in the Interest of I. D. G. v. A. G., E. R. G. and R. J. G., Children

• Court: Court of Appeals of Texas
• Decided: April 9, 2019
• Docket: 08-18-00182-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-18-00182-CV IN THE INTEREST OF § Appeal from I.D.G., V.A.G., E.R.G., AND R.J.G., § 65th District Court CHILDREN. § of El Paso County, Texas § (TC # 2017DCM6687) §

OPINION

W.M.U. (Wanda) appeals from the judgment terminating her parental rights to I.D.G.,

V.A.G., E.R.G., and R.J.G.1 The trial court also terminated the parental rights of the biological

father, V.G., but he has not appealed. Finding that the Texas Department of Family and

Protective Services abandoned its request to terminate Wanda’s parental rights under Section

161.001(b)(1)(K) of the Texas Family Code, we delete that affirmative finding from the

termination order. The termination order, as so modified, is affirmed.

FACTUAL SUMMARY

Wanda is the mother of four children, I.D.G., V.A.G., E.R.G., and R.J.G. In 2015,

Wanda left the children, ranging in age from six years to nine years of age, at the Lee and Beulah

1 To protect the identity of the children, the opinion will refer to W.M.U. by the fictitious name “Wanda”, to her mother H.U. by the fictitious name “Helen” and to the children by their initials or collectively as the children. See TEX.R.APP.P. 9.8. Moor Children’s Home in El Paso.2 She provided her mother, Helen, with a power of attorney to

consent to medical treatment for the children. The facility is a temporary group home for

children whose parents are having difficulty caring for the children. At the Lee Moor Home, the

children are provided a safe home, and they receive counseling, attend school, and are provided

medical care. The family is encouraged to participate with the children. Wanda visited the

children only sporadically, and it was the children’s grandmother, Helen, who participated in the

majority of the children’s events and activities. When Wanda attended events at the home,

including counseling sessions, she focused on her telephone rather than engaging with the

children. During the time the children were at Lee Moor Home, Helen cared for the children on

the weekends. The children remained at the Lee Moor Home until the Fall of 2017.

On August 28, 2017, the Department received a report that Wanda had been in and out of

jail and she had fled to Mexico with her boyfriend even though she was on probation. Helen

informed the caseworker that she had cared for the children for the last eight years, but she could

no longer be responsible for them due to her health issues and the children’s behavior. The

Department attempted to contact Wanda and V.G., but they could not locate either of them.

I.D.G. said she had not seen her mother for several weeks and the younger children had not seen

her recently and did not know her location. On October 6, 2017, the Department filed a petition

seeking termination of Wanda’s and V.G.’s parental rights. That same day, the trial court

entered an emergency order naming the Department as the temporary sole managing conservator

of the children. The court conducted the final trial in the case on September 14, 2018. Wanda

was in federal custody and did not attend the trial. Wanda’s criminal history includes federal

convictions for human trafficking and importing marijuana. She was convicted on

September 23, 2010 of encouraging and inducing the illegal entry of aliens and was placed on 2 Witnesses referred to the facility as the Lee Moor Home or the Lee Moor Children’s Home.

-2- probation for five years. The terms of probation required Wanda to take parenting classes. In

2011, she was convicted of importing marijuana. Wanda committed this offense only one month

after she was placed on probation for the first offense. The court sentenced her to serve twenty-

one months followed by probation for three years. Finally, Wanda was convicted on March 11,

2016 of transporting aliens, and she was sentenced to serve sixteen months in prison followed by

supervised release for two years. Wanda’s federal probation officer, Karen Eisenberg, testified

at trial that she requested issuance of a warrant for Wanda in May 2017 after she left the halfway

house and other violations of the terms of her supervised released. The court did not revoke

Wanda’s supervised release but she was ordered to spend an additional ninety days at the

halfway house. Wanda absconded from the halfway house again in September 2017. Following

her release from the halfway house in 2018, Wanda was arrested in August 2018 for transporting

aliens. At the time of the final hearing in this case, she was in federal custody and facing a new

charge as well as revocation of her supervised release.

The trial court found that the Department had proven by clear and convincing evidence

that Wanda had: (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,

pursuant to § 161.00l(b)(l)(D), Texas Family Code; (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 child, pursuant to § 161.00l(b)(l)(E), Texas Family Code; (3) executed before

or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights,

pursuant to § 161.001(b)(1)(K), Texas Family Code; (4) constructively abandoned the children

who have been in the permanent or temporary managing conservatorship of the Department of

Family and Protective Services for not less than six months and: (1) the Department has made

-3- reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or

maintained significant contact with the children; and (3) the mother has demonstrated an

inability to provide the children with a safe environment, pursuant to § 161.001(b)(l)(N), Texas

Family Code; and (5) failed to comply with the provisions of a court order that specifically

established the actions necessary for Wanda 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 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 child, pursuant to § 161.001(b)(l)(O),

Texas Family Code. The court also found by clear and convincing evidence that termination of

Wanda’s parental rights was in the children’s best interest, and it appointed the Department as

the permanent managing conservator of the children.

PREDICATE TERMINATION GROUNDS

In Issues One through Three, Wanda challenges the legal and factual sufficiency of the

evidence supporting the trial court’s determination that her parental rights should be terminated

based on subsections D, E, and K of Section 161.001(b)(1) of the Texas Family Code. Parental

rights may be involuntarily terminated through proceedings brought under Section 161.001 of

the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001. Under this provision, the

petitioner must (1) establish one or more of the statutory acts or omissions enumerated as

grounds for termination, and (2) prove that termination is in the best interest of the children. See

id. Both elements must be established, and termination may not be based solely on the best

interest of the child as determined by the trier of fact. Texas Department of Human Services v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138

(Tex.App.--El Paso 2015, pet. dism’d w.o.j.). Only one predicate finding under Section

-4- 161.001(b)(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).

We begin by addressing Issue Three which pertains to termination of Wanda’s parental

rights based on Section 161.001(b)(1)K). The termination order recites that the Department

proved by clear and convincing evidence that Wanda’s parental rights should be terminated

pursuant to subsections D, E, K, N, and O of Section 161.001(b)(1). The record reflects,

however, that the Department abandoned its request for termination under Section

161.001(b)(1)(K). Consequently, we sustain Issue Three and modify the judgment by deleting

the challenged finding.

In Issues One and Two, Wanda challenges termination of her parental rights pursuant to

Section 161.001(b)(1)(D) and (E). She does not, however, address termination of her parental

rights under subsections N and O. Because the unchallenged grounds support the termination

order, we are not required to address the sufficiency arguments presented in Wanda’s first two

issues. See Perez v. Texas Department of Protective and Regulatory Services, 148 S.W.3d 427,

434 (Tex.App.--El Paso 2004, no pet.). Issues One and Two are overruled.

BEST INTEREST

In Issue Four, Wanda contends that the evidence is legally and factually insufficient to

support the best interest finding made under Section 161.001(b)(2) of the Family Code.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, we consider

all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”

In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,

-5- 266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the

fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that

finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We

disregard any evidence that a reasonable fact finder could have disbelieved, or found to have

been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re

J.F.C., 96 S.W.3d at 266.

In a factual sufficiency review, the inquiry is whether the evidence is such that a fact

finder could reasonably form a firm belief or conviction about the challenge findings. See In re

J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could

reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of

appeals should consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. Id. If the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so significant that a fact

finder could not reasonably have formed a firm belief or conviction, then the evidence is

factually insufficient. Id.

The Holley Factors

A determination of best interest necessitates a focus on the child, not the parent. See In

the Interest of B.C.S., 479 S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of

R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). There is a strong presumption that

it is in the child’s best interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d

at 927. Several factors must be considered in our analysis of the best interest issue: the child’s

desires; the child’s emotional and physical needs now and in the future; the emotional and

-6- physical danger to the child now and in the future; the parenting abilities of the individuals

seeking custody; the programs available to assist those individuals to promote the child’s best

interest; the plans for the child by those individuals or the agency seeking custody; the stability

of the home or proposed placement; the parent’s acts or omissions that may indicate 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)(“the Holley factors”). We also

must bear in mind that permanence is of paramount importance in considering a child’s present

and future needs. In re B.C.S., 479 S.W.3d at 927.

We begin by examining the legal sufficiency of the evidence supporting the best interest

finding. The first factor is the desires of the children. At the time of trial, I.D.G. was twelve-

years-old, V.A.G. was eleven-years-old, E.R.G., was ten-years-old, and R.J.G. was nine-years-

old. According to the caseworker, Iliana Ladd, the children are disappointed and upset with

mother, and are sad because they want their mother. I.D.G. asked the caseworker why Wanda

had them if she was not going to care for them. I.D.G. also stated that she knew her mother was

doing drugs and having relationships with men. There is no evidence that the children are

mature enough to express a preference as to their placement. In re A.R., 236 S.W.3d 460, 480

(Tex.App.--Dallas 2007, no pet.)(op. on reh’g)(a child’s preference should not be considered

absent a showing of sufficient maturity). Further, evidence that the children “want their mother”

does not necessarily mean that it is the children’s desire to be placed with mother.

Evidence that a child is well-cared for by the foster family, is bonded to the foster family,

and has spent minimal time in the presence of a parent is relevant to the best interest

determination under the desires of the child factor. See In re R.A.G., 545 S.W.3d 645, 653

(Tex.App.--El Paso 2017, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th

-7- Dist.] 2003, pet. denied). The overwhelming evidence shows that Wanda has not been involved

in the children’s lives for several years and she had only twelve visits with them during the

pendency of the termination case. The three younger children have been in their current

placement since March 2018. They are doing well, participate in family activities, and crave

their foster parents’ attention. The foster parents plan to adopt them and they are open to

fostering I.D.G. if they are able to resolve a foster home licensing issue.3 I.D.G. was placed with

a new foster family on the day of the final hearing. Given Wanda’s lack of involvement in the

children’s lives for several years, we conclude that the first factor weighs in favor of the trial

court’s best interest finding The next two factors are the children’s emotional and physical needs

now and in the future, and the emotional and physical danger to the children now and in the

future. The youngest child, R.J.G., has behavioral issues which require treatment with

medication and therapy. I.D.G. has also received counseling for sexual abuse. The need for

permanence is a paramount consideration for a child’s present and future physical and emotional

needs. In re R.A.G., 545 S.W.3d at 653; In re U.P., 105 S.W.3d at 230. The trial court found

that Wanda engaged in conduct endangering to the children. Conduct that subjects a child to a

life of uncertainty and instability endangers the physical and emotional well-being of a child.

See A.S. v. Texas Department of Family and Protective Services, 394 S.W.3d 703, 712

(Tex.App.--El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.App.--Fort Worth

2009, no pet.). Further, a fact finder may infer that past conduct endangering the well-being of a

child may recur in the future if the child is returned to the parent. In re R.A.G., 545 S.W.3d at

653; In re D.L.N., 958 S.W.2d 934, 934 (Tex.App.--Waco 1997, pet. denied). Intentional

criminal activity that exposes a parent to incarceration is conduct that endangers the physical and

3 The caseworker testified that the foster parents would be required to obtain a group home license before I.D.G. could be placed with them.

-8- emotional well-being of a child. Texas Department of Human Services v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987). From the time the children were quite young, Wanda repeatedly violated

federal law resulting in her incarceration, and she was arrested for a new offense just weeks

before the final hearing. Based on the evidence, the trial court could have determined that

Wanda would continue to endanger the children in the future by her criminal conduct and

abandonment of the children. The second and third factors weigh heavily in support of the best

interest finding.

The fourth factor is the parenting abilities of the individuals seeking custody. In

reviewing the parenting abilities of a parent, a fact finder can consider the parent’s past neglect

or past inability to meet the physical and emotional needs of the children. D.O. v. Texas

Department of Human Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ),

disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). The evidence

supports a conclusion that Wanda has poor parenting skills and an inability to care for her

children or provide for their basic needs. This factor weighs in favor of the best interest finding.

The fifth factor examines the programs available to assist those individuals to promote

the child’s best interest. Wanda completed the general parenting classes but she failed to take

parenting classes aimed at teaching her parenting skills appropriate for the age of her children as

required by her service plan. The trial court could infer from Wanda’s failure to take the

initiative to utilize the available programs that she would not have the ability to motivate herself

in the future. See In re W.E.C., 110 S.W.3d 231, 245 (Tex.App.--Fort Worth 2003, no pet.). The

fifth factor supports the best interest finding.

We will consider the sixth and seventh factors together. The sixth factor examines the

plans for the child by those individuals or the agency seeking custody. The seventh factor is the

-9- stability of the home or proposed placement. The fact finder may compare the parent’s and the

Department’s plans for the children and determine whether the plans and expectations of each

party are realistic or weak and ill-defined. D.O., 851 S.W.2d at 356. The Department’s plan is

for the three younger children to remain in their current placement and to be adopted by the

foster parents. It is possible that I.D.G. will also be placed with her siblings if the foster parents

are able to become licensed as a group home. Wanda did not testify at trial or offer any evidence

of her own plan for the children. The trial court could have determined that the foster parents

will continue to provide the children with a safe and stable home. The sixth and seventh factors

weigh in favor of the best interest finding.

The eighth factor is the parent’s acts or omissions that may indicate that the existing

parent-child relationship is not a proper one. Wanda abandoned the children and endangered

them by repeatedly violating federal law which resulted in her incarceration. As a result, she

could not provide the stability and permanence needed by the children. Based on this evidence,

the trial court could have found that the existing parent-child relationship between Wanda and

the children is not a proper one. The eighth factor supports the best interest finding.

Finally, the ninth factor is whether there is any excuse for the parent’s acts or omissions.

Wanda’s brief does not address this factor or offer any excuse for her conduct.

After considering the evidence related to the Holley factors, the trial court could have

reached a firm conviction that termination of Wanda’s parental rights is in the best interest of

both children. We conclude that the evidence supporting the best interest finding is supported by

both legally and factually sufficient evidence. Issue Four is overruled.

Having sustained Issue Three, we modify the judgment by deleting the trial court’s

finding that Wanda’s parental rights should be terminated pursuant to Section 161.001(b)(1)(K).

- 10 - Having overruled Issues One, Two, and Four, we affirm the order terminating Wanda’s parental

rights to I.D.G., V.A.G., E.R.G., and R.J.G. as so modified.

April 9, 2019 ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

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