G.L.C. and R.R. v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: March 1, 2012
• Docket: 01-11-00387-CV
• Status: Published

Opinion

Opinion issued March 1, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-11-00387-CV

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In re DC, KR, CR, RR, JC, MR, and JR

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Case No. 09CP0047

MEMORANDUM OPINION

          After the mother voluntarily terminated her parental rights to her eight children, the trial court entered an order involuntarily terminating the parental rights of the children’s fathers.  In this appeal, we consider (1) whether one of the fathers was properly served with citation before the trial, and (2) whether there was legally and factually sufficient evidence (a) to terminate the fathers’ parental rights under section 161.001 of the Texas Family Code, and (b) whether such termination was in the best interest of the children.  We affirm.

BACKGROUND

          Lauren[1] is the mother of eight children.  Her eldest son, Derek, was born when she was a juvenile living with her parents in Florida.  Derek’s father is deceased, thus, Derek is not involved in this appeal. 

While she was living with her parents, Lauren had a relationship with Gary, and in 1997, she gave birth to Darren, Gary’s son.  Darren tested positive for cocaine at birth, and HRS, the Florida equivalent of the Department of Family and Protective Services [“DFPS or the Department”] became involved. Gary has never sought custody, provided support, or been involved with raising Darren at all.  Lauren testified that Gary was abusive, that he had been convicted of committing a lewd, lascivious, or indecent act on a child, his younger cousin, and that he had been sentenced to 6 years’ confinement and required to register as a sex offender.  The record also shows a 2009 conviction for possession of cocaine.

Lauren soon became involved with Raymond, and in 1999, gave birth to his daughter, Kasey. When Kasey was born, Lauren was in rehab, so Kasey was in a foster home for four months.  When Kasey was returned to Lauren, Raymond supported them financially and was involved in their lives. In 2000, Lauren and Raymond had a second daughter, Caitlyn.  Lauren and Raymond were married in April 2001. 

In 2002, Lauren and Raymond had a son, Raymond, Jr.  Lauren testified that Raymond began physically abusing her when Kasey was born, and that at some point she got tired of it and moved back in with her mother.  During this time period, Lauren reconciled with Gary for a brief time, and soon thereafter gave birth to Gary’s second son, Jason, in 2005.  Again, Gary has neither provided support nor maintained any contact with either of his sons beyond asking how they were doing whenever he happened to see Lauren.

The reconciliation with Gary did not last long, and Lauren soon returned to Raymond.  In 2007, Lauren and Raymond had another daughter, Mary.

The record shows that Raymond had multiple convictions in Florida for domestic violence assault and domestic violence battery.  Also, Lauren had petitioned for and received a protective order from a Florida court.  Lauren testified that Raymond had broken her wrist, stabbed her with a screwdriver, and beaten her repeatedly.  She had also seen him hit Darren in the head with a broomstick, and several staples were required to close the wound.  Raymond often told Lauren that if she left him, he would kill her and her children.

Lauren testified that Raymond’s abuse finally stopped when he was deported to Honduras.  Before he was deported, Raymond told Lauren to take the kids and go to Texas and he would come there as well.  Raymond also told Lauren to contact his aunt, Aurelia, who lived in Texas.  Lauren called Aurelia, who met them at the bus stop.  However, when Aurelia realized that there were seven children, three of whom did not belong to Raymond, she told Lauren that she could not move in with her.

Lauren then stayed with the children at the Star of Hope Mission in Houston for four months, before moving to Galveston in the spring of 2008 to look for work.  While in Galveston, Lauren and the children stayed at a shelter, where they met Ms. Goins, a vice-principal at the local high school who volunteered at the shelter at night.  During that time, Ms. Goins would help Lauren, who was pregnant, by taking some of the children with her on occasion.  Lauren also let Ms. Goins’ adult daughter, Dana, take Jason to live with her because Jason, who was 18-months-old at the time, was being physically abused by his older siblings.

Lauren gave birth to her fifth child with Raymond, James, in August 2008, and two weeks later Hurricane Ike hit the island.  Ms. Goins took the children, including the two-week-old infant, home with her and they rode out the storm in her home.  Lauren was not with them because she had been flown by Life Flight to Austin because of post-partum hemorrhaging.

Soon, Ms. Goins and the children were able to evacuate to Ms. Goins’ sister’s house in LaMarque, where they stayed for two and a half weeks.  Ms. Goins eventually called the Department because she was not able to keep the children, as she too had been left homeless by the storm.

The children were split up and went to several different foster homes, before being reunited with Lauren in Galveston in January 2009.  Ms. Goins and her daughter, Dana, continued to visit the children while they were in foster care.

Lauren eventually received money from DEHAB, an organization that helped those displaced by the hurricane.  She sent $1500 of this money to Raymond in Honduras because he said that he was going to come join them, despite the fact that he had been deported.  Lauren testified that, all together, she had sent Raymond approximately $3000.  Raymond knew that his children had been living in shelters, but he never sent any money to Lauren to help support his family. 

Lauren and the children were first given an apartment in the Victorian condos, but they were soon evicted because Lauren ran up a $1000 phone bill calling Honduras and her oldest son, Derek, punched holes in the walls.  Ms. Goins then went to DEHAB and helped Lauren to get a placement in a five bedroom historic Victorian house.  The Department bought the family air mattresses, but Lauren rented out the extra rooms and air mattresses to vagrants and made the children sleep together in an unair-conditioned, unfurnished room.

The Department became involved with the children at this point because 7-year-old Jason was discovered wandering around at a local restaurant alone, looking for his mother.  As a result of the Department’s investigation, a safety plan was put into place that prevented Lauren’s newest boyfriend, Carlos, from having any contact with her. Carlos was abusive, he drank and used drugs, and there were allegations that he was teaching the children how to steal.  Lauren was caught deliberately violating the safety plan, and the Department took custody of the children.

At the time of trial, Lauren’s oldest son, Derek, had been placed in a group home and was doing well.  Darren, was in a foster home, which he liked.  However, Darren has issues with acting out sexually with younger children and would likely be removed from this placement.  He did not want to be placed with relatives in Florida.  The three girls, Kasey, Caitlyn, and Mary, had been placed with Ms. Goins.  They were doing well in school and had perfect attendance.  Ms. Goins testified that she would like to adopt all three girls if possible.  Raymond, Jr. was initially placed in Florida with his grandfather, along with Derek and Darren.  When Derek and Darren were returned to Texas because their grandfather was unable to control them, Raymond Jr. remained in Florida with his grandfather.  When the grandfather died, Raymond Jr. was placed with a relative of his grandfather, and he has done well in that placement.  Jason has been placed with Ms. Goins’ daughter, Dana, with whom he had lived for several years, even before CPS became involved.  Dana testified that Jason is doing well and that she would like to adopt him if possible.  The infant, James, was initially placed in a foster home, in which he seemed very non-responsive.  He has, however, been moved to a new foster home and is doing much better.  When his family last visited he was active, responsive, and showed much improvement.

RETURN OF SERVICE

          In his first issue on appeal, Raymond contends the trial court “erred in allowing [DFPS] to proceed with the case . . . when at the time the case was called for trial on December 10, 2010 . . . there was no evidence in the court’s file that proper service had been effected upon [him].” Specifically, Raymond argues that on the date the case was called for trial, the return of service on file with the court had not been translated from Spanish to English and did not comply with Tex. R. Civ. P. 105[2] because it shows that the process server both received and delivered the citation at the same time—a physical impossibility.  DFPS responds that the return of service was properly amended before judgment.

Relevant Facts

          This suit was filed on June 22, 2009.  The Department sought custody and identified Raymond as the father of several of the children.  In the petition, Raymond’s address was listed as “unknown.”  An order for protection of a child in an emergency was signed that same day.  The order assigned Raymond appointed counsel, Christine Mangle, who appeared on Raymond’s behalf during the pretrial proceedings. At a Permanency hearing on April 13, 2010, the Court noted that Raymond “is in Honduras and is not served.”

          On November 3, 2010, a faxed copy of return of service was filed in the trial court.  The return was in Spanish, and it showed that the process server had served Raymond in Honduras.  The return, however, was defective, in that it showed that the process server, a Honduran attorney, had both received and delivered the legal documents on October 8, 2011 at 7 a.m.

          On December 3, 2010, the original of the above-described faxed return of service was filed in the trial court.  The document was still in Spanish, and the return and delivery times were still the same.

          On December 6, 2010, at a pretrial conference, Raymond’s counsel pointed out to the trial court that the court records did not conclusively establish service upon Raymond in Honduras.  Counsel argued that to be admissible under Texas Rule of Evidence 1009, foreign language documents had to be translated into English, be accompanied by an affidavit from a qualified translator, and be served upon all parties 45 days prior to trial.  The trial court initially agreed, sustained counsel’s objection, and ruled that DFPS could not proceed with the termination suit against Raymond.

          DFPS filed a motion to reconsider, citing to the trial court cases that permit defective returns of service to be freely amended anytime before judgment.  The trial court granted DFPS’s motion to reconsider, stating, “I’m going to grant the motion to amend and order Ms. Gilmore to amend in due haste.”

          The trial commenced on December 10, 2010, and resumed, then concluded on January 18, 2011.  On that same day, the trial court entered an order granting permission for DFPS to amend and correct the return of service on Raymond.

          On February 18, 2011, an amended return of service was filed.  The amended service corrected the deficiencies complained of in the earlier return of service.  Specifically, the return of service had been translated into English and was accompanied by an affidavit from the qualified translator.  The amended return also showed that the process server had received the legal documents on October 6, 2010, at 2 p.m. and served them on Raymond on October 8, 2010 at 7 a.m.  The return of service by Leobildo Cabrera was sworn to before a notary public, Mario Melgar Portillo.

          The trial court’s final judgment terminating Raymond’s parental rights was signed on April 26, 2011.

Amendment of Citation

      Texas procedural law and constitutional due process require that a defendant be served, waive service, or voluntarily appear before judgment may be rendered. See Tex. R. Civ. P. 124; Peralta v. Heights Med. Ctr., Inc, 485 U.S. 80, 84–87, 108 S. Ct. 896, 898–900 (1988); Kao Holdings, L.P. v. Young, 261 S.W.3d 60, 61–62 (Tex. 2008). “A trial court has ‘no more solemn judicial obligation than that of seeing that no litigant is unjustly saddled with a judgment in the absence of notice and a hearing.’”Marrot Commc’ns, Inc. v. Town & Country P’ship, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (quoting Finlay v. Jones, 435 S.W.2d 136, 138–39 (Tex. 1968)).

“[I]n order for a default judgment to be properly rendered, the record must affirmatively show, at the time the default judgment is entered, either an appearance by the defendant, proper service of citation on the defendant, or a written memorandum of waiver.” Id. at 378; see also Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991). “Actual notice to a defendant, without proper service, is not sufficient to convey upon the court jurisdiction to render default judgment against him.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).

There are no presumptions in favor of valid issuance, service, and return of citation in an attack on a default judgment on direct appeal. See Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884, 885 (Tex. 1985). “Strict compliance with the Rules of Civil Procedure relating to the issuance of citation, the manner and mode of service, and the return of process is necessary to sustain a default judgment . . . .” Laidlaw Waste Sys., Inc. v. Wallace, 944 S.W.2d 72, 73–74 (Tex. App.—Waco 1997, writ denied) (citing Primate Constr., 884 S.W.2d 151, 152 (Tex. 1994); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Armstrong v. Minshew, 768 S.W.2d 883, 884 (Tex. App.—Dallas 1989, no writ)).  In this case, Raymond challenges the sufficiency of the return of process.

Rule 108a, which governs service of process in foreign countries, provides that “[p]roof of service may be made as prescribed by the law of the foreign country, by order of the court, by Rule 107, or by a method provided in any applicable treaty or convention.” Tex. R. Civ. P. 108a. Rule 107 provides, in pertinent part, “The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person.” Tex. R. Civ. P. 107.  “The return of citation by an authorized person shall be verified.”  Id.  Additionally, “[t]he officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it[.]” Tex. R. Civ. P. 105.

          Here, the issue is whether the proof of service, i.e., the return, complied with Rules 105 and 107, and, if it did not, whether the trial court properly allowed it to be amended.  Raymond argues that the return shows either that it did not comply with Rule 107 because it did not properly state when the citation was served, or it did not comply with Rule 105 because it did not properly state when it was received.  Because the return shows the same day and time for both receipt and service, Raymond contends one must be wrong, thus invalidating the return.

          DFPS argues that even if the November 3, 2010 return of service was defective, it was corrected when the trial court permitted DFPS to amend the return.  We agree.

Rule 118 of the Texas Rules of Civil Procedure provides:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Tex. R. Civ. P. 118 (emphasis added).

Rule 118 of the Texas Rules of Civil Procedure provides for the amendment of the return to show the true facts of service. Primate Constr. Co., 884 S.W.2d at 153; Higginbotham v. General Life & Acc. Ins. Co., 796 S.W.2d 695, 696–97 (Tex. 1990); London v. Chandler, 406 S.W.2d 203, 204 (Tex. 1966). If the facts recited in the officer’s return, pre-printed or otherwise, are incorrect and do not reflect proper service, then the plaintiff should move to amend the return. Primate Constr. Co., 884 S.W.2d at 153.  The Texas Supreme Court has even held that the trial court may enter a postjudgment order granting amendment of a return of citation pursuant to rule 118 during its plenary power. Higginbotham, 796 S.W.2d at 696–97.

          Here, the return was amended prior to the entry of judgment, and there is no requirement that it be amended before proceeding to trial.  The amended return corrects the problems with Rule 105 and 107 by clarifying that the process server received the document on October 6, 2010, at 2 p.m. and served it on Raymond on October 8, 2010 at 7 a.m.

          Raymond, however, also complains that the initial return was in Spanish, and because it was not translated into English until after trial, it violated Rule of Evidence 1009, which requires that all foreign documents to be admitted at trial must be translated 45 days before trial and be accompanied by an affidavit from a qualified translator. Tex. R. Evid. 1009(a)

          However, rule 1009 is a rule of evidence governing the admission of foreign documents of trial.  Raymond has cited no cases in which rule 1009 requires the translation of foreign returns of service into English, or that such a translation could not be done in an amended return while the trial court still had plenary power.  We have found no authority holding that rule 1009 trumps rule 118, which permits amended returns of service “[a]t any time.” Tex. R. Civ. P. 118.

          Further, we note that, even if applicable, rule 1009 provides that “[t]he court, upon motion of any party and for good cause shown, may enlarge or shorten the time limits set forth in this Rule.” Tex. R. Evid. 1009(f).

          Because the amended return, which was filed after trial but before judgment, corrected the only defects of which Raymond complained, we conclude that the trial court had jurisdiction to enter judgment against Raymond because he had been personally served.

          We overrule Raymond’s first issue on appeal.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT TERMINATION

          In their remaining issues on appeal, Raymond and Gary contend there was legally and factually insufficient evidence to terminate their parental rights under section 161.001 of the Texas Family Code, or that such terminations would be in the best interest of the children.  Tex. Fam. Code Ann. § 161.001 (Vernon 2011).

Standard of Review

A parent’s right to “the companionship, care, custody, and management” of his children is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal citation omitted). The United States Supreme Court has emphasized that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has also concluded that “[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1976)). Consequently, termination proceedings should be strictly scrutinized. Id.

Because termination “is complete, final, irrevocable, and divests for all time that natural right . . . , the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights.” Id. (citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92; Richardson v. Green, 677 S.W.2d 497, 500 (Tex. 1984)). 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 truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon  2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is “clear and convincing,” the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264–66.

In conducting a legal-sufficiency review in a parental-rights termination case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. See id. at 266. In viewing the evidence in the light most favorable to the finding, we “must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so,” and we “should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266).

In conducting a factual-sufficiency review in a termination-of-parental-rights case, we must determine whether, considering the entire record, including both evidence supporting and evidence contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which the State bore the burden of proof.  In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the 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 fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

In proceedings to terminate the parent-child relationship brought under section 161.001, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under subsection (1) of section 161.001 and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2011). Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). “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).

Endangerment

In Raymond’s second issue and Gary’s second and third issues, appellants argue that the evidence is legally and factually insufficient to support termination of their parental rights under Texas Family Code sections 161.001(1)(D) and (E).

A trial court only needs to make one finding of parental misconduct under section 161.001(1) of the Family Code. In re A.V., 113 S.W.3d at 362. Section 161.001(1)(D) provides that a “court may order termination of the parent-child relationship if the court finds by clear and convincing evidence . . . that the parent has . . . 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). Section 161.001(1)(E) provides that a court may order termination if it finds by clear and convincing evidence that the parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Id . § 161.001(1)(E).

“‘To endanger’ means to expose a child to loss or injury or to jeopardize a child’s emotional or physical health.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) (citing In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Boyd, 727 S.W.2d at 533)). A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards. Jordan, 325 S.W.3d at 721; In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). Subsection (D) requires a showing that the environment in which the child is placed posed a danger to the child’s physical or emotional health, and it permits termination based on a single act or omission by the parent. In re L.C., 145 S.W.3d 790, 795–96 (Tex. App.—Texarkana 2004, no pet.); see Jordan, 325 S.W.3d at 721.

Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home or with whom the child is compelled to associate on a regular basis in his home is a part of the “conditions or surroundings” of the child’s home under section 161.001(1)(D). Jordan, 325 S.W.3d at 721; In re M.R.J.M., 280 S.W.3d at 502. Thus, although the focus of subsection (D) is on the child’s living environment and not on the parent’s conduct, parental conduct may produce an endangering environment. See Jordan, 325 S.W.3d at 721. For example, abusive or violent conduct by a parent or other resident of the child’s home, as well as illegal drug use and drug-related criminal activity, support a conclusion that the children’s surroundings endanger their physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).

“Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child’s physical well-being was the direct result of the parent’s conduct, including acts, omissions, or failures to act.” Id.; see also Jordan, 325 S.W.3d at 723 (“The relevant inquiry is whether evidence exists that a parental course of conduct endangered the child’s physical or emotional well-being.”). Termination under Subsection E must be based on more than a single act or omission—the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the parent. Jordan, 325 S.W.3d at 723; In re J.T.G., 121 S.W.3d at 125. “Although ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury.” In re T.N., 180 S.W.3d at 383 (citing In re M.C., 917 S.W.2d at 269); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (holding that endangering conduct is not limited to actions directed toward child); Jordan, 325 S.W.3d at 723 (holding that danger to child need not be established as independent proposition and may be inferred from parental misconduct even if conduct is not directed at child and child suffers no actual injury). As a general rule, subjecting a child to a life of uncertainty and instability endangers the child’s physical and emotional well-being. See In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); see also Jordan, 325 S.W.3d at 724 (“Abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child.”).

Danger to the child’s well-being may be inferred from parental misconduct alone, and courts may look at parental conduct both before and after the child’s birth. See Boyd, 727 S.W.2d at 533–34; In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.).

Because the evidence concerning these two statutory grounds for termination is interrelated, we consolidate our examination of it. See In re J.T.G., 121 S.W.3d at 126 (citing In re S.D., 980 S.W.2d at 762 and In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (recognizing link between parent’s conduct and child’s conditions and surroundings)).

Endangerment by Raymond

Raymond argues that because he had been deported by the time DFPS took possession of the children, he could not have knowingly endangered them.  Essentially, he argues, “how can he be held responsible for the conduct of his wife a year [after he was deported].”  DFPS responds that his course of conduct leading to his deportation created the dangerous conditions that endangered his children’s physical or emotional well-being.  We agree with DFPS.

The record shows that, while living with Lauren and the children in Florida, Raymond was convicted multiple times of domestic assault and battery. Danger to the child’s well-being may be inferred from parental misconduct alone, and courts may look at parental conduct both before and after the child’s birth. See Boyd, 727 S.W.2d at 533.

 Lauren testified that Raymond broke her wrist, stabbed her with a screwdriver, and repeatedly beat her during the time they were together, and that the abuse continued until Raymond was deported. Raymond also hit Darren in the head with a broom, requiring several staples to close the wound. See Jordan, 325 S.W.3d at 724 (“Abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child.”); In re B.R., 950 S.W.2d 113, 119 (Tex. App.—El Paso. 1997, no writ) (holding violent conduct directed at the other parent may be sufficient to demonstrate course of conduct under Subsection E).

The record also shows that Raymond’s arrests and convictions eventually led to his deportation.  Deportation, like incarceration, is a consequence of an action, and like incarceration, deportation alone cannot establish a course of conduct endangering a child.  See In re E.N.C., No. 06-10-00131-CV, 2011 WL 3570316, at *11 (Tex. App.—Texarkana Aug. 16, 2001, pet. filed) (analogizing deportation to imprisonment).    However, deportation, like imprisonment, is a factor that is properly considered when assessing endangerment.  See Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 437 (Tex. App.—El Paso 2004, no pet.).  A deported parent, like an incarcerated parent, is absent from the child’s daily life and unable to provide support. See In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston  [14th Dist.] 2005, no pet.). A parent who repeatedly commits criminal acts subjects himself to the possibility of deportation and negatively impacts a child’s living environment and emotional well-being. See id.  Generally, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. In re K.R.L., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).

Finally, we note that, since his deportation, Raymond has made no attempts to remain in contact with his children, nor has he provided them any support.  In fact, the record shows that Raymond was having Lauren send money to him in Honduras, even though he knew that his children had been living in shelters.  See In re V.V., 349 S.W.3d 548, 557 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (holding evidence of incarceration, abuse of mother, and failure to contact or support child sufficient to show that father engaged in course of conduct that endangered child).

Viewing the evidence of repeated acts of domestic violence, resulting in convictions and, ultimately, deportation, along with evidence of failure to contact or support the children, in the light most favorable to the verdict, the trial court could reasonably have formed a firm belief or conviction that Raymond engaged in a course of conduct and placed or allowed the children to remain in conditions that endangered their physical or emotional well-being.  Also, considering the entire record, including both evidence supporting and evidence contradicting the finding, the trial court could have formed a firm conviction or belief that Raymond engaged in a course of conduct and placed or allowed the children to remain in conditions that endangered their physical or emotional well-being.

Accordingly, we overrule Raymond’s second issue on appeal.

Endangerment by Gary

Gary argues that his “strongest argument is that he did not know and was not aware of the environment being endangering to his children.”  He argues that he had no knowledge that Lauren had taken their children to Texas, and that he could not be responsible for the conditions in which they lived while there.  DFPS argues that Gary’s own course of conduct caused the uncertainty and instability in the childrens’ lives.  We agree with DFPS.

The evidence shows that when Darren was born, he tested positive for cocaine.  Gary was not involved in Darren’s life at all at the time, and custody was given to Lauren’s parents.  Gary never sought any custodial rights, nor did he ever provide any support. Gary has never been involved with either of his children at all, other than asking how they were doing whenever he happened to see Lauren.  Lauren also testified that Gary abused her physically and mentally when they were “around each other.”  See In re B.R., 950 S.W.2d at 119 (holding violent conduct directed at the other parent may be sufficient to demonstrate course of conduct under Subsection E).

There was evidence in the record that Gary had been convicted in February 2000 of committing a lewd, lascivious or indecent act upon a child, and that he received a six year sentence. He was also required to register as a sex offender. Lauren testified that Gary had molested his cousin and sister.  There was also evidence of a 2009 conviction for possession of cocaine.  At the time of trial, Gary was still in prison for this crime and had no known release date.  Imprisonment of the parent is a factor to consider on the issue of endangerment. Boyd, 727 S.W.2d at 533. However, imprisonment by itself is not enough to constitute engaging in conduct that endangers the emotional or physical well-being of the child. Boyd, 727 S.W.2d at 533–34. On the other hand, if the evidence, which includes imprisonment, shows a course of conduct that has the effect of endangering the physical or emotional well-being of the child, a finding of endangerment is supportable. Boyd, 727 S.W.2d at 533–34. Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.  In re K.R.L., 129 S.W.3d at 739.

Lauren also testified that Gary was aware that Raymond was abusing her.  She testified that one day she had Caitlyn with her, and they had dropped off one of the boys at school when she saw Gary.  Gary inquired about his son, when Raymond arrived and got angry when he saw Lauren and Gary talking.  Raymond pulled Lauren’s arm into the car and attempted to drive away, breaking her arm.  Gary witnessed this abuse, but never attempted to have his children removed from Raymond’s home.  See In re J.M.M., 80 S.W.3d 232, 241–42 (Tex. App.—Fort Worth 2002, pet. denied) (holding evidence legally and factually sufficient under sections D and E to terminate mother’s parental rights based in part on evidence that mother placed children with physically abusive father).  Here, Gary allowed his children to be raised by a man he knew was abusive.

Viewing the evidence of abuse towards Lauren, repeat convictions and imprisonments for sexual abuse of a child, then selling cocaine, permitting his children to be raised by an abusive father, along with evidence of failure to contact or support the children, in the light most favorable to the verdict, the trial court could reasonably have formed a firm belief or conviction that Gary engaged in a course of conduct and placed or allowed his children to remain in conditions that endangered their physical or emotional well-being.  Also, considering the entire record, including both evidence supporting and evidence contradicting the finding, the trial court could have formed a firm conviction or belief that Gary engaged in a course of conduct and placed or allowed the children to remain in conditions that endangered their physical or emotional well-being.

Accordingly, we overrule Gary’s second and third issues on appeal.

In light of our finding that the evidence was legally and factually sufficient to support termination of Raymond’s and Gary’s parental rights under sections 161.001(1)(D) and (E), we need not address whether the evidence is sufficient to support termination under other sections of the statute.  See In re A.V., 113 S.W.3d at 362 (“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.”). 

BEST INTEREST OF THE CHILDREN

In Gary’s seventh issue and Raymond’s third issue, appellants argue that the evidence is legally and factually insufficient to support the trial court’s finding that termination of their parental rights was in the best interest of their children.

There is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. In re. R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). 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). Among others, the following factors should be considered in evaluating the parent’s willingness and ability to provide the child with a safe environment: the child’s age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; 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; and whether an adequate social support system consisting of an extended family and friends is available to the child. Id. § 263.307(b).

The Texas Supreme Court has set out some additional factors that courts can 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 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 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 is not an exhaustive list, and a court need not have evidence of every element listed in order to make a valid finding as to the child’s best interest, especially when there is undisputed evidence that the parental relationship endangered the child. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). While no one factor is controlling, analysis of a single factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child. See In re A.P., 184 S.W.3d 410, 414–15 (Tex. App.—Dallas 2006, no pet.) (citing In re C.H ., 89 S.W.3d at 27).

Best Interest of Raymond’s Children—Kasey, Caitlyn, Raymond, Jr., Mary, and James

          Raymond argues that termination was not in the best interest of his children because “DFPS, at best, was lackadaisical in placing the children with family members” in violation of Tex. Fam. Code Ann. § 262.114 (Vernon Supp. 2010). Specifically, Raymond argues that his aunt, Aurelia, testified that she would be willing to take all eight children, but that DFPS never conducted a home study regarding placement with her.  There was evidence that Aurelia missed her meeting with DFPS because of a conflicting court date, and that her daughter called repeatedly to reschedule the meeting, but DFPS never did so.

            In contrast, DFPS employee A. Snoke, testified that Aurelia wanted to see pictures of the children so that she could “pick and choose which children she wanted.”  However, Aurelia did not show up for the meeting.  CASA representative Cheatham, who spoke Spanish, called Aurelia several times thereafter to reschedule the meeting, but Aurelia never returned the calls, so DFPS quit trying to contact her.  Several months later, Aurelia’s daughter called to try and reschedule the meeting, but DFPS made the decision not to proceed with a home study because the final termination hearing was too close.

Raymond argues that, because no home study was ever done regarding a possible placement with Aurelia, termination would not be in the best interest of his children.  However, courts have held that the failure to conduct or obtain a home study pursuant to section 262.114 is not a bar to termination. In re G.B. II, No. 10-10-00244-CV, 2011 WL 2151283, at *1  (Tex. App.—Waco June 1, 2001, no pet.); Frank R. v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00436-CV, 2010 WL 1507832, at *2–3 (Tex. App.—Austin April 13, 2010, no pet.); In the Interest of J.F., No. 02–08–00183–CV, 2007 WL 2963690, *6–8 (Tex. App.—Fort Worth Oct. 11, 2007, pet. denied); In the Interest of C.C., No. 02-04-00206-CV, 2005 WL 1244672, *6–7 (Tex. App.—Fort Worth May 26, 2005, no pet.).

Because the lack of a home study is not outcome determinative, we consider other factors in determining whether termination was in the children’s best interest.  First, we note that there was evidence that, despite her testimony to the contrary, Aurelia did not want all of the children.  In fact, Aurelia turned away the entire family when Lauren called from the bus station because she did not know about the three children who had not been fathered by Raymond.  She allowed the entire family to live in a shelter and provided only $50 dollars toward their support, even though she knew they were living in a shelter.  There was also evidence from which the trial court have concluded that Aurelia did not cooperate with DFPS because, after missing her scheduled appointment, she did not return their numerous calls.  There was no evidence that the children knew Aurelia or wanted to live with her.  From this evidence, the trial court could have concluded that placement with Aurelia would not be in the best interest of the children.

          The trial court also could have considered Raymond’s abuse of Lauren and Darren, as well the fact that Raymond did not contact or support his children after being deported as evidence that “the existing parent-child relationship is not a proper one.” Holly, 544 S.W.2d at 271–72. And, when he did live with the children, Raymond allowed the boys to do whatever they wanted, but he mentally abused the girls by being very controlling, not allowing them to have friends, and limiting their role in the family to cooking and cleaning.

There was evidence that Raymond’s relationship with his children was non-existent at the time of trial.  Even though not prohibited from doing so by his deporation, Raymond had made no effort to remain in contact with his children.  And, not only did Raymond not provide any support for his children, he in fact took money from them when he had Lauren send him $3000 in Honduras, even though he knew his children had been living in shelters.  There is also no evidence in the record of any excuse for Raymond’s acts or omissions.  Id.

          In considering future plans for the children and the stability of their future homes, we note that Raymond provided no plans for the children other than a possible placement with Aurelia, which we have discussed.  The fact remains, however, that Raymond is prohibited from entering the country, and he did not provide evidence about any plans to bring the children to live with him.  Thus, reunification with his children seems unlikely.

          In contrast, Ms. Goins testified that Kasey, Caitlyn, and Mary had been living with her since June 2009.  When they first began living with Goins, their grades and attendance at school were bad, but now they are on the honor roll and have perfect attendance.  Goins testified that she would like to adopt the girls if possible, and she believes the girls would like to live with her permanently. She has allowed and encouraged the girls to remain in contact with their brothers, but does not feel that they should all live together since the older brothers were often violent and controlling, and Darren had shown some issues with acting out sexually.  Ms. Goins is an assistant principal and testified that her salary would be sufficient to allow her to raise and care for all three girls.

          The record showed that Raymond, Jr. had initially been placed with his maternal grandfather in Florida, but when the grandfather died, Raymond Jr. went to live with his maternal great-aunt.  His CASA representative, Cheatham, testified that Raymond, Jr. was doing well in this placement, and that it would be in his best interest to remain in that placement.

          James, the infant who was born right before the hurricane, was in a foster home and was doing well.  In an earlier placement, he had been non-verbal and standoffish, but DFPS had recently put him in a new foster home and he had shown much improvement.  His sisters had visited him and he had played with them and interacted with them in a way that he had never done while in the previous placement.  His CASA representative testified that he seemed very happy in his new placement, and was receiving special education.

          Considering these factors, we conclude that legally and factually sufficient evidence supports the trial court’s finding that termination was in the best interest of Kasey, Caitlyn, Mary, Raymond Jr., and James.

Best Interest of Gary’s Children—Darren and Jason

          The record shows that Gary has never had a role in his sons’ lives, and has been incarcerated for much of their lives.   He has never maintained any contact with them or provided any form of support whatsoever.  When Gary was in prison, Lauren sent him a picture of his son, but Gary never responded.  Gary physically abused Lauren when they were together. He then allowed his children to be raised by Raymond, even though he had witnessed Raymond physically abusing Lauren.  From this evidence, the trial court could have concluded that a child in Gary’s custody would face emotional and physical danger now or in the future.  Gary offered no excuse for his behavior.  Id.

          Regarding plans for the childrens’ future placements, we note that a home study was done of Gary’s sister in Florida.  However, Darren did not want to move to Florida, because he wanted to remain near his older brother, Derek, who was in a group home in Texas.

          At the time of trial, Darren was in a foster home in Texas, where he was happy and had been doing well.  However, there was evidence that Darren had acted out in an inappropriately sexual manner, and likely would be moved in the near future because his foster mother said that he would be unable to remain in the current placement.  However, there was testimony that Darren should probably not be moved to Gary’s sister in Florida because there was a younger child in the household, and there was a concern that Darren would continue his sexually inappropriate behavior.  Although there was no current placement plan for Darren, his CASA representative testified that he should not be placed with Gary because of Gary’s history of violence and criminal activity.  There was also no evidence of when Gary would be released from prison. While in DFPS’s custody, Darren was receiving counseling and was doing better in a structured environment than he had been before the department took custody.  Though he was still facing significant hurdles, the trial court could have reasonably concluded that it was in Darren’s best interest to terminate Gary’s parental rights.

          Jason had been living with Ms. Goins’s daughter, Dana, even before the department placed the children in its custody.  Dana took Jason with Lauren’s consent when he was 18 months old because his older brothers had been abusing him by choking him, slamming him on a bed, and tripping him on the floor.  There was evidence that at the time of trial, Jason was in pre-kindergarten, where he was doing well.  Jason calls Dana “momma,” and Dana, a third-grade teacher, testified that she would like to adopt Jason.  Her goal for him was to be happy, to go to college, and to be successful.  In Dana’s home, Jason would have significant contact with his sisters, who were being raised by Dana’s mother. 

          Considering these factors, we conclude that legally and factually sufficient evidence supports the trial court’s finding that termination was in the best interest of Darren and Jason.

          We overrule Gary’s seventh issue and Raymond’s third issue.

CONCLUSION

          We affirm the trial court’s decree terminating Gary’s and Raymond’s parental rights.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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[1]           For purposes of this opinion, both the parents and the children will be referred to by aliases.  See Tex. R. App. P. 9.8.

[2]           Tex. R. Civ. P. 105 requires that the person serving process “shall endorse thereon the day and hour which he received it, and shall execute and return the same without delay.”