in the Interest of D.P.R.V, Children

• Court: Court of Appeals of Texas
• Decided: May 26, 2010
• Docket: 04-09-00644-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00644-CV

IN THE INTEREST OF D.P.R.V., D.T.V., and M.K.S.

From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 08-09-00153-CVK Honorable Fred Shannon, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice

Delivered and Filed: May 26, 2010

AFFIRMED

This is an appeal from the trial court’s order denying appellant’s motion for new trial,

following the trial court’s order terminating appellant’s parental rights to her three children. We

affirm.

GROUNDS FOR TERMINATION

Following a September 2009 jury trial, the trial court terminated appellant’s parental rights

on the grounds that appellant: (1) knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endanger the physical or emotional well-being of the children; (2)

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; and (3) failed to comply with the 04-09-00644-CV

provisions of a court order that specifically established the actions necessary for appellant to obtain

the return of the children who have been in the permanent or temporary managing conservatorship

of the Department of Family and Protective Services (“DFPS”) for not less than nine months as a

result of the children’s removal from the parent under Chapter 262 for the abuse or neglect of the

children. See TEX . FAM . CODE ANN . §161.001(1)(D), (E), (O) (Vernon Supp. 2010).

In her motion for new trial, appellant challenged the sufficiency of the evidence in support

of only the first and third grounds for termination. On appeal, appellant again raises a sufficiency

challenge to these same two grounds. However, in neither her motion for new trial, nor on appeal,

does appellant challenge the sufficiency of the evidence in support of the second ground for

termination. Only one predicate finding under section 161.001(1) is necessary to support a judgment

of termination when there is also a finding that termination is in the child’s best interest. In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003); In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000,

no pet.); see also TEX . FAM . CODE ANN . § 263.405(i) (Vernon 2008) (“The appellate court may not

consider any issue that was not specifically presented to the trial court in a timely filed statement of

the points on which the party intends to appeal or in a statement combined with a motion for new

trial.”). Because the one unchallenged finding will support the order of termination, it is unnecessary

to review appellant’s legal and factual sufficiency arguments as to the other two grounds.

BEST INTEREST

Appellant also challenges the legal and factual sufficiency of the evidence in support of the

trial court’s finding that termination was in the children’s best interest. TEX . FAM . CODE ANN .

§161.001(2).

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To determine whether involuntary termination of the parent-child relationship is in a child’s

best interest we 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 parental abilities of the individuals seeking custody; (5) the programs available to those

seeking custody to help promote the best interest of the child; (6) the plans those seeking custody

have for the child; (7) the stability of the home or proposed placement; (8) the acts or omissions of

the parent that may indicate that 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). Although not an exhaustive list, the Holley factors focus on the best interest of the child

rather than the best interest of the parent. See TEX . FAM . CODE ANN . § 153.002 (Vernon 2008)

(“primary consideration” is “the best interest of the child”). In addition to the Holley factors, a

parent’s inability to provide adequate care for the child, lack of parenting skills, poor judgment, and

repeated instances of immoral conduct may also be considered when looking at best interest. In re

C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.).

Although evidence of acts or omissions under section 161.001(1) does not relieve the DFPS

from proving the best interest of the child, the same evidence may be probative of both issues. In

re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Therefore, we may consider the evidence underlying the

three grounds for termination in considering whether termination is in the children’s best interest.

At the time of the 2009 trial, appellant’s son D.P.R.V. was thirteen, her other son D.T.V. was twelve,

and her daughter M.K.S. was seven. DFPS first became involved with the family in August 2001

on charges that D.P.R.V.’s father (Fernando) sexually assaulted him. D.P.R.V. was five years old

at the time of the investigation. Although appellant signed a safety plan that provided she would not

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allow the child to have any contact with his father and despite her concerns that Fernando might

continue to abuse “the boys,” she eventually allowed Fernando to have contact with D.P.R.V.

because he “wanted to see his son.”

When appellant was told that D.T.V. had brought razor blades to school, appellant said she

did not know where he got the blades. Appellant said D.T.V. had a close relationship with Fernando,

his father, and D.T.V. denied ever having been sexually assaulted by Fernando. In March 2007,

M.K.S. showed her substitute teacher’s assistant a small screw driver. When the teacher asked her

where she had gotten the object, M.K.S. pointed to her “bottom” and said her brother put it there.

Appellant testified D.P.R.V. admitted to her he had put the screwdriver in M.K.S.’s underwear, but

he denied inserting it into her rectum. M.K.S. made an outcry of sexual abuse by appellant’s

boyfriend, who was living with the family at the time. Appellant did not know how many times he

had assaulted M.K.S. because appellant “was so distraught [she did not] remember it.”

M.K.S. and D.T.V. originally were placed in a foster home, and D.P.R.V. was placed in a

residential treatment facility. D.T.V. told his foster mother that D.P.R.V. had asked D.T.V. to

perform oral sex on him. D.T.V. admitted he kissed M.K.S. M.K.S. told her foster mother she was

taken out of school because she had a screwdriver in her “cookie,” which is what she called her

vagina. M.K.S. also told her foster mother that D.P.R.V. would get her to perform oral sex on him.

On appeal, appellant alleges the children want to return home. D.P.R.V. testified he wanted

to be with his family. M.K.S. did not testify, but Megan McPheron, a therapist at the Children’s

Shelter, Residential Treatment Center (“RTC”), testified M.K.S. was at the RTC because her

aggressive behavior was too difficult to manage in a foster home. According to McPheron, M.K.S.

said her mother was mean and she does not want to return home to her mother because she does not

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trust her. McPheron also said M.K.S. did not want to go home because she was afraid and did not

trust her mother to take care of her. Nothing in the record indicates the desires of D.T.V.

In further support of her argument that return of the children to her is in their best interest,

appellant points to evidence that the children have been in numerous placements because of their

behavioral problems since they were taken from her care. Joannie Garcia, a court-appointed special

advocate for the children, testified she visited with the children over a period of about eighteen

months, and during this time, the children were in and out of therapy, and sexual abuse counseling

only began towards the end of her time with the children. Appellant also relies on the testimony of

her therapist, Dr. Gloria Fondren, who testified she did not believe appellant would repeat her past

bad choices with men; however, she was concerned about the children acting aggressively or

sexually acting out with each other. Dr. Fondren voiced her concern that appellant needed to learn

to rely on herself instead of relying on men to help her. Dr. Fondren believed appellant should have

supervised visitation with her children, but she did not believe the children currently could be safely

reunited with appellant.

Katherine Elseth, a DFPS caseworker, did not believe the children could be safely placed

with appellant for several reasons. Appellant’s utilities had been turned off, and she has not

followed through with putting up doors inside her home and otherwise implementing a plan to keep

the children safe. Appellant works from 9:00 a.m. in the morning until 10:00 p.m. at night, and has

yet to change her work schedule to be home with the children. Elseth said all the children displayed

extreme behavioral problems, and she was concerned about them all living together in the same

environment if that environment was not sufficiently structured. Elseth explained it was difficult

to facilitate family therapy for the first eight months of the case because appellant did not attend her

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own counseling sessions and because the children’s therapist would not recommend family

counseling. Although appellant has started to comply with therapy, Elseth did not believe she has

demonstrated the permanent changes necessary to demonstrate that the children could safely return

to her care.

Elseth said D.P.R.V. would continue to receive individual counseling as well as group

therapy for his anger management and sexual issues. Given the sexual abuse allegations against

D.P.R.V., Elseth believed his current placement in a residential treatment center was best for him

because it was a very structured environment. Elseth did not believe going home to his family was

in his best interest because he would not receive the structure he needs at home or the services he

is currently receiving. She also believed he might be a physical threat to himself or others, and he

might re-offend. She did not think D.P.R.V. was immediately adoptable, and given his age, adoption

was probably not feasible. Elseth believed D.T.V. needed to continue therapy because he lacked

coping skills and he exhibited self-harming behavior such as biting himself and banging his head

against a wall. He also exhibited aggression towards others. For these reasons, Elseth believed

D.T.V. also should remain in a highly structured environment. She did not believe appellant could

provide such a structure. Finally, as to M.K.S., Elseth was particularly concerned about M.K.S.

being in the same home as D.P.R.V. Elseth said appellant’s plan to keep the children safe was to

sleep in the middle of the trailer with M.K.S. at one end and the boys at the other end. Elseth

believed D.T.V. and M.K.S. could be adopted in the future.

Elseth’s greatest fear for the children if they were returned to appellant was that D.P.R.V.

would offend again and M.K.S. would be sexually abused again. Because appellant did not live in

San Antonio, she has no current transportation, and the closest appropriate services for the children

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are in San Antonio, Elseth was concerned the children would not receive the psychiatric care they

needed. She also thought appellant might not be able to afford utilities or food, and appellant might

not follow through with receiving assistance from Medicaid. In Elseth’s opinion, after almost two

and one-half years, appellant still had not demonstrated an understanding of how to care for her

children.

Appellant testified she would protect her children by not having any relationships with men

and she would not bring men into her home. Appellant said she would monitor her children “24/7”

and keep them separated by putting up three doors inside the home, and she would put contact alarms

on all the doors. Appellant stated she would continue to live in Falls City, and although she knew

the children needed continued counseling, she has not investigated the availability of counseling for

the children in Falls City.

Evidence about placement plans and adoption are relevant to best interest. In re C.H., 89

S.W.3d at 28. However, the lack of evidence on definitive plans for permanent placement and

adoption cannot be the dispositive factor; otherwise, determinations regarding best interest would

regularly be subject to reversal on the sole ground that an adoptive family has yet to be located. Id.

Instead, the inquiry is whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent’s rights would be in the child’s best interest, even

if the agency is unable to identify with precision the child’s future home environment. Id. We

conclude that on this record the jury could reasonably have formed a firm conviction or belief that

termination of appellant’s rights would be in the children’s best interest.

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APPELLANT’S COMPLAINTS REGARDING TRIAL COURT’S ABILITY TO HEAR THE TERMINATION SUIT

The children were removed from appellant’s care in March 2007. The underlying case was

tried based upon the DFPS’s petition for conservatorship and termination of parental rights filed on

September 30, 2008. It is unclear from the record, but apparently the DFPS had filed an earlier

petition that was dismissed for failure to comply with the time lines set forth in Family Code section

263.401. On the same day as the dismissal, the DFPS filed its underlying September 2008 petition.

The adversary hearing on this petition was held in September 2009.

On appeal, appellant contends there were no new grounds upon which DFPS could file its

September 2008 petition after the first dismissal of the case. Appellant first points to Family Code

section 262.107, which requires the trial court to order the return of the child at the initial hearing

regarding a child taken into possession without a court order by a governmental entity unless the

court is satisfied that “there is a continuing danger to the physical health or safety of the child if the

child is returned to the parent . . . .” TEX . FAM . CODE ANN . § 262.107(b) (emphasis added).

Appellant then relies on In re Cochran, 151 S.W.3d 275, 280 (Tex. 2004) for her contention that

there was no new act upon which DFPS could file its September 2008 petition because the children

had been in the care of DFPS since 2007. Because, according to appellant, any risk to the health or

safety of her children would have resulted from their care while under the DFPS’s temporary

managing conservatorship, and not while they were in her care, there was no continuing danger to

the physical health or safety of the children caused by an act or failure to act by her. Based on this

argument appellant concludes the trial court did not have jurisdiction over the case to grant

temporary orders.

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We disagree with appellant’s argument for two reasons. First, we do not agree with

appellant’s characterization of her complaint as a challenge to the trial court’s jurisdiction. A trial

court’s jurisdiction over a parental-rights-termination case does not depend on a finding that “there

is a continuing danger to the physical health or safety of the child if the child is returned to the

parent.” Nor does the court’s jurisdiction depend on whether there exists a new act upon which

DFPS could file its petition for termination. Instead, appellant’s complaints go to the sufficiency of

the evidence in support of the trial court’s finding that there was a danger to the physical health or

safety of the children caused by an act or failure to act by appellant. See In re Cochran, 151 S.W.3d

at 280 (holding that “[o]ther evidence in the record, like the evidence of prior terminations, simply

does not illustrate that an act or failure on the part of the parents posed a danger to [child’s] physical

health or safety.”). Second, both appellant and her attorney signed an Agreed Temporary Order

Following Adversary Hearing, which contains the court’s finding that there was a continuing danger

to the physical health or safety of the children caused by an act or failure to act by appellant. Neither

in her motion for new trial, nor on appeal, does appellant contend her agreement to the temporary

order was involuntary or unknowing. Therefore, we conclude her argument is without merit.

Appellant also asserts none of the children were residing in Karnes County, which is where

the petition was filed, because the children had been in placement since 2007 in other counties.

Appellant did not file a motion to transfer venue or any other objection to venue. And again, we note

appellant and her attorney both signed the Agreed Temporary Order Following Adversary Hearing.

Therefore, appellant has waived any objection to venue.

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CONCLUSION

We overrule appellant’s issues on appeal and affirm the trial court’s judgment.

Sandee Bryan Marion, Justice

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