinate under her bed.
DFPS filed its petition for termination on October 26, 2009. A bench trial
was held on September 13 and 20, 2010. The trial court found by clear and
convincing evidence that Mother (1) knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered their physical or
emotional well-being, and (2) engaged in conduct or knowingly placed the
children with persons who engaged in conduct that endangered the children’s
physical or emotional well-being; and that termination of the parent-child
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relationship is in the children’s best interest.3 See Tex. Fam. Code Ann. §
161.001(1)(D), (E), (2) (Vernon Supp. 2010). The trial court appointed DFPS as
the permanent managing conservator of all three children. This appeal followed.
III. Sufficiency of the Evidence
Mother does not complain about the sufficiency of the evidence to support
the trial court’s findings that she violated subsections (D) and (E) of section
161.001(1). Instead, she limits her appeal to the sufficiency of the evidence to
support the trial court’s finding that termination of her parental rights is in
Nicolas’s, Sophia’s, and Alexandra’s best interests.
A. Standard of review
A parent’s rights to ―the companionship, care, custody, and management‖
of his or her children are constitutional interests ―far more precious than any
property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights
are of constitutional magnitude, they are not absolute. 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.‖ In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). In a termination case, the State seeks not just to limit parental rights
but to erase them permanently—to divest the parent and child of all legal rights,
3
The trial court’s order also terminated Father’s rights, but he did not
appeal the judgment.
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privileges, duties, and powers normally existing between them, except for the
child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex.
App.—Fort Worth 2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Termination decisions must be supported by clear
and convincing evidence. Tex. Fam. Code Ann. § 161.001; see id. § 161.206(a).
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 (Vernon 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 reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
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proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
reasonable factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But 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, 574. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
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) (Vernon 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;
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(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;
(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;
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(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
(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); 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: (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 individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest
of the child; (6) the plans for the child by these individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the acts
or omissions of the parent which 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).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of 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
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presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Termination was in the children’s best interests
Nicolas, Sophia, and Alexandra suffered severe psychological damage
from their time living with Mother. See Tex. Fam. Code Ann. § 263.307(b)(1),
(3)–(4), (6). Both Nicolas and Sophia have been diagnosed with Attention Deficit
Hyperactivity Disorder, and Sophia and Alexandra have been diagnosed with
Adjustment Disorder. Nicolas has also been diagnosed with Oppositional/Defiant
Disorder. The children have witnessed years of domestic violence and drug
abuse. See id. § 263.307(b)(7), (8). Nicolas was very aggressive, and he talked
about monsters living in his closet. Alexandra told the children’s counselor that
Boyfriend hit Mother, hit her, and then ―she began to hit herself in the face.‖
Sophia told the counselor that ―Grandpa‖ pulled Mother’s hair and that Sophia
cried behind the bed.
Although Mother testified that she was no longer with Boyfriend, there was
also testimony that Mother and Boyfriend had been seen together. A social
worker for Catholic Charities testified that ―all the indicators, all the traits‖ of
Boyfriend being a sociopath ―were there.‖ See id. § 263.307(b)(6). Boyfriend
was verbally and physically abusive to Mother, once injuring her so badly she
went to the hospital. See id. § 263.307(b)(7). Boyfriend had no regard for the
return of the children. He was verbally abusive to Mother in front of the children
on ―numerous‖ occasions. He used drugs in front of the children and told DFPS
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workers that he would smoke marijuana in front of the caseworkers and there is
nothing DFPS can do about it. See id. § 263.307(b)(8), (10)–(11). Nicolas had
―explicit knowledge‖ of marijuana including how to roll a marijuana cigarette.
Boyfriend refused to comply with any of the services offered to him. He made
appointments for counseling but never showed up or called to cancel.
Mother testified that she has part-time employment with Boyfriend’s former
employer. The case worker, Shawna Lewis, testified that Mother is not putting
the needs of her children first because she has not separated herself from the
people that Boyfriend associates with. There was much testimony that Mother
repeatedly refused to put her children’s needs before the needs and wants of
Boyfriend. Despite being told that she would not get her children back if she
continued to live with Boyfriend, by her own testimony she did not leave him for
another eight or nine months. See id. § 263.307(b)(11). She told DFPS workers
that there were no problems with her lifestyle and that even though she missed
her children, she ―regret[ted] nothing at all.‖ She told workers that she intended
to stay with Boyfriend, get married, and ―fix up a home.‖ See id. § 263.307(b)(12)
(C)–(E).
Mother did not meet the children’s basic health needs. See id.
§ 263.307(b)(12)(A). The children were living in a squalid motel room and were
forced to sleep on a floor covered with animal feces. They had scabies that had
been untreated for so long that the children suffered from infected sores and
permanent scarring. They had staph infections, lice, and boils.
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Nicolas needs a number of daily medications, and Mother testified that she
would make sure he got them. But the children had suffered from diseases
before that had gone untreated. Their scabies had gone untreated and led to
permanent scarring. They also had no medical attention for their staph
infections, which resulted from their unclean conditions. Mother had also
previously refused to have Nicolas evaluated at a psychiatric hospital because a
pastor ―was going to pray the demon behavior out of him.‖ The trial court could
have believed that, based on her past failures to give her children medicine,
Mother would not be able to provide Nicolas with his daily medications. See id.
§ 63.307(b)(12)(A), (F).
Mother did not know how or refused to discipline her children. See id.
§ 263.307(b)(12)(B). She ―does not believe in disciplining her children‖ and
stated to her doctor, ―Discipline and rules are not me.‖ Crawford witnessed such
misbehavior at Wal-Mart that the store asked them to leave, and a DFPS worker
stated that Mother ―acts like she doesn’t know how to raise children.‖ During
visitation, Mother did not ―redirect‖ the children’s bad behavior. Lewis explained,
―She would attempt one time to tell the children what to do, and then they would
continue and she would continue on and forget about it and let them do what
they wanted.‖ She appeared unable to handle them when they acted out.
Mother testified that she is now living in a stable home with Boyfriend’s
sister Leticia. She testified that Leticia and Boyfriend do not get along and that
Boyfriend is not allowed at Leticia’s house. The DFPS conservatorship (CVS)
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worker testified that Leticia’s home was ―not appropriate‖ for the children and that
Leticia has a history with CPS. She testified that it was ―absolutely not‖ in the
children’s best interest to be taken out of foster care and put in Leticia’s home.
Mother has not shown that she wants or is able to protect the children from
her violent boyfriends. See id. § 263.307(b)(4), (9)–(11), (12)(C)-(E). Mother
admitted that she consciously made the decision not to go to a women’s shelter
to escape Boyfriend’s abusive behavior. She testified this was because she
heard that her children would be taken away from her if she moved to a shelter.
Instead, she chose to keep the children in squalid conditions with an abusive
mate. See In re J.R., 991 S.W.2d 318, 322 (Tex. App.—Fort Worth 1999, no
pet.) (noting evidence of abuse and neglect included children's exposure to
domestic violence). She testified that it ―hit her‖ that she needed to leave the
abusive relationship right after her children were removed and that the domestic
violence counseling she received helped her, yet she stayed with Boyfriend for
another eight or nine months. Although she testified that she did apply for
housing through DFPS but never received a housing voucher, there was much
testimony that Mother had stated that she would not leave Boyfriend.
She claimed that she did not complete her domestic violence counseling
because she did not have transportation but that she did have transportation now
through Leticia. However, there was no evidence that she had made any attempt
to re-engage in counseling since moving in with Leticia. Constance Burdick, the
social worker with Catholic Charities, testified that it takes ―a lot of work‖ and
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―many years‖ of counseling for battered women to deal with their issues. She
believed the ―damage done to [Mother]’s emotional well-being is extensive.‖
Mother was supposed to have twelve counseling sessions with Burdick but only
went to six. Burdick believed that more sessions would be necessary for Mother
to deal with her abuse. As of March 2010 (the last time Burdick saw Mother and
six months before trial), Burdick did not believe Mother was capable of
rehabilitation. She testified that because of the state Mother was in at the time
she stopped coming to therapy, it was ―absolutely not safe‖ for the children to be
returned to her.
Mother does not have an adequate social support system. See Tex. Fam.
Code Ann. § 263.307(b)(13). Mother told her doctor that her family had
―disowned‖ her because she would not reconcile with Father. At one time,
Mother’s sister had offered to take the children, but Mother refused to make the
decision to place her children with her sister. The sister subsequently became
pregnant and felt that she could not then take the children. Mother receives a lot
of emotional support from Leticia, but as stated above, CPS feels that Leticia’s
home is not appropriate for the children. While Mother may not currently have a
boyfriend, Mother relies greatly on men to support her, and she has a long
history of being with violent partners. The doctor who performed Mother’s
psychological evaluation described her as immature with issues about
relationships and dependency on others. See id. § 263.307(b)(6). He stated that
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Mother ―has poor insight into her children’s developmental, emotional and
behavioral needs.‖ See id. § 263.307(b)(12)(F).
Mother failed to meet practically every goal that DFPS set for her. See id.
§ 263.307(b)(10), (11). She was set up with counseling at a women’s shelter, but
she did not go. She was set up with parenting classes, which she did not attend.
She did not go to her Counseling Addiction Treatment Services assessment or
two of the four court-ordered drug tests. Of the two drug tests she did complete,
she tested positive for marijuana both times. She stopped going to counseling
because Boyfriend accused her of having an affair. Mother did complete her
Homemaker Services and attended ―just about‖ every visitation with her children.
However, she did not meet her goals of showing her ability to parent and protect
the children, maintaining a drug-free and sober lifestyle, attaining a domestic-
violence-free environment, or demonstrating her ability to provide basic
necessities for the children. See In re S.B., 207 S.W.3d 877, 887–88 (Tex.
App.—Fort Worth 2006, no pet.) (holding that evidence of a parent's failure to
comply with her family service plan supports a finding that termination is in the
best interest of the child).
While Mother argues that she changed a lot in the months leading up to
trial, she has exhibited years of damaging behavior and has not completed any
treatment to supply her with the tools to care for herself or her children. The trial
court could believe that there was a serious concern that Mother would fall victim
to another abusive relationship and expose the children to more violence. See In
15
re J.D.B., No. 02-06-00451-CV, 2007 WL 2216612, at *3 (Tex. App.—Fort Worth
Aug. 2, 2007, no pet.) (mem. op.) (noting that a factfinder may infer that past
conduct endangering the well-being of a child may recur in the future if the child
is returned to the parent); In re C.S.C., No. 02-06-00254-CV, 2006 WL 3438185,
at *7 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem. op.) (same).
The children had been in foster care for over a year at the time of trial.
See Tex. Fam. Code Ann. § 263.307(b)(2). They have been with the same foster
family since December 2009. The children regressed when they were first
placed, but they have improved since. The foster parents provide a structured
environment, and they are capable of providing the care and services the
children need, including their basic needs and their emotional and mental needs.
The foster parents have agreed to foster them until they are adopted.
Many of the children’s behavioral issues have improved since living in foster
care. Before his foster parents put him on medication, Nicolas would defecate in
the closet, smear feces on walls, and urinate on the floor ―every other day.‖ The
CVS worker testified that he is a ―different child since they put him on
medication.‖ Now he is compliant and listens to his foster parents. When first
placed in foster care, Alexandra would ―flip you off,‖ use profanity, throw
tantrums, bang her head on the walls, and urinate and defecate on the floor. She
is no longer urinating on the floor and her tantrums are not as long. Sophia was
very anxious but now has a lot more tolerance for difficulty. Because they have
16
improved so much since being in foster care, Lewis believes all of the children
are adoptable.
Giving due consideration to evidence that the trial court could have found
to be clear and convincing, and based on our review of the entire record, we hold
that a reasonable trier of fact could have formed a firm belief or conviction that
the termination of Mother’s parental rights would be in the children’s best
interests. Accordingly, we hold that there was sufficient evidence to support the
trial court’s best-interest finding. We overrule Mother’s issue.
IV. Conclusion
Having overruled Mother’s sole issue, we affirm the trial court’s judgment.
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL JJ.
DELIVERED: May 12, 2011
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