in the Interest of C.B., V.B.

• Court: Court of Appeals of Texas
• Decided: July 25, 2002
• Docket: 01-01-00117-CV
• Status: Published

Opinion

Opinion issued July 25, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00117-CV

____________

IN THE INTEREST OF C.B. AND V.B., MINOR CHILDREN

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 6028J

O P I N I O N

Abel Perez Leija (Leija) ⁽¹⁾ appeals the final judgment terminating his parental rights as to C.B. and V.B., minor children. In his sole point of error, Leija argues the evidence was legally and factually insufficient to support the trial court's implied finding that the termination of his parental rights was in the best interest of the children. ⁽²⁾

Case Background

On August 23, 2000, the Texas Department of Protective and Regulatory Services (TDPRS) filed its original petition to terminate the parental rights of Angela Lynette Bentley and Leija. On November 17, 2000, Bentley signed and filed an irrevocable affidavit of voluntary relinquishment of parental rights. ⁽³⁾ Also on November 17th, the trial court heard the case and ordered the parental rights of Bentley and Leija to be terminated. The decree of termination was entered on December 7, 2000. Leija timely appealed the trial court's order.

Preservation of Error

As a threshold issue, TDPRS contends Leija waived his challenge to the sufficiency of the evidence because he did not file a motion for new trial or a motion for instructed verdict challenging the trial court's finding that the termination of his rights was in the best interest of the children. See Tex. R. App. P. 33.1 (complaint on appeal must comport with complaint made at trial court). TDPRS relies on In re J.M.S., 43 S.W.3d 60 (Tex. App.--Houston [1st Dist.] 2001, no pet.), in support of its argument. We held in J.M.S. that, after a jury trial, because the appellant did not file a motion for new trial, he had not preserved his challenge to the factual sufficiency for appellate review. Id. at 62; see also Tex. R. Civ. P. 324.

Rule 324 provides that, as a prerequisite for review on appeal, a motion for new trial is not required in a jury or nonjury case, except where the appellant complains about the factual insufficiency of the evidence to support a jury finding, or he complains that the jury finding is against the overwhelming weight of the evidence. Tex. R. Civ. P. 324(a), (b)(2)-(3); see also In re Marriage of Parker, 20 S.W.3d 812, 816 (Tex. App.--Texarkana 2000, no pet.) (holding motion for new trial is not required in nonjury case); Vannerson v. Vannerson, 857 S.W.2d 659, 677 n.8 (Tex. App.--Houston [1st Dist.] 1993, writ denied) (same). Here, because the case was tried to the trial court, Leija was not required to file a motion for new trial to contest the factual sufficiency of the trial court's findings. Furthermore, when appealing from a non-jury trial, an appellant is not required to preserve allegations of legal or factual insufficiency. O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 248 (Tex. App.--San Antonio 1998, pet. denied).

Thus, we address Leija's challenge to the sufficiency of the evidence.

Sufficiency of the Evidence

Leija only challenges the sufficiency of the evidence as to the trial court's finding that termination of his parental rights was in the best interest of the children. Therefore, we do not address the trial court's findings under section 161.001(1) that he knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, and he engaged in conduct, or knowingly placed the children with persons who engaged in conduct, which endanger the physical or emotional well-being of the children.

Leija contends the trial court's finding was improper because of the following: (1) the testimony of TDPRS's caseworker was cursory and conclusory; (2) there was no evidence of the caseworker's qualifications; (3) there was no evidence as to why placement with relatives would not be better than termination; (4) the testimony of the guardian ad litem was conclusory; (5) there was no evidence of the guardian ad litem's qualifications; and (6) no mental health professionals, therapists, or other experts testified as to the best interest of the children.

The termination of parental rights involves fundamental constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). To terminate parental rights, the findings must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2002); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re K.C.M., 4 S.W.3d 392, 395 (Tex. App.--Houston [1st Dist.] 1999, pet. denied). The clear and convincing standard of proof is intentionally placed on the party seeking the termination of the parental rights, creating a higher burden due to the severity and permanence of the termination of the parent-child relationship. K.C.M., 4 S.W.3d at 395; Spurlock v. Texas Dep't of Protective & Regulatory Servs., 904 S.W.2d 152, 155 (Tex. App.--Austin 1995, writ denied). This standard requires more proof than the preponderance of the evidence standard in civil cases, but less than the reasonable doubt standard in criminal cases. In re J.N.R., 982 S.W.2d 137, 141 (Tex. App.--Houston [1st Dist.] 1998, no pet.). The clear and convincing standard is the 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 proved. K.C.M., 4 S.W.3d at 395.

The heightened burden of proof at trial does not affect the standard of review on appeal. Id.; J.N.R., 982 S.W.2d at 141; see also Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 137 (Tex. App.--El Paso 1997, no writ). In conducting a legal sufficiency review, we consider only the evidence and inferences tending to support the fact finding, and we disregard all contrary evidence and inferences. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); K.C.M., 4 S.W.3d at 395. If any evidence of probative force exists to support the finding, we will uphold the decision. K.C.M., 4 S.W.3d at 395. Edwards, 946 S.W.2d at 137. In conducting a factual sufficiency review, we will sustain a factual sufficiency challenge only if, after reviewing all the evidence, we conclude the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); K.C.M., 4 S.W.3d at 395.

To terminate parental rights, the trial court must make two findings. K.C.M., 4 S.W.3d at 394. First, the parent must have committed one of the acts prohibited under section 161.001(1) of the Texas Family Code. Tex. Fam. Code Ann. § 161.001(1) (Vernon Supp. 2002); K.C.M., 4 S.W.3d at 394. Second, termination of parental rights must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(2); K.C.M., 4 S.W.3d at 394. The trial court made findings that Leija committed acts prohibited under section 161.001(1)(D) and (E), and that termination was in the children's best interest. The decree of termination states:

The [c]ourt finds by clear and convincing evidence that the termination of the parent-child relationship between [Leija] and the children, [C.B. and V.B.], is in the best interest of the children and further that [Leija]:

has knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children.

has engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.

Leija does not contest that the trial court found statutory violations, but he does contest the finding that terminating his parental rights was in the best interest of the children.

"Best interest of the child" is to be determined from consideration of the following factors: (1) the child's desires; (2) the child's physical and emotional needs, now and in the future; (3) the emotional and physical danger to the child, now and in the future; (4) the parental ability of the individuals seeking custody; (5) the programs available to assist these individuals in promoting the child's best interest; (6) the plans for the child by the individual or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's act or omissions that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); K.C.M., 4 S.W.3d at 395. There is a strong presumption that the best interest of the child is served by keeping custody with the natural parent. K.C.M., 4 S.W.3d at 395. It is TDPRS's burden to rebut this presumption. Id.

C.B. and V.B. were born in 1997 and 1998 while Leija and Bentley were living in Mexico with Leija's mother. Bentley testified she and Leija argued frequently and Leija would hit, kick, and throw things at her when they argued. She testified Leija assaulted her in front of his mother, C.B., and V.B., and he did not care whether they saw him assault her. Bentley testified that, after she gained permission to enter the United States with C.B. and V.B., she and the children moved to Houston, and lived with Leija's brother. Bentley testified Leija then came to Houston, and he assaulted her because he was jealous of her living with his brother, and that Leija's brother never tried to stop Leija from assaulting her.

After several months, Bentley moved in with Dalia Mendez, Leija's sister. Mendez testified that, although she saw Bentley and Leija fight, they never fought in front of the children. She further testified Leija loved the children, but he was ill-tempered, and she was concerned about Leija having a drug addiction. Bentley testified Mendez kicked her out of the house because Mendez did not want Mendez's children to see Leija beat Bentley.

In February 1999, Bentley and Leija moved into an apartment. Bentley testified Leija paid little attention to the children, neglected the children when Bentley went to work, and continued to assault her. She testified Leija slapped her, punched her in the face with a closed fist, and choked her. Bentley testified that once when the children were present during an assault, they became frightened, and Leija made Bentley take off her clothes so she would not run away. Bentley, wearing only her underwear and bra, escaped to a neighbor's house with the children.

Leija was later convicted of twice assaulting Bentley. Bentley, however, was also arrested because she had outstanding warrants. Because Bentley did not want her neighbor to care for her children while she was in jail, she called TDPRS to arrange care for the children.

Bentley testified that, during their relationship, Leija bragged about his criminal history. She testified Leija sold crack cocaine since the time they met in 1994 or 1995. TDPRS also introduced into evidence records of Leija's previous convictions for aggravated assault of a police officer, ⁽⁴⁾ evading arrest, ⁽⁵⁾ failure to identify himself, ⁽⁶⁾ criminal mischief, ⁽⁷⁾ burglary, ⁽⁸⁾ and the two assaults of Bentley. ⁽⁹⁾

Karhounda Flournoy, a TDPRS caseworker, was assigned to C.B.'s and V.B.'s case. Flournoy testified, in her opinion, Leija could not provide a safe environment for the children because he sold drugs, he abused Bentley in front of the children, and the children's young ages made them particularly vulnerable to Leija's behavior. Flournoy testified she was concerned that the children could be emotionally and physically harmed if they stayed with Bentley and Leija, and that Leija had expressed little willingness or ability to provide a positive environment for the children. Flournoy testified that, based on Bentley's testimony, her experience, and the best interests of the children, Leija's parental rights should be terminated.

During cross-examination, Flournoy testified that Leija suggested the children be placed with Mendez, that the Mendez family seemed nice, that the Mendez children would accept C.B. and V.B. into their home, but that she was afraid Mendez would allow Leija to take C.B. and V.B. back to Mexico. She also testified that an order terminating Leija's parental rights did not foreclose the possibility that Leija's mother could seek custody of the children.

Cynthia McDonald, guardian ad litem for the children and an employee of Child Advocates, Inc., testified Leija's parental rights should be terminated because he was abusive, and his abusive behavior caused C.B. to be fearful of adults and created "problems" when she saw acts of violence. McDonald testified it was in the best interest of the children that Leija's rights be terminated because Leija and Bentley lack parenting skills, the family environment was not stable, and the children would be subject to emotional and physical harm.

Leija testified he loved his children, he wanted his mother or Mendez to care for C.B. and V.B. if his rights were terminated, and both his mother and Mendez were capable of caring for the children. Leija testified he did not intentionally hurt the children, he worked to provide for Bentley and the children, and he wanted his family to have the opportunity to visit the children. He testified that, even though Bentley voluntarily relinquished her parental rights, he would allow Bentley to visit the children at Mendez's house. He also testified that Bentley, and not he, made mistakes in the care of the children because she started using drugs again, he had straightened up his life, and he and Bentley argued like any other couple. Leija testified that, because he was in jail at the time of trial, and expected to be in jail for several years, he could not financially provide for the children.

Legal Sufficiency

Here, the following Holley factors are relevant in determining the best interest of the children: the present and future physical and emotional needs of the children; the present and future emotional and physical danger to the child; the parental ability of the individuals seeking custody; the stability of the home or proposed placement; the parent's act or omissions that may indicate the existing parent-child relationship is not a proper one. See Holley, 544 S.W.2d at 371-72; K.C.M., 4 S.W.3d at 394-95.

Bentley, Flournoy, and McDonald testified the fights between Bentley and Leija caused the children to become frightened; and, Flournoy testified the children could be physically and emotionally harmed if they stayed with Leija and Bentley. McDonald testified Leija lacked the requisite parenting skills to care for C.B. and V.B., and the home was not stable. Leija testified that he could not provide for the children while he was in jail. Flournoy testified that she was afraid Mendez would allow Leija to take the children to Mexico. Bentley testified Leija sold drugs, and Mendez thought Leija had a drug addiction.

Considering only the evidence and inferences tending to support the trial court's fact findings, and disregarding all contrary evidence and inferences, we conclude that the evidence was legally sufficient to support the trial court's finding that the termination of Leija's parental rights was in the best interest of C.B. and V.B. See Leitch, 935 S.W.2d at 118; Holley, 544 S.W.2d at 371.

Factual Sufficiency

Initially, Leija argues that, because there was no evidence regarding Flournoy's and McDonald's qualifications, their testimony was of slight probative value. ⁽¹⁰⁾ Flournoy testified she worked for TDPRS as a caseworker, and McDonald testified she worked for a non-profit organization and received training as part of her job. There was no further information about Flournoy's or McDonald's qualifications. The trial court, as the trier of fact, was entitled to determine the credibility and weight to give Flournoy's and McDonald's testimony. See Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.--Houston [1st Dist.] 1997, pet. denied). Leija also correctly states that no mental health professionals, therapists, or other experts testified as to the best interests of the child. Leija, however, does not provide any authority for the argument that the testimony of a mental health professional, therapist, or other expert is required to prove that termination of parental rights is in the best interest of a child.

Leija argues Flournoy's and McDonald's testimony was cursory and conclusory. We disagree. Both Flournoy and McDonald testified about Leija's abuse of Bentley, the effect of the abuse on the children, Leija's inability to care for the children because he was in jail, and the unstable living environment created by Leija and Bentley. Three witnesses testified that termination of Leija's parental rights was in the best interest of the children. Only Mendez's testimony that Leija and Bentley did not argue in front of the children conflicts with the testimony of Bentley, Flournoy, and McDonald. The trial court, as the fact finder, was free to resolve the differences in that testimony. Id.

Leija also argues that TDPRS presented no evidence as to why the children should not be placed with either Leija's mother or with the Mendez family. Flournoy testified that, although the Mendez family seemed "nice" and the Mendez children would accept C.B. and V.B. into their home, she felt placement with the Mendez family was not in the best interest of the children because she believed Mendez would allow her brother to take the children to Mexico when he was released from jail. We are also aware that neither Leija's mother nor Mendez was a party to the termination suit and did not seek custody of the children. Furthermore, Flournoy testified that, to her knowledge, nothing would prevent either Leija's mother or Mendez from seeking custody of the children. We consider this testimony with Flournoy's testimony that C.B. and V.B. were good candidates for adoption and that at least two families were interested in adopting them at the time of the trial. Considering all of the evidence, we conclude the trial court's finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); K.C.M., 4 S.W.3d at 395.

Conclusion

We affirm the judgment.

Frank C. Price

Justice

Panel consists of Justices Hedges, Jennings, and Price. ⁽¹¹⁾

Do not publish. Tex. R. App. P. 47.

1.

Leija is also known as Abel Liega Perez, Angel Perez, and Regalio Perez.

2.

See Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp. 2002).

3.

Bentley is not a party to the appeal.

4.

See Tex. Penal Code Ann. 22.02 (Vernon 1994).

5.

See Tex. Penal Code Ann. 38.04 (Vernon Supp. 2002).

6.

See Tex. Penal Code Ann. 38.02 (Vernon 1994).

7.

See Tex. Penal Code Ann. 28.03(a)(1) (Vernon Supp. 2002).

8.

See Tex. Penal Code Ann. 30.02 (Vernon Supp. 2002).

9.

See Tex. Penal Code Ann. 22.01 (Vernon Supp. 2002).

10.

Leija does not argue that Fluornoy's and McDonald's testimony was improperly admitted because they were not qualified to offer opinion testimony.

11.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.