COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO.
2-04-076-CV
IN
THE INTEREST OF
G.G.
AND J.G., CHILDREN
------------
FROM
THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant
Norma G. appeals the trial court’s order terminating her parental rights to
her children, G.G. and J.G. In two points, appellant argues that (1) the
evidence is factually insufficient to support the trial court’s judgment
terminating her parental rights and (2) the trial court erred by failing to
dismiss the State’s suit affecting the parent child relationship. We affirm.
II. Background Facts
Appellant
is the mother of G.G., who is twelve years old, and J.G., who is five years old.
On August 23, 2002, after an incident in which J.G. was severely burned, the
Texas Department of Protective and Regulatory Services (TDPRS) filed a petition
to terminate appellant’s parental rights to G.G. and J.G., and the trial court
named TDPRS temporary managing conservator of the children.
Kay
Tucker became J.G.’s foster mother when he was released from the hospital on
August 29, 2002. She became G.G.’s foster mother several months later. The
case went to trial on February 24, 2004. Appellant waived her right to a jury,
and all questions of law and fact were submitted to the trial court. The trial
court signed an order terminating appellant’s parental rights to G.G. and J.G.
on March 1, 2004.2
III. Factual Sufficiency
In
her first point, appellant argues that the evidence is factually insufficient to
support the trial court’s judgment terminating her parental rights to G.G. and
J.G. Specifically, appellant challenges the trial court’s findings that (1)
appellant knowingly placed or knowingly allowed her children to remain in
conditions or surroundings which endanger the physical or emotional well-being
of the children, (2) appellant 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) termination of the parent-child
relationship between appellant and her children is in the children’s best
interest.3
A
parent’s rights to “the companionship, care, custody, and management” of
his or her children are constitutional interests “far more precious than any
property right.” Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct.
1388, 1397 (1982). “While parental rights are of constitutional magnitude,
they are not absolute. Just as it is imperative for courts to recognize the
constitutional underpinnings of the parent-child relationship, it is also
essential that emotional and physical interests of the child not be sacrificed
merely to preserve that right.” In re C.H., 89 S.W.3d 17, 26 (Tex.
2002). In a termination case, the State seeks not just to limit parental rights
but to end them permanently—to divest the parent and child of all legal
rights, privileges, duties, and powers normally existing between them, except
for the child’s right to inherit. Tex.
Fam. Code Ann. § 161.206(b) (Vernon Supp. 2004-05); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings
and strictly construe involuntary termination statutes in favor of the parent. Holick,
685 S.W.2d at 20-21; In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort
Worth 2000, pet. denied) (op. on reh’g).
In
proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one or more of the
acts or omissions enumerated under subdivision (1) of the statute and must also
prove that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon
2002); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984); Swate v.
Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). Both
elements must be established; termination may not be based solely on the best
interest of the child as determined by the trier of fact. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Termination
of parental rights is a drastic remedy and is of such weight and gravity that
due process requires the petitioner to justify termination by clear and
convincing evidence. Tex. Fam. Code Ann.
§§ 161.001, 161.206(a); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).
This intermediate standard falls between the preponderance standard of ordinary
civil proceedings and the reasonable doubt standard of criminal proceedings. G.M.,
596 S.W.2d at 847; D.T., 34 S.W.3d at 630. It is defined as the
“measure or 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
established.” Tex. Fam. Code Ann.
§ 101.007 (Vernon 2002).
The
higher burden of proof in termination cases alters the appellate standard of
factual sufficiency review. C.H., 89 S.W.3d at 25. “[A] finding that
must be based on clear and convincing evidence cannot be viewed on appeal the
same as one that may be sustained on a mere preponderance.” Id. In
considering whether the evidence of termination rises to the level of being
clear and convincing, we must determine “whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction” that the grounds
for termination were proven. Id. Our inquiry here is whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief
that the parent violated one of the conduct provisions of section 161.001(1) and
that the termination of the parent’s parental rights would be in the best
interest of the child. Id. at 28.
A. Conduct
In
the present case, appellant testified that around 2:00 p.m. on August 19, 2002,
she gave J.G. a bath after cleaning the tub with Clorox bleach. She testified
that after his bath, J.G. asked her for some milk and then went to sleep.
Appellant went to work around 6:00 that evening and left J.G. and G.G. in the
care of her boyfriend Alejandro Zapata. At around 6:30, Zapata brought both
children to appellant’s work because J.G.’s legs were red. Appellant
testified that because J.G. was wearing long pants, she could see only his feet.
She testified that J.G.’s feet were red, not blistered, and that she thought
he was having an allergic reaction. Appellant told Zapata to take J.G. home and
that they would get something for him when she got off work.
Appellant
testified that when she got home around 10:00 that evening, J.G. did not seem to
be in any pain. She applied Vaseline to his burns, changed his diaper, and put
him to bed. The next day, appellant went to work and again left the children in
Zapata’s care. The same day, she noticed that J.G. was scratching his burns,
causing his skin to come off.4
The
next day, on August 21, Zapata went to work while appellant stayed home.
Appellant called Zapata at work and told him that J.G. was getting worse and
that she was going to take him to the doctor. Zapata left work, and they took
J.G. to Cook Children’s Medical Center. Appellant testified that she had not
taken J.G. to the hospital earlier because she was afraid he was going to be
taken away from her.
Child
Protective Services (CPS) investigator Julie Nash testified that J.G.’s older
brother, G.G., gave a different account of what happened to J.G. She testified
that G.G. told her that after appellant had gone to work on August 19, Zapata
gave J.G. a bath. G.G. heard water running, some splashing, and J.G. saying
“agua, agua.” After J.G.’s bath, G.G. noticed that J.G.’s legs were red.
Kay Tucker, the children’s foster mother, testified that during play therapy,
the therapist told J.G. to pretend that he was Zapata and that a doll was
himself. Tucker testified that J.G. pretended to force the doll into a tub of
hot water while making crying noises.
Melissa
Jane Garrettson, an emergency room physician who works at Cook Children’s
Medical Center, testified that on August 21, 2002, J.G. was brought to the
center with second-degree burns over twenty-five percent of his body. J.G. was
in severe distress with an elevated heart rate, respiratory rate, and blood
pressure. According to Dr. Garrettson, J.G. was grunting and appeared to be in
significant pain. After determining that J.G.’s injuries were
life-threatening, Dr. Garrettson arranged for him to be transferred to the burn
unit at Parkland Hospital.
Dr.
Garrettson testified that appellant, who does not speak English, told a
translator that she had bathed J.G. in a tub that she had recently cleaned with
Clorox bleach. However, Dr. Garrettson testified that appellant’s explanation
was not consistent with J.G.’s injuries. She testified that there were
specific lines of demarcation between J.G.’s burned skin and normal skin,
which indicated that J.G. had been burned by being placed in hot water rather
than water containing residual Clorox bleach. Dr. Garrettson also testified that
J.G.’s buttocks were not as severely burned as his legs, which was further
evidence of an immersion burn because a ceramic or plastic tub is not as hot as
the surrounding water. Dr. Garrettson testified that electrolyte and blood gas
tests performed on J.G. did not indicate an acid chemical burn. Finally, Dr.
Garrettson testified that the pattern of his burns indicated that he had been
trying to keep part of his body out of the water and that his injuries were the
result of child abuse.
Joshua
Ernest Roller is a physician with Parkland Hospital in Dallas. He testified that
after arriving at Parkland, J.G.’s burns were cleaned with a bristle brush in
order to remove as much of the dead skin and bacteria as possible. Dr. Roller
testified that this process, known as “debriding,” is very painful for
patients such as J.G. who have second-degree burns because their nerve endings
are exposed. J.G. ‘s burns were debrided every day until he had his first skin
graft surgery. Ultimately, J.G. underwent two surgeries to repair the damage
caused by his burns.
Dr.
Roller testified that because appellant waited two days before seeking medical
treatment for J.G., she increased his risk for multisystem organ failure and
sepsis, both of which could have caused his death. Further, Dr. Roller testified
that the severity of J.G.’s burns would have been obvious on the evening of
August 19, 2002. He testified that J.G. would have been in a significant amount
of pain and that Vaseline would not have helped to ease his pain. Dr. Roller
pointed to the same evidence cited by Dr. Garrettson in concluding that J.G.’s
burns were caused by his having been forcibly immersed in hot water.
Dr.
Roller testified that Xrays of J.G. showed fractures to his arm and collarbone
that had healed. Nash testified that appellant said that J.G. had broken his arm
while he was in the care of a babysitter in Mexico. Appellant told Nash that she
initially did not know that J.G. was hurt but that she questioned the babysitter
after J.G. began complaining of pain. The babysitter told appellant that J.G.
had fallen off the top of a car onto the cement. Appellant testified that she
took J.G. to see a doctor. But because some time had elapsed since the injury,
the fracture had already begun to heal and could not be treated. Appellant could
not explain how J.G. had broken his collarbone.
The
evidence indicates that on several occasions, appellant failed to seek prompt
medical treatment for J.G. On one of these occasions, appellant’s delay in
seeking medical treatment for J.G. could have resulted in his death. There is
evidence that appellant understood or should have understood the severity of
J.G.’s burns and yet chose not to take him to see a doctor because she was
afraid he would be taken away from her. Based on our review of the entire
record, we conclude that the trial court could reasonably form a belief or
conviction that appellant engaged in conduct that endangered her children’s
physical or emotional well-being, and therefore, we hold that the evidence is
factually sufficient to support the trial court’s finding. See Tex. Fam. Code Ann. § 161.001(1)(E).
Because
a petitioner need establish only one of the acts or omissions enumerated under
subdivision (1) of section 161.001, we need not address whether the evidence is
factually sufficient to support the trial court’s finding that appellant
knowingly placed or knowingly allowed her children to remain in conditions or
surroundings which endangered the physical or emotional well-being of her
children. See id. § 161.001(1)(D). Instead, we will next address the
trial court’s finding that termination of appellant’s parental rights was in
the children’s best interest. See id. § 161.001(2).
B. Best Interest
Nonexclusive
factors that the trier of fact in a termination case may use in determining the
best interest of the child include
(1)
the desires of the child,
(2) the
emotional and physical needs of the child now and in the future,
(3) the
emotional and physical danger to the child now and in the future,
(4) the
parental abilities of the individuals seeking custody,
(5) the
programs available to assist these individuals to promote the best interest of
the child,
(6) the
plans for the child by these individuals or by the agency 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). These factors are not
exhaustive; some listed factors may be inapplicable to some cases; other factors
not on the list may also be considered when appropriate. C.H., 89 S.W.3d
at 27. Furthermore, undisputed evidence of just one factor may be sufficient in
a particular case to support a finding that termination is in the best interest
of the children. Id. On the other hand, the presence of scant evidence
relevant to each Holley factor will not support such a finding. Id.
1. Desires of G.G. and J.G.
Tucker
testified that G.G. has told her several times that he would like to go home to
live with appellant. Tucker also testified, however, that G.G. told her that he
was happy staying with her. Tucker testified that J.G. has not told her where he
would like to live. She testified that he is happy when appellant visits and is
happy when he is with the Tuckers.
2. The Emotional and Physical Needs of the Children
Now and in the Future
Burns
testified that J.G. has shown symptoms of attachment disorder but that his
condition is improving with therapy. Tucker testified that when J.G. first
arrived at her house, he was scared to take a bath. She testified that even now
J.G. wants to touch the water as it comes out of the faucet and will not get
into a tub if it already contains water. She also testified that J.G. shows
signs of being a perfectionist. He will not wear socks if they are wrinkled and
insists that his shoe laces be tied tightly. She testified that J.G. always
wants to be very clean and does not like change in his daily routine.
Burns
testified that G.G. has trouble with peer relationships, anger management, and
the ability to express his feelings. Burns testified that G.G. wants to have
some amount of control over what is happening in his life and where he will be
living. He also testified that G.G.’s primary concern is stability and knowing
what lies in store for him. He testified that although G.G. assumes the role of
caretaker for his younger brother, G.G. is becoming more independent. Tucker
testified that G.G. and J.G. are very close to one another, and Burns testified
that everything should be done to keep the two together.
3. The Emotional and Physical Danger to the Children
Now and in the Future
As
part of appellant’s service plan, TDPRS wanted appellant to accept that
J.G.’s burns were not caused by residual Clorox bleach but were caused by
Zapata’s forcibly immersing J.G. in hot water. Shantal Sparks, a TDPRS
caseworker, testified that TDPRS was concerned that appellant would not be able
to protect her children from future abuse if she did not think that abuse had
occurred in the past. Sparks also testified that she told appellant that Zapata
was the primary suspect in an investigation that was being conducted by CPS and
the police department into J.G.’s injuries. Sparks told appellant that TDPRS
was concerned about returning the children to her care as long as she continued
to live with Zapata and offered to help appellant with applying for housing
assistance. Appellant refused to believe that Zapata had caused J.G.’s
injuries, however, and she did not leave Zapata until eight months after J.G.
and G.G. were taken away from her.
4. The Plans for the Child by these Individuals or by
the Agency Seeking Custody
Although
Kay Tucker testified that she and her husband are not currently looking to adopt
G.G. and J.G., she also testified that they are very attached to the children
and would be happy to keep them until they are eighteen years old. She testified
that the children are very adoptable and that several people at her church have
expressed interest in adopting them. Appellant testified that she missed several
of her visits with G.G. and J.G. because she did not have money for gas or for
gifts for G.G. and J.G. But she testified that if the children were given back
to her, she would “do everything that’s possible to get them to the
doctor” if they needed medical attention in the future. Appellant also
testified that her brother may be able to get her a job in Phoenix.
5. The Stability of the Home or Proposed Placement
Appellant
testified that she has not had a permanent job since April 2003. She testified
that she sometimes cleans houses and gets $50 per job. Appellant testified that
she is staying with her cousin but will sometimes sleep at another cousin’s
house. Sparks testified that she has not been able to verify where appellant
lives since October or November 2003. She testified that appellant gave TDPRS
the address for a cousin with whom she was supposed to be living. But when
Sparks called the cousin, the cousin told her that appellant did not live with
her.
Based
on our review of the entire record, we hold that the evidence was factually
sufficient to support the trial court’s finding that termination was in the
children’s best interest. We overrule appellant’s first point.
IV. Motion to Dismiss
In
her second point, appellant argues that the trial court erred by not dismissing
TDPRS’s suit affecting the parent-child relationship after the statutory
deadline for entering a final order passed. Section 263.401 of the Texas Family
Code requires a trial court to dismiss a suit affecting the parent-child
relationship if it fails to render a final order or grant an extension on the
first Monday following the anniversary date that the court appointed TDPRS as
temporary managing conservator. Tex. Fam.
Code Ann. § 263.401(a) (Vernon 2002); In re M.N.G., 147 S.W.3d
521, 527-28 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g). The
trial court may extend this deadline for up to 180 days if it finds that
continuing the appointment of the department as temporary managing conservator
is in the best interest of the child. Id. § 263.401(b). According to
section 263.402(b), however, a party who “fails to make a timely motion to
dismiss the suit or to make a motion requesting the court to render a final
order before the deadline for dismissal . . . waives the right to object to the
court’s failure to dismiss the suit.” Id. § 263.402(b).
In
the present case, the trial court appointed TDPRS temporary managing conservator
of G.G. and J.G. on August 23, 2002. Thus, the trial court was required to
render a final order on or before August 25, 2003, the first Monday following
the anniversary of the appointment. See id. § 263.401(a). On June 9,
2003, the trial court granted an extension under 263.401(b), setting the new
deadline for entering a final order as March 1, 2004. Appellant’s case went to
trial on February 24, 2004, and the trial court signed a final order terminating
appellant’s rights on March 1, 2004.
Appellant
argues that the trial court should have set the new deadline at February 22,
2004 and erred by not dismissing the State’s suit on this date. But appellant
never filed a motion to dismiss on these grounds. Therefore, appellant has
waived her right to object to the trial court’s failure to dismiss the suit. See
id. § 263.402(b); In re J.M.C., 109 S.W.3d 591, 595 (Tex.
App.—Fort Worth 2003, no pet.). We overrule appellant’s second point.
V. Conclusion
Having
overruled both of appellant’s points, we affirm the trial court’s judgment.
TERRIE
LIVINGSTON
JUSTICE
PANEL
B: LIVINGSTON, GARDNER, and WALKER, JJ.
DELIVERED:
May 19, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
TDPRS also named the alleged biological fathers of G.G. and J.G. in its
petition. TDPRS was unable to locate either father, however, and the trial court
terminated their parental rights to G.G. and J.G. in the same order terminating
appellant’s parental rights. Neither father is a party to the appeal.
3.
Although the injury to J.G. was the basis of the suit, appellant does not
challenge the trial court’s findings as they pertain to G.G. specifically.
4.
Appellant did not say whether she noticed J.G. scratching his burns before or
after she went to work.