in the Interest of A.C.B., a Child

• Court: Court of Appeals of Texas
• Decided: May 29, 2015
• Docket: 07-15-00054-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00054-CV

IN THE INTEREST OF A.C.B., A CHILD

On Appeal from the 46th District Court Foard County, Texas Trial Court No. 4771, Honorable Dan Mike Bird, Presiding

May 29, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

K.B. and J.B. appeal the termination of their parental rights by a jury to their

eighteen-month-old daughter A.C.B. They contend the evidence is legally and factually

insufficient to support four statutory grounds for termination as well as the finding that

termination is in the best interest of the child. We affirm the termination order.

Because the case was submitted to the jury in broad form, we need only find the

evidence sufficient to support a single statutory ground for termination and that the best

interest of the child is served through termination. In the Interest of D.N., 405 S.W.3d

863, 872 (Tex. App.—Amarillo 2013, no pet.). Clear and convincing evidence of the

same is required which means that 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. In the

Interest of C.C., No. 07-12-00500-CV, 2013 Tex. App. LEXIS 5704, at *7 (Tex. App.—

Amarillo May 8, 2013, no pet.). We must look at all the evidence in the light most

favorable to the finding when conducting the legal sufficiency review and defer to the

jury as factfinder in the resolution of evidentiary conflicts in favor of its findings when

reasonable to do so and by disregarding evidence that it could reasonably have

disbelieved. Id. at *7-8.

In conducting the factual sufficiency review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex.

2002). In other words, “[i]f, in light of the entire record, the disputed evidence that a

reasonable factfinder could not have credited in favor of the finding is so significant that

a factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient.” Id.

To preserve a complaint of legal sufficiency of the evidence for review after a jury

trial, there must be 1) a motion for instructed verdict, 2) a motion for judgment

notwithstanding the verdict, 3) objection to submission of a jury question, 4) a motion to

disregard the jury’s answer to a vital fact, or 5) a motion for new trial. In the Interest of

C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11-12 (Tex. App.—

Amarillo October 7, 2014, no pet.). A complaint as to factual sufficiency must be

preserved by a motion for new trial. Id. Here, we find a motion for new trial stating

there is “insufficient evidence as to the best interest of the child.” However, no mention

2 is made of the statutory grounds found by the trial court. The failure to do so waives

any complaint with respect to those grounds. Id.

Even if not waived, termination is permissible if it is found that the parent

“constructively abandoned the child who has been in the permanent or temporary

managing conservatorship of the Department of Family and Protective Services . . . for

not less than six months, and: (i) the department . . . has made reasonable efforts to

return the child to the parent; (ii) the parent has not regularly visited or maintained

significant contact with the child; and (iii) the parent has demonstrated an inability to

provide the child with a safe environment.” TEX. FAM. CODE ANN. § 161.001(1)(N) (West

2014). Here, the child was removed shortly after her birth on August 29, 2013 while she

was still at the hospital. A drug test on the child initially showed positive for

methamphetamine. The parents were informed that K.B. would not be allowed to breast

feed the child until another drug screen had been conducted, and the Department of

Family and Protective Services (the Department) was notified. J.B. then became

agitated and belligerent and was forced to leave the hospital premises by police. In

talking to K.B., the Department learned of several suicide attempts by her during her

pregnancy.1 Soon after that interview, K.B. left the hospital, against the advice of

doctors, and stated she would rather her baby starve and die than be bottle fed. The

second drug test came back negative but the parents had disappeared and not

returned. J.B. left several voice mail messages for the Department claiming nurses had

given his child methamphetamine and that he was going to sue the hospital. The

Department then took custody of the child and she had not been returned to the parents

1 One time, K.B. took an overdose of Zoloft and Hydrocodone (which belonged to J.B.) and, another time, she punched herself in the stomach to harm herself and the baby. She blamed the baby for making her depression worse. K.B. has suffered from a depressive disorder most of her life.

3 at the time of the final hearing in January 2015. K.B. admitted at trial that the child had

been in the Department’s managing conservatorship for six months.

The parents were permitted weekly visits with the child during August,

September, and October 2013. However, after several months, the guardian ad litem

for the child petitioned for the visits to cease because they were detrimental to the child.

K.B. did not know how to hold the child, diaper her, or console her. While J.B. would

help her, at some point during the visitations he would begin to rant about his political

beliefs and agendas which upset the child. A Department worker would have to take

the child away and attempt to calm her. At one time, a Department worker asked J.B. if

he could speak in an appropriate manner to his child and his response was, “why would

I have to; these are my beliefs and this is what she’s going to believe.” At the time that

visitations stopped, the court informed the parents that they could petition later for visits

to recommence, but they never did so. They also never sent the child gifts, letters,

money, clothes, toys, or other items. Although J.B. corresponded frequently with the

Department by e-mail, he never asked how the child was doing or said he missed her.

The parents received photographs of the child from the Department that had been

forwarded from the foster parents, but J.B. was more concerned with the size of the

photographs, as indicated by numerous e-mails to the Department complaining of the

same, rather than their content.2 When J.B. was offered a picture of his child in person

by a Department worker, he called her a “cunt” and a “bitch.” 3 At one of the initial

2 Even at the final hearing, J.B. testified that the Department workers were liars when they told him they did not know how to send him larger pictures. J.B. admitted that he used one photograph given to him to track his daughter’s location at a trick or treat event which he objected to because it was sponsored by several churches. 3 J.B. testified he had told the Department that he did not want to receive photographs in person but only wanted them e-mailed.

4 hearings with the Department, J.B. was more interested in discussing his potential

lawsuit against the hospital than the custody of his child. This is sufficient evidence of

constructive abandonment. See In the Interest of J.J.O., 131 S.W.3d 618, 628-29 (Tex.

App.—Fort Worth 2004, no pet.) (finding the evidence sufficient when the mother did

not regularly visit or maintain significant contact during the nine-month service plan

even though she made twelve visits because she did not speak to the child for the entire

hour of the first visit, cancelled one visit 45 minutes after it was to have started, was late

for some visits, missed several visits, and went three months without visiting the child

after which the child did not recognize its mother).

A service plan was put in place that directed the parents, among other things, to

1) submit themselves to random drug screens, 2) successfully complete parenting

classes, 3) demonstrate a legal source of income and be able to provide for their child

on an on-going basis, 4) provide and maintain a safe and stable home with working

utilities and allow the Department announced and unannounced home visits, and 5)

agree to participate in individual or couples counseling and follow all recommendations.

Evidence showed that 1) the parties were only asked to submit to one drug screen on a

day that they already had a ride to town but they refused to do so because they claimed

they would not ask the person giving them a ride to accommodate that request, 4 2) the

parents did not complete parenting classes but blamed their failure on the Department

even though the Department mailed them the materials with a paid envelope for them to

return their assignments, offered to collect the assignments during home visits, and

offered to teach a class to them during which J.B. was disruptive and did not permit the

4 K.B. and J.B. do not have working transportation of their own, and J.B. has not had a driver’s license since 2012.

5 teacher to stay on topic, 3) the only source of income of the parents is a disability

payment received by K.B. for her depressive disorder in the amount of $720-730 per

month but K.B.’s listing of their expenses was greater than this amount,5 4) several

times during home visits, it was noted that the house smelled, did not have utilities,

trash and boxes were piled up, and the house was not structurally safe for a baby and,

although there had been improvements at the time of trial, it was still not at a safe level,6

5) J.B. refused to let the Department worker enter the home one time because his wife

was not present, and 6) the parents did not successfully complete counseling because

the first therapist refused to continue to counsel them after J.B. threatened her, the

second counselor likewise encountered a problem with J.B. threatening her practice,

being belligerent, ranting about his political views, and refusing to allow K.B. to come

alone for counseling, and J.B. refused for he and his wife to attend counseling with the

psychologist who performed their psychological evaluations because there was

“religious rhetoric on the walls.”7 There was also evidence that J.B. was arrested for

domestic violence against his mother-in-law in October 2013, and was found by the

sheriff standing over K.B. in a manner that indicated he might be about to assault her.

Other evidence indicated that J.B. attempts to interfere in or control his wife’s treatment

for her depressive condition which has already resulted in multiple suicide attempts.8

5 J.B. has computer skills but has not had a regular job since 2012. He claimed there was no work of that kind available where they lived, that he had no transportation, and that he could not commit his time to a job because of the necessity for him to attend hearings with the Department. 6 The Department worker testified that even when she made announced home visits, she would be left standing outside for ten minutes while the parents cleaned up the house. 7 The Department provided transportation for the parents to counseling. 8 He did not want her to take Zoloft during her pregnancy even though he was advised by a doctor that the risk of suicide was greater than the risk of taking the medicine during pregnancy.

6 A service plan alone is evidence that the Department made reasonable attempts

to return the child to the parents, In the Interest of N.R.T., 338 S.W.3d 667, 674 (Tex.

App.—Amarillo 2011, no pet.), and there is evidence here that the Department made

extra efforts to help them complete the plan. The evidence also supports a finding that

the parents are not able to provide the child with a safe environment.

As for evidence establishing that termination was in the best interest of the child,

we peruse the record for the existence of the Holley factors. See Holley v. Adams, 544

S.W.2d 367 (Tex. 1976). Those factors include, among other things, 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 those individuals

to promote the best interest of the child, 6) the plans for the child by those individuals or

by the agency seeking custody, 7) the stability of the home, 8) the acts or omissions of

the parents indicating that the existing parent-child relationship is not a proper one, and

9) any excuse for the acts or omissions of the parents. In the Interest of L.L., No. 07-

14-00395-CV, 2015 Tex. App. LEXIS 1080, at *5-6 (Tex. App.—Amarillo February 4,

2015, no pet.) (mem. op.); In the Interest of P.E.W., 105 S.W.3d 771, 779-80 (Tex.

App.—Amarillo 2003, no pet.). It is not necessary that each factor favors termination,

and the list is not exclusive. In the Interest of P.E.W., 105 S.W.3d at 779-80. Further,

the same evidence supporting the presence of a statutory ground for termination is

often relevant when assessing the child’s best interest. In the Interest of L.L., 2015 Tex.

App. LEXIS 1080, at *6.

7 In addition to the evidence already mentioned, there is evidence that 1) the

parents tend not to take responsibility for their problems but blame them on other

people, 2) J.B. has an inflated sense of self-worth, tends to put his thoughts above

others, and lacks empathy, 3) K.B. tends to be overly dependent on J.B., 3) J.B.

threatened the Department worker and her job and threatened to have her put in jail, 4)

J.B. called the guardian ad litem for the child “a fucking perjurer” and testified he plans

to have a perjury case brought against her, 5) the child is thriving in her foster home and

meeting her developmental milestones, 6) the foster parents want to adopt her, 7) the

child is bonded to another child in the foster home, and 8) the child does not know her

parents.

It is true that K.B. takes her medication, has not attempted suicide since October

2013, and talks to someone at the Helen Farabee Center on a fairly regular basis.

However, there is also evidence that K.B. tends to have to change medication from time

to time and appears to have relapses during those periods and that she allows J.B. to

control her treatment. Given the precarious nature of her illness and that her support

system consists solely of J.B.,9 the jury did not act unreasonably in concluding that

termination was in the child’s best interest.

Accordingly, the order of termination is affirmed.

Brian Quinn Chief Justice

9 K.B. testified she had neighbors that helped her but she did not name them or discuss any instances of help.