in the Interest of C.D., a Child

Court of Appeals of Texas

in the Interest of C.D., a Child

Court of Appeals of Texas·Decided September 17, 2013·No. 05-13-00569-CV·Published

Opinion

AFFIRM; Opinion Filed September 17, 2013.

S In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00569-CV

IN THE INTEREST OF C.D., A CHILD

On Appeal from the 304th Judicial District Court Dallas County, Texas

Trial Court Cause No. JD-08-00440-W

MEMORANDUM OPINION

Before Justices Lang, Myers, and Evans Opinion by Justice Myers

A.D. appeals the trial court’s judgment terminating his parental rights to his child, C.D.

Appellant brings one issue on appeal contending the evidence is factually insufficient to support the jury’s finding that termination was in the best interest of the child. We affirm the trial court’s judgment.

BACKGROUND

Appellant met N.D. in a program helping persons leaving jail. Appellant had been jailed for a drug offense. Appellant and N.D. married, and their child, C.D., was born in 2002. In 2004, N.D. began doing drugs and drinking, and appellant left with C.D. When appellant lost his job due to missing work caring for C.D., he turned to selling drugs to make money.

In 2008, appellant was stopped for a traffic violation while C.D. was in the car. The police officers found cocaine in the car and arrested appellant in front of C.D. C.D. was placed

in foster care. Appellant was indicted for possession with intent to deliver four grams or more of cocaine, and he was placed on deferred adjudication community supervision for five years. 1 Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services (CPS) required appellant and N.D. to complete services in order to regain custody of C.D. When appellant and N.D. failed to complete the services, CPS brought suit to terminate appellant’s and N.D.’s parental rights. On the eve of trial, a relative was found who was willing to take custody of C.D., and the termination case did not proceed. C.D.’s third cousin, Cristal Joslin, and her friend, Roger Weems, became the managing conservators for C.D. with appellant and N.D. being possessory conservators.

While on community supervision, appellant continued to sell drugs. Appellant was charged with two counts of delivery of cocaine committed in 2009, retaliation committed in 2009, and possession of cocaine with intent to deliver committed in May 2011. In October 2011, appellant pleaded guilty to these offenses, and his guilt was adjudicated in the 2008 case. Appellant was sentenced to ten years’ imprisonment in the four drug cases and five years’ imprisonment in the retaliation case. Appellant’s expected release date is in 2015, but his release could be as late as 2021.

In 2009, while in Joslin and Weems’s care, C.D. was diagnosed with Type 1 juvenile diabetes. This medical condition requires close monitoring of C.D.’s diet, blood-sugar levels, and ketone levels and regular insulin injections. While in Joslin’s care, C.D.’s diabetes was not under control. C.D. also was admitted to mental hospitals a few times. Later, Joslin and Weems separated, and C.D. was left in Joslin’s sole care. Joslin was not able to care for C.D. adequately on her own while working to support herself and C.D. In early 2012, Joslin told CPS she could

1 It is not clear from the evidence whether appellant’s indictment, deferred adjudication, and subsequent conviction for possession with intent to deliver arose from the incident when C.D. was in the car or from another incident in 2008.

no longer care for C.D. Joslin dropped off C.D. and her belongings at CPS, which placed C.D. in foster care. CPS then filed suit to terminate appellant’s and N.D.’s parental rights. While in foster care, C.D.’s blood sugar and ketone levels were better controlled, and her emotional stability improved. C.D. has not been in any mental hospitals since being placed in foster care.

At trial, numerous witnesses, including C.D.’s endocrinologist, testified that stability was important for C.D. to manage her diabetes, and the best stability would come from a permanent family through adoption instead of foster care. A video recording of C.D. was played for the jury in which C.D. stated she wanted to be adopted but still wanted to have contact with her biological parents and her maternal grandmother. CPS caseworkers testified that two families were interested in adopting C.D. C.D. had previously lived with one of the families and liked them. C.D.’s current foster family does not intend to adopt her but is committed to caring for C.D. until she is adopted or reaches adulthood. CPS cannot guarantee that C.D. would remain with that foster family if she is not able to be adopted.

BEST INTEREST OF THE CHILD In his sole issue on appeal, appellant contends the evidence was factually insufficient to support the jury’s finding that termination of appellant’s parental rights was in C.D.’s best interest.

The involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re T.A.D., 397 S.W.3d 835, 838 (Tex. App.—Dallas 2013, no pet.). To terminate parental rights, the trier of fact must find, by clear and convincing evidence, that the parent has committed one of the acts prohibited under section 161.001(1) of the Texas Family Code and that termination of parental rights is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2012); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). 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.” FAM. § 101.007 (West 2008).

In reviewing termination findings for factual sufficiency of the evidence, we consider and weigh all of the evidence. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). But we give due deference to the fact finder’s resolution of factual questions. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). We then determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.

Before terminating a parent’s rights, the fact finder must find, in addition to one of the statutory grounds, that terminating the parent’s rights is in the child’s best interest. See FAM. § 161.001(2). In determining whether terminating the parent-child relationship is in a child’s best interest, we must consider the following factors:

1. the child’s desires;

2. the child’s present and future emotional and physical needs;

3. the present and future emotional and physical danger to the child;

4. the parenting abilities of the persons seeking custody;

5. the programs available to the persons seeking custody to help promote the best interest of the child;

6. the plans for the child by those persons seeking custody;

7. the stability of the home or proposed placement;

8. the acts or omissions of the parent which 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).

The Child’s Desires

Stacy Grant, a child protective safety specialist with CPS, and Melissa Tyra, a CASA 2 volunteer, both testified C.D. told them she wanted to be adopted. A video recording was played for the jury in which C.D. stated she wanted to be adopted. C.D. also stated she wanted to be able to have continued contact with her mother and grandmother as well as appellant. Grant testified that an open adoption allowing C.D. continued contact with her biological family was possible.

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