in the Interest of Crystal Princes Rendon, Children

• Court: Court of Appeals of Texas
• Decided: September 22, 1999
• Docket: 04-98-00340-CV
• Status: Published

Opinion

No. 04-98-00340-CV IN THE INTEREST OF A.R., M.T., R.T., & M.T., Jr., Children From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 96-PA-00613 Honorable Carolyn Spears-Peterson, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. López, Justice

Karen Angelini, Justice

Delivered and Filed: September 22, 1999

AFFIRMED

Nature of the case

Andrea Rendon appeals a termination decree terminating her parental rights to A.R., M.T., R.T., and M.T., Jr. In her first and second issues, Rendon asserts that the evidence was factually insufficient to support the termination decree. In her third issue, Rendon argues that the attorney ad litem did not advocate the interests of the children. In her fourth issue, Rendon asserts that she involuntarily signed the affidavit relinquishing her parental rights. We affirm.

Factual and Procedural Background

Rendon is the biological mother of six children: C.R., D.R., A.R., M.T., R.T., and M.T., Jr. Rendon is hearing impaired and requires the use of an interpreter and sign language to communicate with others. With the exception of a few temporary jobs, Rendon's income is provided by governmental assistance programs. In addition to financial assistance, the Department of Human Services provided Rendon medical care, housing, parenting classes, instruction from a therapeutic homemaker, and counseling on such issues as birth control and family dynamics. Rendon was first referred to Child Protective Services ("CPS") in 1990. From 1990 to the time of trial, CPS had been almost continuously involved with Rendon and her children.

In 1996, the Texas Department of Protective & Regulatory Services ("TDPRS") removed the children from Rendon's home and filed an original petition in a suit affecting the parent-child relationship. The trial court appointed TDPRS as temporary managing conservator of Rendon's six children. In September of 1997, Rendon signed an affidavit supporting the appointment of Mike Brooks, the father of C.R. and D.R., as permanent managing conservator of C.R. and D.R. Rendon's parental rights to C.R. and D.R. were not terminated. In October of 1997, CPS attempted to reunify the family but concluded that it would be in the best interest of A.R. and M.T. to have Rendon's rights terminated. Before trial, Rendon executed an affidavit relinquishing her parental rights to R.T. and M.T., Jr. who had been living with their father's relatives. TDPRS proceeded to trial to terminate Rendon's parental rights to A.R. and M.T. The jury found that the parent-child relationship between Rendon and A.R. and M.T. should be terminated. On January 20, 1998, the court entered a decree of termination in which the parent-child relationship was terminated between Rendon and A.R., M.T., R.T., and M.T., Jr., who were eight, six, four, and three, respectively, at the time of trial.

Standard of Review

Involuntary termination proceedings are subject to strict scrutiny. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights can only be terminated upon a showing of clear and convincing evidence. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 1999); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). When an appellant challenges the factual sufficiency of the evidence, we use the intermediate standard of review of clear and convincing evidence. In re B.T., 954 S.W.2d 44, 46 (Tex. App.-San Antonio 1997, writ denied). In reviewing a jury's findings based on a clear and convincing standard, we determine whether sufficient evidence was presented to produce in the mind of a rational fact finder a "firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam Code Ann. 101.007 (Vernon 1996); Id. (citing In re G.M., 596 S.W.2d at 847). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Kerckhoff v. Kerckhoff, 805 S.W.2d 937, 939 (Tex. App.-San Antonio 1991, no writ). The Court of Appeals may not substitute its opinion for that of the trier of fact merely because we might have reached a different conclusion. Id.

Sufficiency of the evidence

In her first and second issues, Rendon argues that the evidence was factually insufficient to prove that she violated section 161.001(D) and (E) of the Family Code and that termination was in the children's best interest.⁽¹⁾ The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; and

(2) that termination is in the best interest of the child.

Tex. Fam. Code Ann. 161.001(1)(D)-(E), (2) (Vernon Supp. 1999). Endanger means "to expose to loss or injury; to jeopardize." Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Id. The jury was instructed to terminate the parent-child relationship if it was proven by clear and convincing evidence that Rendon violated section (D) or (E) and that termination was in the children's best interest. The jury found that the parent-child relationship should be terminated.

A review of the evidence shows that TDPRS identified five problems attributable to Rendon which endangered the physical and emotional well-being of the children. Rendon's problems included: (1) failing to provide diapers, clothing and food for her children; (2) maintaining relationships with abusive boyfriends; (3) neglecting the children's medical needs; (4) exercising poor judgment with regard to her children; and (5) failing to control her children.

CPS presented evidence of Rendon's failure to provide basic necessities for her children and of the poor living conditions in which they lived. Various social workers testified that the children wore dirty clothes, had not been bathed, and were hungry. Case workers testified that Rendon's home was dirty and the children had head lice. Rendon and her family were evicted from public housing because of the filthy condition of their apartment. Although Rendon received governmental financial assistance, she was unable to budget her money to provide the necessities for her children.

Along with poor living conditions, Rendon was involved with an abusive boyfriend, Marcos Teran, with whom she had three children: M.T., R.T., and M.T., Jr.⁽²⁾

Rendon testified that Teran hit her and the children. Teran admitted that he had hit Rendon. Bruce Orey, a CPS Specialist, testified that in February of 1991 he received a phone call from the children's day care because A.R. had a scrape across her face. Orey testified that the children told him that Teran threw a toy at A.R. Teran admitted to throwing the toy at A.R. Mark Feichtinger, an employee of TDPRS, testified that in June of 1993 he responded to a referral and discovered that D.R. had been hit in the face with a belt. According to the testimony, Teran was unemployed, stole Rendon's money, and used drugs.

The TDPRS also presented evidence that Rendon neglected the children's medical needs. In May of 1990, A.R. was taken to the hospital for a seizure which the nurse believed to have been caused by malnutrition. In October of 1990, CPS received another referral because C.R. and D.R., who were two and three at the time, had burn marks on their arms from reaching over a toaster while making toast. Case workers testified that the children had severe diaper rash and head lice. In September of 1995, CPS received a call from Rendon's neighbor because M.T. had an upset stomach. Apparently, M.T. was suffering from food poisoning because she had eaten spoiled chicken. The caseworker took M.T. to the doctor for treatment. In May of 1996, a CPS caseworker, visited the Rendon home and noticed that D.R.'s foot was extremely swollen. Rendon had not sought medical attention although she had kept D.R. home from school for several days.

Additionally, TDPRS presented evidence that Rendon exercised poor judgment. In October of 1997, CPS attempted to reunify the family. CPS returned A.R. and M.T. to Rendon and told her to remain with the girls at all times. Rendon, however, allowed M.T. to travel with Teran's family to visit Teran in prison. Rendon asserts that the visit did not endanger M.T. and that M.T. was able to spend time with her father whom she had not seen in over two years. Christina Beltran, a CPS caseworker, however, testified that Rendon exercised poor judgment in allowing M.T. to visit Teran after she had been told to stay with the girls at all times. Beltran testified that Rendon was unable to follow CPS's rules.

Lastly, TDPRS contends that Rendon is unable to control her children. Numerous witnesses testified that the children played outside unsupervised. In 1994, Rendon and her children were living at the Salvation Army Shelter. Employees at the shelter called CPS because the children were being left alone and allowed to do whatever they pleased.

Based on the foregoing evidence, we find that sufficient evidence was presented to produce in the mind of a rational fact finder, a firm belief or conviction as to the truth of the allegations that Rendon knowingly placed or allowed her children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children and engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotion well-being of the children. Thus, the evidence was factually sufficient to prove that Rendon violated section (D) and (E) of 161.001(1) of the Texas Family Code. We overrule Rendon's first issue.

Best Interest of the Children

In her second issue, Rendon claims the evidence presented was factually insufficient to prove that it was in the children's best interest for the parent-child relationship to be terminated. In addition to an affirmative finding under 161.001(1), the court must find that termination of parental rights is in the best interest of the child. Tex. Fam. Code Ann. 161.001(2) (Vernon Supp. 1999). In making this determination, the Texas Supreme Court has enumerated several factors including: the desires of the child; the present and future emotional and physical needs of the child; the present and future emotional and physical danger to the child; the parenting abilities of the individual seeking custody; the stability of the home or proposed placement; the parent's acts or omissions indicating that the existing parent-child relationship is not a proper one; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re H.C. and S.C., 942 S.W.2d 661, 664 (Tex. App.-San Antonio 1997, no writ). Rendon argues that termination is not in the best interests of A.R. and M.T. because they have expressed a desire to live with her and they have no developmental problems. Rendon claims that she does not use drugs or alcohol and has never physically abused the children.

Although evidence was presented which reflected that A.R. and M.T. expressed a desire to live with Rendon and were not suffering any severe emotional problems, the evidence showed that the physical needs of the children were inadequately met while they were living with Rendon. The problems affecting the children's physical needs include the following: unsanitary living conditions, medical neglect, failure to supervise and control, and failure to protect the children from physical abuse. Rendon testified that she is making efforts to become a better parent and is receiving training from Frances Maldonado, an employee of Disability Services of the Southwest, to learn how to cook, clean, wash clothes, and manage her money. Rendon offered the testimony of Loretta Teran, the wife of Rendon's ex-husband, to show that she was able to control A.R. and M.T. when they were the only two children in the home. The evidence showed that, in fact, Rendon had participated in many parenting classes during CPS's involvement. Beltran, however, testified that Rendon's improvements were temporary and inconsistent, and that Rendon regressed once the caseworker was reassigned from her case.

The jury found that it was in the children's best interest to terminate Rendon's parental rights. We cannot substitute our judgment as to the credibility of each witness nor the weight to be given their testimony. See Kerckhoff, 805 S.W.2d at 940. We find sufficient evidence which could produce in the mind of a rational fact finder a firm belief or conviction as to the truth of the allegation that termination of the parent-child relationship is in the best interest of A.R. and M.T. We overrule the second issue.

Attorney Ad Litem

In her third issue, Rendon argues that the children were denied representation because their

appointed attorney ad litem did not advocate their interests. In a termination case filed by a governmental entity, the court must appoint an attorney ad litem to represent the interests of the child. Tex. Fam. Code Ann. 107.012 (Vernon 1996). An attorney ad litem shall investigate the facts of the case, review copies of the child's relevant medical, psychological, and school records and interview the child and individuals with significant knowledge of the child's history and condition. See id. 107.014 (Vernon Supp. 1999).

Rendon alleges that the attorney ad litem did not advocate the wishes of A.R. and M.T. but rather advocated what the ad litem considered to be in the best interest of the children. The ad litem, in fact, argued that termination was in the children's best interest. Rendon urges that the attorney ad litem was confused about her role and acted as a guardian ad litem by advocating what she considered to be the best interest of the children. First, we note that Rendon failed to make any objections to the attorney ad litem's position that the parent-child relationship should be terminated. Several months before trial, the attorney ad litem filed a counter-petition to terminate the parent-child relationship and advocated this position during voir dire. Rendon failed to lodge any objections to statements made by the attorney ad litem during voir dire and closing argument and failed to make this complaint in her motion for new trial. Thus, Rendon complains about the attorney ad litem's position for the first time on appeal. Rule 33.1(a) of the Rules of Appellate Procedure provide: "As a prerequisite to presenting a complaint for appellate review, the record must show that: the complaint was made to the trial court by a timely request, objection or motion . . . ." Tex. R. App. P. 33.1(a)(1). Because Rendon failed to make a complaint to the trial court, the complaint is not preserved. We overrule the third issue.

Involuntary Relinquishment

In her fourth issue, Rendon argues that she involuntarily signed the affidavit of relinquishment

of her parental rights to R.T. and M.T., Jr. Rendon contends that she did not sign the affidavit voluntarily because she signed it under the undue influence and overreaching of TDPRS. See Neal v. Texas Dep't Human Servs., 814 S.W.2d 216, 219 (Tex. App.-San Antonio 1991, writ denied) (finding that affidavit signed under undue influence was involuntary). In her brief, Rendon contends that she signed the affidavit because TDPRS told her that if she did not sign the affidavit, TDPRS would file suit to terminate her parental rights to her remaining children. Rendon does not point to any testimony to support her contention that she signed the affidavit involuntarily. After reviewing the record, we find no testimony concerning the events surrounding the signing of the affidavit of relinquishment. Further, we note that Rendon failed to plead undue influence as an affirmative defense and failed to request a jury question on undue influence. Tex. R. Civ. P. 94; Tex. R. Civ. P. 278. Because no evidence exists to support Rendon's assertion that she signed the affidavit because of undue influence or overreaching, we do not find that Rendon signed the affidavit involuntarily. Thus, we overrule the fourth issue.

Accordingly, we affirm the judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. Rendon's first and second issues only pertain to the termination of her parental rights to A.R. and M.T. Because she had signed an affidavit relinquishing her rights to R.T. and M.T., Jr. before trial, no evidence was presented and no issues were submitted to the jury regarding the termination of Rendon's parental rights to R.T. and M.T., Jr.

2. Teran voluntarily relinquished his rights to R.T. and M.T., Jr. Teran sought custody of M.T. at trial but the jury found that his parental rights should be terminated. Teran is currently incarcerated and has not appealed the termination of his parental rights.