J. T. and P. T. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00286-CV
J. T. and P. T., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 19157, HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants J.T. (Father) and P.T. (Mother) appeal from the trial court’s order
terminating their parental rights to their minor children, C.T.1, C.T.2, J.T.1, J.T.2, and K.T.1
Father and Mother argue that the trial court abused its discretion by admitting hearsay evidence
of the children’s reports to the court. They also contend that the evidence is legally and factually
insufficient to support the termination of their parental rights. We will affirm the trial court’s order
terminating their parental rights.
1
To protect the privacy of the parties, we refer to the children, their parents, and other family
members by their initials or by their relationship to the children. See Tex. Fam. Code § 109.002(d).
BACKGROUND2
The Texas Department of Family and Protective Services (the Department) received
its first referral concerning Father and Mother in 2004, and the Department had multiple interactions
with this family in the following years. In March 2014, Father and Mother were arrested for drug
possession. The children were then removed from their parents’ care and were placed with Father’s
parents, M.T. (Grandfather) and P.T.2 (Grandmother). The Department also brought this suit seeking
managing conservatorship of the children and termination of Father’s and Mother’s parental rights.
In June 2014, the children were removed from their grandparents and placed in foster homes because
of concerns that Grandmother was unable to care for them and was using marihuana.
The case was tried to a jury, and the jury found that Father and Mother each engaged
in conduct satisfying the statutory grounds for termination listed in subsections (D), (E), (N), (O),
and (P) of Texas Family Code section 161.001(1). See Tex. Fam. Code § 161.001(1).3 The jury also
found that it was in the children’s best interest for Father’s and Mother’s parental rights to be
terminated and that the Department should be named managing conservator of each child. See id.
2
The facts recited in this opinion are taken from testimony and exhibits admitted at trial.
Although we have considered the entire record, because this is a memorandum opinion affirming the
trial court’s termination order, we do not exhaustively detail the evidence. See Tex. R. App. P. 47.4
(“If the issues are settled, the court should write a brief memorandum opinion no longer than
necessary to advise the parties of the court’s decision and the basic reasons for it.”); In re A.B., 437
S.W.3d 498, 507 (Tex. 2014) (holding courts of appeals need not detail the evidence when affirming
jury’s termination findings).
3
After this case was filed in the trial court, the Legislature amended section 161.001 by
adding subsection (a). See Act of Apr. 7, 2011, 82d Leg., R.S., ch. 1, § 4.02, 2011 Tex. Gen. Laws 1,
9–11 (amended 2015) (current version at Tex. Fam. Code § 161.001(b)(1)). Section 161.001(1) was
therefore renumbered as section 161.001(b)(1). This amendment does not affect our analysis, and
we use the previous numbering throughout our opinion.
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§ 161.001(2). The trial court signed an order terminating Father’s and Mother’s parental rights,
and this appeal followed.
DISCUSSION
To terminate the parent-child relationship, a court must find by clear and convincing
evidence that: (1) the parent has committed one of the enumerated statutory grounds for termination
and (2) it is in the child’s best interest to terminate the parent’s rights. Id. § 161.001. The parents
contend that the evidence is legally and factually insufficient to support the termination of their
parental rights. “The distinction between legal and factual sufficiency when the burden of proof
is clear and convincing evidence may be a fine one in some cases, but there is a distinction in
how the evidence is reviewed.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing
the legal sufficiency of the evidence in a parental-termination case, we consider all the evidence in
the light most favorable to the finding and determine whether a reasonable fact-finder could have
formed a firm belief or conviction that its finding was true. See id. When reviewing the factual
sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether a
reasonable fact-finder could form a firm belief or conviction that a given finding was true. In re C.H.,
89 S.W.3d 17, 18–19 (Tex. 2002). We assume that the jury resolved disputed facts in favor of its
finding if a reasonable person could do so, and we disregard evidence that a reasonable fact-finder
could have disbelieved or found incredible. J.F.C., 96 S.W.3d at 266. Evidence is factually
insufficient only if a reasonable fact-finder could not have resolved the disputed evidence in favor
of its finding and if that disputed evidence is so significant that the jury could not reasonably have
formed a firm belief or conviction that its finding was true. Id.
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The parents’ brief, liberally construed, challenges the sufficiency of the evidence
supporting the jury’s findings that Father and Mother engaged in conduct satisfying the statutory
grounds for termination found in section 161.001(1)(D) and (E)—that is, that Father and Mother
knowingly placed or allowed the children to remain in conditions or surroundings which endangered
the children or knowingly placed the children with persons who engaged in conduct which endangered
the children. However, their brief does not challenge the jury’s findings that Father and Mother
engaged in conduct satisfying the statutory grounds found in subsection (N), (O), or (P). Father and
Mother have therefore waived any challenge they may have to the jury’s findings under those
subsections. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“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.”); Gamez v. Texas Dep’t of Family & Protective Servs.,
No. 03-09-00190-CV, 2009 WL 4456150, at *7 n.8 (Tex. App.—Austin Dec. 1, 2009, no pet.)
(mem. op.) (“[T]he unchallenged finding concerning subsection (O) alone is sufficient to support the
district court’s order terminating Gamez’s parental rights.”); Toliver v. Texas Dep’t of Family &
Protective Servs., 217 S.W.3d 85, 102 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“Holloway
does not challenge the sufficiency of the evidence supporting the findings under [subsections (F),
(N), and (O)], and thus he waives any complaint about the sufficiency of the evidence to support
these findings.”). Because each of the unchallenged findings is sufficient to support the trial court’s
order, we will proceed to consider the parents’ argument that the evidence is insufficient to support
the jury’s finding that the termination of their parental rights is in the children’s best interest.
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In a parental-rights-termination case, the best interest of the child is assessed using
a non-exhaustive list of factors. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). These
factors include (1) the child’s wishes, (2) the child’s emotional and physical needs now and in the
future, (3) emotional or physical danger to the child now and in the future, (4) the parenting abilities
of the parties seeking custody, (5) programs available to help those parties, (6) plans for the child
by the parties seeking custody, (7) the stability of the proposed placement, (8) the acts or omissions
of the parent which indicate that the existing parent-child relationship is not proper, and (9) any
excuses for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). The Department need not prove all nine Holley factors as a “condition precedent” to
termination, and the absence of some factors does not bar the fact-finder from finding that
termination is in the child’s best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling,
the presence of a single factor may be adequate in a particular situation to support a finding that
termination is in the child’s best interest. In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001,
no pet.), disapproved of on other grounds by J.F.C., 96 S.W.3d at 267 n.39.
We conclude that the Holley factors weigh heavily in favor of a determination that
it is in the children’s best interest for their parents’ rights to be terminated. Both Father and Mother
admitted at trial to extensive histories of drug abuse. Mother testified that she used marihuana before
and after meeting Father. Mother also testified that they started using cocaine about a year after
C.T.1 was born and that she believed she was “on methamphetamines” in 2007. Mother further
testified that she could not be specific about “timelines” because her memory had been impaired by
her drug use. In addition, Mother testified that Father “was really bad on prescription pills at one
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point in time” and stated, “We were all scared we were going to lose him at the time he was taking
prescription drugs . . . .” In her testimony, Mother also described the circumstances surrounding
Father’s arrest for manufacture and delivery of a controlled substance. Finally, Mother admitted to
being an alcoholic.
Father testified that he had used marihuana and cocaine. He also testified that he
began using methamphetamines around 2005. Father further testified that he joined the military to
“get [him] and his family away from the drugs” in 2007. In addition, a deputy with the Lampasas
County Sheriff’s Department testified that in March 2014 he found Father and Mother standing near
a parked vehicle containing pills, a syringe, and a marihuana “roach.” The deputy went on to testify
that he arrested Father and Mother for possession of marihuana and that a glass pipe containing
crystal methamphetamine was later discovered in the vehicle.
The jury also heard testimony concerning violence between Mother and Father
and between Mother and Grandmother. For example, Mother testified that she had “always been
that fighting type since [she] was young” and that she had been arrested when she “slapped
[Grandmother] in the back of the head while she was drunk.” Mother also testified, “I really didn’t
go to the cops because a lot of the time I would initiate the fight, and I was either intoxicated
or I wasn’t in my right mind.” In addition, Mother stated, “If it wasn’t for [Grandmother] and
[Grandfather], there ain’t no telling where our kids would be because of mine and [Father’s]
addictions and our fights and stuff.” Indeed, Mother was incarcerated for arson at the time of trial
because, as Mother testified, “I blew up [Father’s] car.”
The Department also presented evidence that the children were exposed to drug use
and violence while residing with their parents and grandparents. Grandmother testified that she
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uses marihuana, and Grandfather testified that, until this case began, he was not aware that
Grandmother uses marihuana. Donna Lilley, a foster parent with whom some of the children had
been placed, testified that the children in her care had told her about various instances in which their
parents used drugs. According to Lilley, C.T.1 said that there were syringes in their parents’ room
and that he once had to prevent K.T. from poking herself with one of them. Lilley also testified that
the children “told us numerous times they would be out with Mom and Dad and they would go
over to a drug dealer’s house to buy drugs.”
In addition, Lilley testified that the children “all indicated they had bruises” from
being hit or beaten. Lilley also testified that C.T.1 had “severely impacted bowels” when he arrived
at her home and that C.T.1 had explained to her that “he was holding it intentionally because he
didn’t want to go out into the other rooms of the house and hear the fighting that was going on.”
According to Lilley, C.T.1 had told her that there “would be fighting with the adults towards the
children, but that also could be fighting among the adults themselves.” Specifically, C.T.1 had told
her about an incident in which “Grandma [was] fighting with Mom, and that Mom was thrown on
the floor. Grandma was on top of her, hitting her.”
The Department also presented evidence that the children had been exposed to
pornography and sexual activity. Deborah Hernandez, a caseworker from the Department, testified
that “[a]ll four of the girls have had sexual-acting-out issues.” According to Hernandez, “all four
of the girls would masturbate in front of other people” and “just really didn’t have any boundaries.”
In addition, Juanita Hamilton, a conservatorship worker with the Department, testified that the
children made comments to her “about porn and watching their parents have sex.” Hamilton testified
that J.T.1 had “talked about watching porn” and had explained that “there used to be a hole in the
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wall and they could see their parents having sex.” Hamilton also testified that C.T.2 had stated that
“they would look under the door” and watch their parents having sex.
Morever, the jury heard testimony from the Court Appointed Special Advocate
(CASA) worker Paula McGregor. McGregor testified that J.T.1, who, the record indicates, was eight
years old at the time of trial, knew what a condom was and what it was used for. McGregor further
testified that when she asked J.T.1 how she knew about condoms, J.T.1 had told her “that she had
seen her dad put one on when him and her mom was having sex, and she later asked him what it was
for and he told her.”
Finally, Lilley testified that both C.T.2 and J.T.1 told her that they had been able to
watch pornography and that C.T.2 used Lilley’s husband’s phone to access pornography on the
internet shortly after the children arrived at Lilley’s home. Lilley also testified that J.T.1 “almost
immediately started acting out sexually” when she arrived in the foster home. According to Lilley,
J.T.1 had to be removed from their home after she asked if she could perform oral sex on Lilley’s
husband, watch while Lilley did so, or watch while Lilley and her husband had sex.
We have not attempted to reproduce all of the evidence from the record supporting
the jury’s best-interest finding. See supra n.2. We conclude, in light of the evidence summarized
above, that a reasonable fact-finder could have formed a firm belief or conviction that this finding
was true, that a reasonable fact-finder could have resolved disputed evidence in favor of its finding,
and that disputed evidence is not so significant that the jury could not reasonably have formed a firm
belief or conviction that its finding was true. Therefore, we conclude that the evidence was legally
and factually sufficient to support the jury’s finding that the termination of Father’s and Mother’s
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parental rights is in the children’s best interest. Accordingly, we overrule Father’s and Mother’s
second issue.4
CONCLUSION
Having overruled each of Father’s and Mother’s issues, we affirm the order of the
trial court terminating their parental rights.
4
In their first issue, Father and Mother contend that the trial court abused its discretion by
admitting into evidence three child statements, each of which was labeled “Child’s Report to the
Court.” However, because we conclude that the evidence was legally and factually sufficient to
support the trial court’s termination order without considering these statements, any error the trial
court may have committed in admitting the statements was harmless. See United States Fid. &
Guar. Co. v. Slaughter, 836 S.W.2d 745, 749 (Tex. App.—El Paso 1992, no writ) (“Because there
was sufficient independent evidence to support the judgment without considering the disputed
statement, however, any error in its admission was harmless.”).
In addition, although the parents argue that the admission of these statements
violated their Sixth-Amendment confrontation-clause rights, the Sixth Amendment applies only to
“criminal prosecutions,” see U.S. Const. Amend. VI, and therefore does not apply to parental-
rights-termination cases, which are civil proceedings. See In re S.A.G., 403 S.W.3d 907, 912 (Tex.
App.—Texarkana 2013, pet. denied) (stating that there is no confrontation right in civil proceeding);
Alvarez v. Texas Dep’t of Protective & Regulatory Servs., No. 03-02-00008-CV, 2002 WL 31599225,
at *2 (Tex. App.—Austin Nov. 21, 2002, no pet.) (mem. op., not designated for publication)
(explaining that Department’s interview of child at school did not violate appellant’s confrontation-
clause rights because case was “a proceeding to terminate his parental rights; it [was] not a juvenile
proceeding against his daughter with Fourth Amendment protections for her, nor [was] it a criminal
proceeding against him”); In re C.W., 65 S.W.3d 353, 354 (Tex. App.—Beaumont 2001, no pet.)
(“[W]e note that the termination hearing in question was a civil proceeding. As such, appellant had
no constitutional right to confront witnesses. The right to confront witnesses applies to criminal
proceedings only.”), disapproved of on other grounds by In re Z.L.T., 124 S.W.3d 163 (Tex. 2003);
In Interest of R.V., Jr., 977 S.W.2d 777, 781 (Tex. App.—Fort Worth 1998, no pet.) (“A suit to
terminate parental rights is a civil proceeding.”); Ochs v. Martinez, 789 S.W.2d 949, 951 (Tex.
App.—San Antonio 1990, writ denied) (“The [Sixth Amendment] applies by its own terms only to
‘all criminal prosecutions’ and therefore is inapplicable in civil cases.”).
Accordingly, we overrule Father’s and Mother’s first issue.
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__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Pemberton and Field
Affirmed
Filed: October 23, 2015
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