in the Interest of A. N.

• Court: Court of Appeals of Texas
• Decided: October 3, 2002
• Docket: 14-02-00157-CV
• Status: Published

Opinion

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed October 3, 2002.                                                  

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00157-CV 

IN THE INTEREST OF A.N.

On Appeal from the 313th District Court

                                                           Harris County, Texas                      

Trial Court Cause No. 00-01268J

O P I N I O N

            Appellants challenge the termination of their parental rights to their child, A.N.  The child was born on February 11, 2000, one month after R.N. (the child’s natural father) began serving a three-year prison sentence for burglary.  Before that, the Texas Department of Protective & Regulatory Services (“the Department”) had placed the couple’s other two children in foster care.  Because of these developments and the failure of A.M. (the child’s natural mother) to follow the Department’s parenting recommendations with regard to her other children, the Department also took custody of A.N. shortly after the child’s birth. 

After removing A.N., the Department prepared a family service plan designed to educate A.M. and R.N. on proper parenting techniques, detailing various tasks for them to accomplish to regain custody of A.N.  The Department sent the information to R.N. in prison but received no response from him.  After A.M. completed the plan, the Department returned A.N. to her.  However, six weeks later the Department again removed A.N. alleging serious health and safety risks.  The Department returned A.N. to foster care and sought termination of the parent-child relationship.  A jury was waived, and after trial the court granted termination.  Finding sufficient evidence to support the judgment, we affirm.

Standard of Review

A trial court may order involuntary termination upon clear and convincing evidence of an enumerated statutory ground, see Tex. Fam. Code. § 161.001(1), and if termination is in the best interest of the child, see id. § 161.001(2).  In re W.D.H., 43 S.W.3d 30, 34-35 (Tex. App.—Houston [14th Dist.] 2001, pet.denied).  A.M. challenges the factual sufficiency of the latter, while R.N. challenges the factual sufficiency of the former.  We view all the evidence to determine whether a reasonable factfinder could form a firm belief or conviction that the Department established the grounds for termination.  In the Interest of C.H., 45 Tex. Sup. Ct. J. 1000, 2001 WL 1903109, at *1 (Tex. July 3, 2002).

 A.M. (Mother)

            In her sole point of error, A.M. argues that the evidence is factually insufficient to support the finding that she engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child.  See Tex. Fam. Code § 161.001(1)(E).  She does not challenge the trial court’s finding that termination is in the child’s best interest.

JoAnn Trchalek, office manager of the daycare the child attended during the six weeks she was in A.M.’s care, testified that the infant’s physical appearance and hygiene worsened over this time.  She testified that her clothes were not washed, her fingernails became dirty and long, her ears and nose were not cleaned, and she developed a recurring lice problem that A.M. appeared unable to address.  She also found bruises on the inside of the child’s legs and red marks on her chest and shoulders.  Kino Lewis, the child’s care worker, also testified that A.N. was “filthy” and “smelled bad” while under A.M.’s care.

Dr. So Peen Chin, a pediatrician with Texas Children’s Hospital in Houston, Texas testified A.N. looked sad when he saw her September 19, 2001, the day she was removed again from A.M.’s care.  He testified that her hair was matted and contained nits and lice, her nose and mouth were surrounded with dried and crusted mucus, her fingernails were dirty, and her buttocks and lower back were caked with dry feces.  But Dr. Chin was most concerned about A.N.’s four to six ounce weight loss since his examination six weeks earlier, a significant amount considering the child weighed less than twenty pounds and should have been gaining six to eight ounces per month.

Dr. Amanda Norris, a clinical psychologist who saw A.M., testified that she appeared to be a loving parent who was very focused on her children, but that she also denied any responsibility for A.N.’s condition.  She was uncertain as to A.M.’s ability to change her behavior, and doubted her ability to take care of a two-year-old child.

Also admitted in evidence was a petition filed by R.N. in August of 2001, in which he argued that A.M. was a prostitute, had an alcohol and drug abuse problem, and possessed poor parenting skills.  Because they were later reconciled, R.N. refused to discuss the petition at trial. 

In her testimony, A.M. admitted she intended to continue her relationship with R.N. when he was released from prison, despite his history of repeated incarceration, drunkenness, and complete lack of involvement with his children by other women. 

On appeal, A.M. asserts only that the evidence was factually insufficient because the weight loss was not her fault.  But A.M.’s own sister testified she did not feed her other children appropriately.  Moreover, A.M. challenges none of the additional evidence supporting the court’s finding.  Clearly, unsanitary conditions can be sufficient to endanger the physical or emotional well-being of a child.  See In re M.C., 917 S.W.2d 268, 270 (Tex.1996). 

We hold there was factually sufficient evidence for a reasonable factfinder to reach a firm belief that A.M. endangered the well-being of A.N.  A.M.’s point of error is overruled.

R.N. (Father)

            In his appeal, R.N. concedes that his criminal conviction and confinement resulted in inability to care for A.N. for at least two years. [1]  See Tex Fam. Code § 161.001(1)(Q).  In his sole point of error, he argues the evidence is factually insufficient to show that termination was in her best interest.  Tex Fam. Code § 161.001(2).

            Several factors may be considered in determining a child’s best interest, including the child’s desires, the child’s emotional and physical needs, the emotional and physical danger to the child, the parental abilities of and programs available to assist the individual seeking custody, the plans for the child by the individual seeking custody, the stability of the home, the acts or omissions of the parent that indicate an improper existing parent-child relationship, and any excuses for the parent’s acts or omissions.  See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).  This list is not exhaustive, and proof of every factor is not required.  See In the Interest of C.H., 45 Tex. Sup. Ct. J. 1000, 1006, 2001 WL 1903109, at *9 (Tex. July 3, 2002).

            R.N. argues that his current incarceration affects his “availability” but not his “ability” to parent, one of the factors listed above.  But this is merely one factor out of several in a non-exhaustive list.  The Department presented evidence of several others.

R.N. is currently incarcerated for burglary of a building with intent to commit theft.  He testified that the charge was originally for capital murder, but he did not know his four co-defendants were going to kill their landlord.  He admitted he knew what he did was wrong, but described his involvement (while A.M. was seven and a half months pregnant with A.N.) as “not a big issue.”

Previously, R.N. had been convicted of burglary of a motor vehicle, as well as aggravated assault. The latter was committed in front of his oldest child with A.M.  Stemming from a disagreement over use of the telephone, R.N., who had been drinking, cut the telephone line and threatened A.M.’s brother with a knife.  According to Janet Wrench, A.M.’s sister, R.N. shoved Wrench’s mother into a dishwasher and pushed Wrench into the dryer during the aggravated assault. 

Before his conviction and prison sentence, R.N. did nothing to provide for A.M.’s medical care during pregnancy, and since the conviction and incarceration has not been involved in parenting A.N.  A.M. testified that he did nothing to help care for their other children before A.N.  Similarly, R.N. testified that he had two children from relationships prior to A.M., but did not know where one lived, and felt it was best not to “mess” with the other.

            A.M. testified that R.N. drank everyday from the time he awoke to the time he went to bed.  R.N. himself testified he could drink up to four cases of beer a day and admitted to drinking and driving.  Nonetheless, R.N. testified that he did not feel he had a drinking problem, and could quit any time he chose.

            R.N. relies almost exclusively on his own testimony that he plans to be involved with A.N. upon release.  But he failed to outline any concrete plans to provide for her financial, medical, emotional or physical care.  He merely testified that he felt that it was better for his family to stay together. 

            We find this evidence is factually sufficient to support a finding that termination of the parent-child relationship was in A.N.’s best interest.  See In the Interest of C.H., 45 Tex. Sup. Ct. J. at 1007-1008 (reversing finding of factual sufficiency because court of appeals did not explain why it discounted evidence of parent’s incarceration, previous criminal history, failure to arrange for prenatal medical care, failure to provide postnatal emotional and financial assistance, lack of a concrete plan for emotional and physical care, and unawareness of the whereabouts of a child from a prior marriage).  R.N.’s point of error is overruled.

Conclusion

The evidence was factually sufficient to terminate the parent-child relationships of appellants A.M. and R.N.  The judgment is affirmed.

                                                            /s/        Scott Brister

                                                                        Chief Justice

Judgment rendered and Opinion filed October 3, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish — Tex. R. App. P. 47.3(b).

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[1] The Department’s petition was filed in February 2000, and R.N.’s confinement continues through December 2002.