in the Interest of C.M., J.G., and A.G., Children

• Court: Court of Appeals of Texas
• Decided: August 29, 2013
• Docket: 10-13-00080-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00080-CV

IN THE INTEREST OF C.M., J.G., AND A.G., CHILDREN

From the 74th District Court McLennan County, Texas Trial Court No. 2011-1457-3

MEMORANDUM OPINION

Theresa G. appeals from the trial court’s judgment terminating her parental

rights to her three children, C.M., J.G., and A.G. The trial court entered a judgment of

termination based upon a jury verdict. The jury charge set out three grounds for

terminating Theresa’s parental rights (1) knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endanger the children (2)

engaged in conduct or knowingly placed the children with persons who engaged in

conduct that endangers the children, and (3) failure to comply with a court order. TEX.

FAM. CODE ANN. § 161.001 (1) (D) (E) (O) (West Supp. 2012). The jury found by clear

and convincing evidence that one or more of the alleged grounds for termination was established and that termination was in the best interest of the children. We affirm the

trial court’s judgment terminating Theresa’s parental rights to C.M., J.G., and A.G.

Standard of Review

In three issues Theresa argues that the evidence is legally and factually

insufficient to support the jury’s findings on each of the three grounds for termination.

Only one predicate act under section 161.001(1) is necessary to support a judgment of

termination in addition to the required finding that termination is in the child's best

interest. In re A.V., 113 S.W.3d 355, 362 (Tex.2003). In conducting a legal sufficiency

review in a parental termination case:

[A] court should look at 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. To give appropriate deference to the factfinder's conclusion and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002)) (emphasis in J.P.B.).

In a factual sufficiency review,

[A] court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.... [T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record,

In the Interest of C.M., J.G., and A.G., Children Page 2 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.F.C., 96 S.W.3d 256, 266-67 (Tex.2002) (quoting In re C.H., 89 S.W.3d 17, 25

(Tex.2002)) (internal footnotes omitted) (alterations added).

Facts

Theresa lived with her husband, Tony,1 and their children J.G. and A.G.

Theresa’s daughter, C.M.2 also lived in the home. The Texas Department of Family and

Protective Services received a referral alleging sexual abuse of C.M., who was five

years-old at the time, by her step-father, Tony. C.M. was staying with Richard, her

biological father, and she told another relative that it “burned when she went to go pee

pee” and that Tony “touched her between her legs and used his two fingers.” Richard

reported the incident to the police, and the police made the referral to the Department.

Rachel Richardson, with the Department, testified at trial that after receiving the

referral, she met with C.M. and that C.M. stated that Tony touched her private area

with “two hands.” Richardson then arranged a forensic interview of C.M. Richardson

further testified that she met with Theresa concerning the allegations. Theresa stated

that she did not believe C.M. was telling the truth. Theresa also said that C.M. had

previously told her she had pain in her private area. Theresa put “rash cream” on

C.M.’s private area, but did not take her to the doctor. Richardson also spoke with the

1 Tony is also referred to as Jose in the record.

2C.M.’s father, Richard is not a party to this appeal. Tony, the father of J.G. and A.G. is also not a party to this appeal.

In the Interest of C.M., J.G., and A.G., Children Page 3 principal at C.M.’s school. Theresa had told the principal that she believed Tony over

her daughter.

Richardson testified that the three children were initially placed with a family

friend, Eliza Chaves. Theresa was allowed to visit the children with supervision by

Chaves. During one of the visits, Theresa and her grandmother tried to get C.M. to

recant the allegation by telling C.M. that Tony and Theresa would both go to jail. C.M.

became upset and started crying. After that visit, Chaves stated that she could no

longer care for the children. Richardson testified that after that visit, she believed the

children were in immediate danger. The children were then removed and placed in

foster care.

Dr. Ann Sims testified that she examined C.M. and that C.M. said that Tony hit

her and Theresa. C.M. also told Dr. Sims that Tony put his hand inside of her “coniche”

which was the word C.M. used to refer to her front private area. C.M. held up her

finger to demonstrate to Dr. Sims how Tony touched her “coniche,” and C.M. told Dr.

Sims it hurt when he touched her. Dr. Sims further testified that C.M. said Tony took

all of her clothes off and then took pictures of her. Dr. Sims stated that the physical

exam of C.M. was consistent with the outcry.

Dr. Sims also testified that she examined J.G., who was two years-old at the time.

J.G. was not able to talk to Dr. Sims, but she did interact and engage with the doctor.

Dr. Sims would call out a body part, and J.G. would point to that body part. When Dr.

Sims said “coniche,” J.G. pointed to her front private area. Dr. Sims stated that J.G. was

a happy and smiling child. However, when Dr. Sims removed J.G.’s diaper for the

In the Interest of C.M., J.G., and A.G., Children Page 4 genital exam, she was “a totally different child.” Dr. Sims testified that the smile

disappeared and J.G. never squirmed or moved. J.G.’s legs became “flaccid” and she

spread her legs apart after Dr. Sims removed the diaper. J.G.’s behavior caused Dr.

Sims to be concerned that J.G. had suffered abuse.

Detective Ann Cyr, with the Waco Police Department, testified that she

investigated the criminal proceeding involving C.M. and J.G. Tony was convicted of

aggravated sexual assault and two counts of indecency with a child as a result of that

criminal proceeding. Detective Cyr testified that Theresa told her “she refuses to

believe that it [abuse] happened.”

Theresa testified at trial that she was a victim of sexual abuse as a child. Theresa

was molested at the age of six, and the abuse continued until she was eighteen. Theresa

admitted that she told Richardson she did not believe C.M. and that she told the

principal she did not believe C.M. The service plan for Theresa provided that she was

to sever ties with Tony. Theresa testified at trial that she continued to write letters to

Tony and that she went to the jail where Tony was being held, but she waited in the

parking lot while her cousin went in to see Tony. Theresa admitted that she sent

messages to Tony through her cousin that she loved Tony, but she could not come in

because of the Department. She also sent a message that the Department could not

keep her from Tony.

Section 161.001 (E) of the Texas Family Code allows termination of the parent-

child relationship if the parent, “engaged in conduct or knowingly placed the child with

persons who engaged in conduct which endangers the physical or emotional well-being

In the Interest of C.M., J.G., and A.G., Children Page 5 of the child.” TEX. FAM. CODE ANN. 161.001 (E) (West Supp. 2012). "Endanger" means

"to expose to loss or injury; to jeopardize." Texas Department of Human Services . v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987). It is beyond question that sexual abuse is conduct that

endangers a child's physical or emotional well-being. See In re King, 15 S.W.3d 272, 276

(Tex.App.—Texarkana 2000, pet. denied). Parental knowledge that an actual offense

has occurred is not necessary; it is sufficient that the parent was aware of the potential

for danger and disregarded that risk. See In re Tidwell, 35 S.W.3d 115, 118 (Tex. App.—

Texarkana 2000, no pet.).

Theresa refused to believe the allegations of sexual abuse against Tony. She

called C.M. a liar and made C.M. cry while trying to get her to recant the allegation of

abuse. Richardson testified that Theresa’s behavior was emotionally abusive. There

was evidence presented at trial that Theresa was aware Tony took inappropriate

pictures of C.M.

Theresa continued to have contact with Tony, and she showed no ability to be

able to protect the children from abuse. Detective Cyr testified that Theresa told

inconsistent stories during the criminal investigation. Detective Cyr believed that

Theresa was not protective of her kids, but was protecting Tony.

Dr. James Shinder, a psychologist, testified that Theresa “has dealt with more

tragedy, trauma and disaster than any person should ever have to deal with in three

lifetimes.” Dr. Shinder explained in detail Theresa’s past sexual abuse and how she

continues to get involved with persons who engage in sexual abuse. Dr. Shinder

In the Interest of C.M., J.G., and A.G., Children Page 6 testified that “She has so many problems that I had – I ultimately had to conclude that it

is not possible for her to be viewed as an independent parental resource.”

Dr. William Lee Carter, a psychologist, reviewed the psychological evaluation of

Theresa. Dr. Carter testified that Theresa’s testing showed “considerable disturbance

and disruption in her emotional functioning.” Dr. Carter testified that it appeared that

Theresa was aware that Tony sexually abused the children because C.M. reported that

her mom saw Tony touching J.G. and said “get out of my baby.”

After reviewing all of the evidence, we find that a reasonable finder of fact could

have formed a firm belief or conviction that Theresa endangered the physical or

emotional well-being of the children TEX. FAM. CODE ANN. § 161.001(1)(E) (West Supp.

2012). Theresa was not supportive of C.M. as a sexual abuse victim and did not believe

that sexual abuse of C.M. or J.G. occurred. See K.M. v. Texas Dept. of Family and

Protective Services, 388 S.W.3d 396, 399 (Tex.App.-El Paso 2012, no pet.). Theresa was

emotionally abusive in trying to get C.M. to recant the allegation of abuse. Theresa was

also unable to adequately protect the children from abuse. The evidence is legally and

factually sufficient to support the finding that Theresa endangered the physical or

emotional well-being of the children. We overrule the second issue. There is no

challenge to the sufficiency of the evidence to support the finding that termination was

in the best interest of the children. Because the evidence is sufficient to support one

ground of termination under TEX. FAM. CODE ANN. § 161.001 (1), we need not address

the first and third issues.

In the Interest of C.M., J.G., and A.G., Children Page 7 Conclusion

We affirm the trial court’s judgment.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed August 29, 2013 [CV06]

In the Interest of C.M., J.G., and A.G., Children Page 8