in the Interest of A.E., Jr., Children

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00092-CV

IN THE INTEREST OF A.E., Jr., et al., Children

From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2013-PA-00722 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

Delivered and Filed: July 2, 2014

AFFIRMED

Appellant Tommi Jo appeals the trial court’s order terminating her parental rights to A.E.,

Jr., M.J.E., M.E., and M.E., minor children. Gerald, father of M.E. and M.E., minor children, also

appeals the trial court’s order terminating his parental rights to M.E. and M.E. On appeal, Tommi

Jo and Gerald challenge the legal and factual sufficiency of the evidence to support the trial court’s

determination that termination is in the best interests of the children and the appointment of the

Texas Department of Family and Protective Services as the children’s sole managing conservator.

Because the evidence was sufficient to support the trial court’s finding that the termination was in

the children’s best interests, we affirm the trial court’s order. 04-14-00092-CV

FACTUAL BACKGROUND

On March 26, 2013, the Texas Department of Family and Protective Services (the

Department) sought emergency custody of Tommi Jo’s minor children, varying in age from seven-

years to six-months, based on abuse and neglect. Tommi Jo was incarcerated on probation

violations.

A.E., Jr. and M.J.E. were fathered by Andrew, 1 who was incarcerated during the entire

pendency of the proceedings; the younger two children, M.E. and M.E., were fathered by Gerald.

The caseworker testified that Gerald denied paternity at the time of the removal. After several

settings, the Department filed service plans in May of 2013. In September of 2013, Gerald did not

appear for the permanency hearing.

On October 17, 2013, Tommi Jo was released from the Bexar County jail and moved to

Del Rio, Texas to live with Gerald. On November 30, 2013, Gerald was arrested for family

violence against Tommi Jo. On January 14, 2014, the trial court declared Gerald as the father of

M.E. and M.E.

The case was called for a termination hearing on January 27, 2014. The trial court heard

from several witnesses.

A. Wendy Pierce

Department caseworker, Wendy Pierce, testified that she originally removed the children

from Tommi Jo’s residence over concerns of physical neglect, neglectful supervision, and

domestic violence in the home. Additionally, Pierce testified the children’s medical needs were

not being met, the children were not receiving adequate food and clothing, and an adult-sibling

admitted to using marijuana in front of the children. She testified that she contacted Gerald who

1 Andrew has not filed an appeal regarding the termination of his parental rights and his termination is not addressed in this opinion.

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informed her, “He did not want the children. He was not the father to the children and could not

provide care for the children.” Pierce also testified that neither Tommi Jo nor Gerald notified her

of Gerald’s arrest stemming from an alleged domestic violence assault against Tommi Jo on

November 30, 2013. Pierce testified that neither Tommi Jo nor Gerald could provide a safe and

stable home for the children.

B. Christina Ramirez

Department caseworker, Christina Ramirez, testified that Andrew, the father of A.E., Jr.

and M.J.E. was incarcerated due to an indecency with a child conviction. Additionally, Ramirez

testified that Gerald continued to engage in domestic violence and that he was arrested in Del Rio

on November 30, 2013, after an argument with Tommi Jo.

Ramirez also testified that Tommi Jo had not provided proof of her completion of any

requirement of her service plan, had not visited with her children, and had not provided any proof

of employment. Additionally, when Tommi Jo was released from jail on October 17, 2013, she

did not contact Ramirez for almost a month and Tommi Jo further elected to move into Gerald’s

residence in Del Rio. This decision caused great problems with setting up services for Tommi Jo,

a decision Ramirez discussed with Tommi Jo. Although Ramirez tried for two weeks to provide

a visitation between Tommi Jo and her children, the visitation never occurred.

Ramirez further testified that although the children were currently in a foster home, and a

permanent placement was not yet available, she did not believe either parent could provide a safe,

stable environment or protect the children. Finally, Ramirez testified termination of Tommi Jo’s

and Gerald’s parental rights was in the children’s best interests.

C. Tommi Jo

Tommi Jo testified that she was incarcerated for a probation violation stemming from a

conviction for injury to a child. Tommi Jo explained that she was arrested on an outstanding -3- 04-14-00092-CV

warrant; Gerald notified the police because he was upset with her. After being released in October

of 2013, Tommi Jo testified that she moved to Del Rio to live with Gerald and that neither she nor

Gerald had a driver’s license or a vehicle to travel to San Antonio to see the children. Additionally,

Tommi Jo testified that she was under the belief that she could not leave Del Rio based on her

probation status.

Tommi Jo acknowledged that although she had spoken to the older children, she had not

seen any of the children since they were removed in March of 2013. She also testified that she

completed several courses while she was incarcerated, but was unable to provide a copy of the

certificate she claimed to have provided the Department. Additionally, her service plan required

her to be employed and, although she had not provided the caseworker with pay stubs, she began

working for the Dollar Store in December of 2013.

As to Gerald, Tommi Jo conceded that he had not attempted to contact the children or the

Department during the pendency of the suit.

D. Gerald

Gerald testified that he had four driving while intoxicated convictions in Bexar County,

Texas and a protective order filed against him from a previous relationship that he subsequently

violated. During the pendency of the suit, Gerald lived in Del Rio. Gerald testified that he tried

to contact the caseworker at least once a month, and, when he finally had Wendy on the phone,

she hung up on him. Gerald denied telling the caseworker that he could not care for the children.

E. Trial Court Action

At the end of the termination hearing, the trial court terminated Tommi Jo’s maternal rights

to A.E., Jr., M.J.E., M.E., and M.E. and terminated Gerald’s paternal rights to M.E. and M.E. Both

Tommi Jo and Gerald appeal the trial court’s termination order.

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STANDARD OF REVIEW

Parental rights may be terminated only upon clear and convincing evidence the parent has

committed an act prohibited by section 161.001(1) of the Texas Family Code, and that termination

is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014)

(emphasis added); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re A.V., 113 S.W.3d 355,

358 (Tex. 2003). “Clear and convincing evidence is ‘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.’”

In re J.O.A., 283 S.W.3d at 344 (quoting TEX. FAM. CODE ANN. § 101.007).

In evaluating the evidence for legal sufficiency in parental termination cases, we examine

“‘all the evidence in the light most favorable to the finding to determine whether a reasonable trier

of fact could have formed a firm belief or conviction that its finding was true.’” Id. (quoting In re

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We must also “disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.” In re J.F.C., 96 S.W.3d at

266.

When the evidence is challenged for factual sufficiency, we also review the disputed or

conflicting evidence. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. We afford

due deference to the fact-finder’s findings and will not supplant the reasonable fact-finder’s

judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). “‘If, 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.’” In re J.O.A., 283 S.W.3d at 345

(quoting In re J.F.C., 96 S.W.3d at 266).

Because the parties only contest the trial court’s determination of the best interests of the

children, we need not address the statutory requirements under section 161.001(1). TEX. FAM. -5- 04-14-00092-CV

CODE ANN. § 161.001(1). We, therefore, look at the sufficiency of the evidence to support the

trial court’s determination that termination is in the best interest of the children. Id. § 161.001(2).

BEST INTERESTS OF THE CHILDREN

There is a strong presumption that the best interest of the child is served by keeping the

child with the natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]

2003, pet. denied). It is not, however, the only factor. An appellate court considers several factors

“when determining whether termination of parental rights is in the best interest of the child.” In

re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). These include the statutory factors in

section 263.307 of the Family Code, id. (citing TEX. FAM. CODE ANN. § 263.307), as well as the

common law factors described by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367,

372 (Tex. 1976) (identifying a non-exhaustive list of factors).

A. Termination as to Tommi Jo

Tommi Jo’s court-appointed attorney filed a brief containing a professional evaluation of

the record and demonstrating that there are no arguable grounds to be advanced. Counsel

concludes that the appeal is without merit. The brief meets the requirements of Anders v.

California, 386 U.S. 738 (1967). See In re R.R., No. 04–03–00096–CV, 2003 WL 21157944, at

*4 (Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.) (applying Anders procedure in

appeal from termination of parental rights); see also In re D.E.S., 135 S.W.3d 326, 329 (Tex.

App.—Houston [14th Dist.] 2004, no pet.) (same).

Counsel provided appellant with a copy of the brief. Tommi Jo was informed of her right

to review the record and advised of her right to file a pro se brief. On May 27, 2014, Tommi Jo

filed a pro se brief.

After reviewing the record, counsel’s brief, and Tommi Jo’s brief, we agree that the appeal

is frivolous and without merit. We, therefore, turn to the merits of Gerald’s claim. -6- 04-14-00092-CV

B. Termination as to Gerald

In making a determination of the best interest of the child, the court considers direct

evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re N.R.T.,

338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.) (citing In re S.H.A., 728 S.W.2d 73,

86–87 (Tex. App.—Dallas 1987, writ ref’d n.r.e.)).

When the Department removed the children from the home, Gerald’s children were only

eighteen-months and six-months-old, and both were under three-years-old when the case was

called for the termination hearing. The record is not clear as to whether Gerald ever met his

children. In fact, the children remained in the Department’s custody the entire time Tommi Jo was

incarcerated, without any contact from Gerald.

We are also cognizant that Gerald, who originally denied paternity, had numerous arrests

for driving while intoxicated and a history of family violence with both Tommi Jo and a previous

relationship. Within six weeks of Tommi Jo’s release from jail, Gerald was again arrested based

on family violence allegations. The trial court noted the “chaos and turmoil that led to the children

being neglected” was no better ten months later. We conclude there was sufficient evidence to

support the trial court’s determination that Gerald could not provide a safe home and that the home

in Del Rio lacked stability.

Additionally, Gerald did not provide any proof that a single program within his service

plans was completed. Although Gerald testified that he was unable to make contact with the

caseworker; the trial court, as the factfinder, is the sole judge of credibility of the witnesses. See

In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005) (explaining that witness credibility issues that

depend on appearance and demeanor of the witness lie solely within the factfinder’s province).

Here, the trial court noted the service plan contained all of the phone numbers, contact information,

and services available. After ten months and six hearings, the trial court found no basis for -7- 04-14-00092-CV

extraordinary circumstances to further delay the proceedings; and, further, had Gerald attempted

to work with the Department, the situation might be very different.

Considering the entire record “in the light most favorable” to the trial court’s findings, we

conclude the evidence supports the trial court’s determination that termination of Gerald’s parental

rights was in the children’s best interests. TEX. FAM. CODE ANN. § 161.001(2); In re J.O.A., 283

S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.

CONCLUSION

Having reviewed the entire record, we conclude the evidence is legally and factually

sufficient for the trial court to form a firm belief or conviction that terminating Tommi Jo and

Gerald’s parental rights was in the children’s best interests.

The judgment of the trial court is affirmed. We further grant Tommi Jo’s counsel’s motion

to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.); Bruns

v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).

Patricia O. Alvarez, Justice

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