in the Interest of K. W. and C. G. III

• Court: Court of Appeals of Texas
• Decided: September 30, 2003
• Docket: 14-03-00229-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed September 30, 2003

Affirmed and Memorandum Opinion filed September 30, 2003.                                                    

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00229-CV 

IN THE INTEREST OF K.W. AND C.G., III

On Appeal from 272nd District Court

                                                           Brazos County, Texas                      

Trial Court Cause No. 7955-CV

M E M O R A N D U M   O P I N I O N

            T.K. appeals from a trial court order terminating her parental rights to one of her children, C.G., and limiting her visitation rights to another, K.W.[1]  T.K. is the biological mother of both children.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.[2]

            A court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in certain listed conduct and termination is in the best interest of the child.[3]  T.K. does not challenge the trial court’s finding that termination would be in C.G.’s best interests.  Instead, she challenges the factual sufficiency of the trial court’s two grounds for termination (either of which standing alone is sufficient): (1) T.K. engaged in conduct, or knowingly placed C.G. with persons who engaged in conduct, that endangered the physical or emotional well-being of the child, and (2) T.K. failed to comply with provisions of an earlier order establishing requirements for the return of C.G.[4]  The evidence is factually insufficient only if, after resolving disputed evidence in favor of the court’s finding if a reasonable person could have found it to be clear and convincing, there is evidence remaining that is both contrary to the finding and so significant that a factfinder could not reasonably form a firm belief or conviction that the grounds for termination had been established.[5]

            Regarding the first ground, the record contains considerable evidence of T.K.’s violent behavior and surroundings.  A series of police officers testified regarding seven recent incidents of domestic violence in which she was involved.[6]  Although in most cases the police did not recall whether children were present, they did report the presence of small children on at least two occasions.

            The record also contains evidence of the children’s physical well-being while in T.K.’s care.  The first foster mother for C.G. and K.W. testified K.W. told her T.K. burned them with cigarettes.  The foster mother and a nurse testified C.G. had a burn on his chest and a badly infected toe, and K.W. had burns on her ankles.  The nurse opined that failing to obtain treatment for the infected toe constituted child neglect.  C.G.’s subsequent foster mother testified about an incident in which C.G. was burned on the head by candle wax during a visit with his mother, explaining that C.G. seemed more upset by T.K.’s “yelling and screaming” than by the actual burn.  A psychologist who treated K.W. testified that in her play-therapy K.W. depicted scenes of domestic violence and of children being physically disciplined and burned.[7]

            The record further contains evidence of C.G.’s developmental delays.  A licensed professional counselor testified that evaluations of C.G. showed him to be significantly delayed in language, self-help, and social development skills, and did not appear to have any hearing or neurological problems that could account for the delays.[8]  Additionally, the counselor noted C.G. often showed no response to pain stimuli, a condition for which there was no medical explanation.  C.G.’s speech therapist testified she had seen little improvement in C.G.’s communication skills, and he would need intense therapy for an extended time.  C.G.’s current foster mother testified unfamiliar situations could lead to “complete meltdowns” by C.G., wherein he would at first “shut down” and become fixated on a familiar object but if it was taken away he would throw a temper tantrum.

            In response, T.K. points to evidence that she appeared nurturing and caring during supervised visits with C.G., was not responsible for some of the violent incidents reported by the police, and that C.G.’s developmental problems may have occurred while he was in foster care.[9]  But the proof of occasional nurture does not overwhelm the proof of occasional violence, nor does her lay opinion regarding the source of C.G.’s problems overwhelm that of the caregivers’ opinions to the contrary.  And the Family Code does not require a showing that T.K. intentionally engaged in violence in an effort to harm the children; it is enough that she engaged in conduct (no matter who started it) endangering the physical or emotional well-being of C.G.  Resolving all evidentiary disputes in favor of the trial court’s findings, we find T.K.’s evidence is not so significant as to prevent a factfinder from reasonably forming a firm belief that this ground for termination had been established.  T.K.’s first two issues are overruled.

            Regarding the additional ground for termination, the Family Service Plan approved by the court required T.K. to (1) participate in individual counseling, (2) maintain a stable employment, (3) attend parenting classes and demonstrate appropriate interactions with her children, (4) cooperate with CPS and refrain from criminal activity, (5) participate in a drug and alcohol assessment and follow recommendations, and (6) maintain proper housing.[10]

            In her brief, T.K. acknowledges she “had difficulty” completing tasks one and two.  Indeed, the evidence indicated she failed to attend any individual counseling sessions, and she admitted she was employed only five out of seventeen months prior to trial.  T.K. asserts she “substantially completed” tasks three and four, but the evidence demonstrated she attended fewer than half the scheduled parenting classes, and the police were called to the scene of three separate domestic disturbances in which she was involved after the service plan’s effective date.[11]  Additionally, police investigating a burglary were informed the stolen property might be located in T.K.’s apartment.  Police entered the apartment and arrested T.K.’s brother.  T.K. finally contends she “successfully completed” tasks five and six.  However, she does not cite to any evidence supporting this contention.

            In response, T.K. asserts she was unable to attend many of the counseling and training sessions because of scheduling conflicts and the birth of a third child.  But it was undisputed that most of those conflicts could not have related to employment (as she usually was unemployed), and there is no evidence other than her say-so to support any other conflicts.  Again resolving all evidentiary disputes in favor of the trial court’s findings, we find T.K.’s evidence is not so significant as to prevent a factfinder from reasonably forming a firm belief that this ground for termination had also been established.  T.K.’s second two issues are overruled.

            In her fifth issue, T.K. contends there was factually insufficient evidence to support any other ground for termination.  As no other grounds appear in the trial court’s order, this complaint presents nothing for review, and is overruled.

            In her final issue, T.K. contends the trial court erred in giving a third party (K.W.’s paternal grandmother, appointed Sole Managing Conservatorship of K.W.) discretion to determine the length, frequency, and timing of T.K.’s visitation with K.W.  The record does not reflect that T.K. ever made a timely objection to this order in the trial court.[12]  Additionally, although the courts of appeal are in disagreement over the validity of such orders generally,[13] there appears to be agreement that a court may deny, restrict, or limit the possession of a child in this manner where there is a previous history of family violence.[14]  As noted above, that exception applies here.

            The judgment of the trial court is affirmed.

/s/        Scott Brister

                                                                                    Chief Justice

Judgment rendered and Memorandum Opinion filed September 30, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

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[1] C.G. is a male born on August 23, 2000.  K.W. is a female born on October 6, 1998.  A third child born later is not involved in these proceedings.

[2] See Tex. R. App. P. 47.4.

[3] Tex. Fam. Code § 161.001; In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

[4] See Tex. Fam. Code § 161.001(E), (O).

[5] See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

[6] In March 2000, an officer responded to a fist fight between T.K. and her sister; on January 15, 2001, an officer arrested T.K. for injuring her sister; on April 30, 2001, appellant wielded a stick in a fight involving several members of her family; on June 2, 2001, appellant and her brother drew knives on each other during a fight; on May 25, 2002, appellant was beaten by C.G.’s father, who claimed T.K. had hit him on the head with a beer bottle; on November 15, 2002, T.K. and her sister got into a fight; on November 30, 2002, appellant and her sister were assaulted by C.G.’s father.  Additionally, on July 5, 2002, T.K.’s brother was arrested in her apartment after police were called, although T.K. herself was apparently not present at the time.  T.K.’s sister once told the police that the two “get into verbal disputes quite frequently.”

[7] K.W.’s play also depicted sexual acts; however, because the record contains the suggestion she was molested by another child in a foster home, these sexual depictions cannot necessarily be ascribed to her time in T.K.’s care.

[8] Specifically, when C.G. was tested at twenty-two months old, he was shown to have the expressive and receptive language skills of a nine- to twelve-month old, and the play and interpersonal relationship skills of a five- to six-month old.  Although the counselor could not put an age range on his self-help development, she said he could not use utensils and did not seem aware of when he needed to urinate, suggesting a delay in self-help development.  The counselor further stated she saw little improvement between the date of the evaluation and the date of trial (about six months later).  An MRI was performed but showed no brain abnormalities.

[9] T.K. states that an evaluation of C.G. done immediately after his removal from T.K.’s home, showed no developmental delays.  However, this assertion is not supported by any evidence in the record

[10] The trial court’s temporary orders required T.K. to comply with each task in the service plan in order to obtain the return of the children, and stated that failure to fully comply could result in termination of parental rights.  Curiously, the tasks listed by the parties in their respective briefs vary somewhat from the tasks in the service plan.  Neither party provides explanation or citation for their list of tasks.  At one point the parties entered into a mediated settlement agreement that purported to list terms and conditions for reunification, similar but not identical to those listed above.  However, there is no indication in the record the trial court approved or adopted the agreement, nor is there any notation in the agreement that failure to fulfill the terms and conditions could result in termination of parental rights.  Accordingly, it is the terms of the Family Service Plan, as referenced by the trial court, that we review in this appeal.

[11] Regarding one of the disturbances, the officer testified he was told T.K. hit C.G.’s father with a beer bottle.  In another disturbance, T.K. was accused of fighting with her sister.  In the last incident, appellant was assaulted by C.G.’s father.  Obviously, only the first two could be interpreted as illegal activity on T.K.’s part.

[12] See Tex. R. App. P. 33.1(a)(1).

[13] See in re R.D.Y., 92 S.W.3d 433 (Tex. 2002) (Hecht, J., dissenting to denial of rehearing on petition for review).

[14] See Tex. Fam. Code § 153.004(c); Roosth v. Roosth, 889 S.W.2d 445, 451 (Tex. App.—Houston [14th Dist.] 1994, pet. denied) (disapproving of such orders “except in extreme cases of unfitness”).