in the Interest of K.S., K.S. and G.S.

• Court: Court of Appeals of Texas
• Decided: September 25, 2014
• Docket: 09-14-00222-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00222-CV ____________________

IN THE INTEREST OF K.S., K.S. AND G.S.

_______________________________________________________ ______________

On Appeal from the County Court at Law Polk County, Texas Trial Cause No. PC05776 ________________________________________________________ _____________

MEMORANDUM OPINION

The trial court terminated the parental rights of G.S. (Father) and T.R.J.

(Mother) to their children K.S., K.S., and G.S. 1 In separate briefs submitted in this

appeal, Mother and Father challenge the legal and factual sufficiency of the

evidence supporting the jury’s verdict. We affirm the trial court’s judgment.

1 We identify the minors by their initials to protect their identities. See Tex. R. App. P. 9.8. Other family members are identified, as necessary, based on their respective relationships to the specific child who is being discussed. 1 Background

K.S. and K.S. are twins born in September 2010 and G.S. was born in

February 2013. In May 2011, the Department obtained a removal order for the

twins. In January 2013, the trial court signed an agreed order appointing the

children’s paternal grandfather, B.S. (Grandfather), as permanent managing

conservator of the twins and dismissing the Department from the case. On June 5,

2013, the twins were left unattended outside a bank in the course of an argument

between Mother and the children’s maternal grandmother, J.K. (Grandmother). A

few weeks later, when the women were arrested and taken into custody in

connection with the incident at the bank, Grandfather turned over possession of the

three children to the Department. The trial court named the Department as the

children’s temporary managing conservator on June 25, 2013, then consolidated

the earlier suit concerning the twins with the new suit concerning all three children.

The disputed issues were submitted to a jury, which found by clear and

convincing evidence that Mother’s and Father’s parental rights to each child should

be terminated. The trial court found that Mother (1) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which

endangered the physical or emotional well-being of the children, (2) engaged in

conduct or knowingly placed the children with persons who engaged in conduct

2 which endangers the physical or emotional well-being of the children, (3) had her

parent-child relationship terminated with respect to another child based on a

finding of endangering conduct or conditions, and (4) that termination of the

parent-child relationship between Mother and the children is in the children’s best

interest. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (M), (2) (West 2014). The

trial court found that Father (1) 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, (2) failed to comply with the provisions of a

court order that specifically established the actions necessary for the father to

obtain the return of the children who have been in the permanent or temporary

managing conservatorship of the Department 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, and (3) that termination of the parent-child relationship

between Father and the children is in the children’s best interest. See id. §

161.001(1)(E), (O), (2).

Standard of Review

“The decision to terminate parental rights must be supported by clear and

convincing evidence.” In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). Clear

and convincing evidence is “the measure or degree of proof that will produce in the

3 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 (West 2014). A

judgment will be affirmed if a parent committed one or more predicate acts or

omissions and termination is in the child’s best interest. See Tex. Fam. Code Ann.

§ 161.001; see also J.L., 163 S.W.3d at 84.

In reviewing the evidence for legal sufficiency, we consider all of the

evidence in the light most favorable to the termination finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding was true. J.L., 163 S.W.3d at 84–85. We assume the factfinder

resolved any disputed facts in favor of its finding, if a reasonable factfinder could

do so, and ‘“disregard all evidence that a reasonable factfinder could have

disbelieved[.]”’ Id. at 85 (quoting In the Interest of J.F.C., 96 S.W.3d 256, 266

(Tex. 2002)).

When we review a termination of parental rights for factual sufficiency, we

give “due consideration” to any evidence that the factfinder could reasonably have

found to be clear and convincing. J.F.C., 96 S.W.3d at 266; see also In the Interest

of C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider the disputed evidence and

determine whether a reasonable factfinder could have resolved that evidence in

favor of the finding. J.F.C., 96 S.W.3d at 266. The evidence is factually

4 insufficient if the disputed evidence that does not reasonably support the finding is

so significant that a factfinder could not have reasonably formed a firm belief or

conviction that the fact at issue was true. Id.

We must uphold the judgment against a challenge to the sufficiency of the

evidence if the evidence is legally and factually sufficient on the best interest

finding and any one of the statutory grounds for termination identified in the

judgment. See In the Interest of E.I.T., 299 S.W.3d 919, 923 (Tex. App.—

Beaumont 2009, no pet.).

Grounds for Termination-Mother

Mother contends insufficient evidence supports a finding that she “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[.]” Tex. Fam.

Code Ann. § 161.001(1)(E). “Under subsection (E), the relevant inquiry would be

whether clear and convincing evidence exists that the endangerment of the

children’s physical or emotional well-being was the direct result of that parent’s

conduct, including acts, omissions, or failures to act.” In the Interest of J.B., No.

09-11-00305-CV, 2012 WL 2849267, at *2 (Tex. App.—Beaumont July 12, 2012,

no pet.) (mem. op.). Endangerment “means more than a threat of metaphysical

injury or the possible ill effects of a less-than-ideal family environment[]” but “it is

5 not necessary that the conduct be directed at the child or that the child actually

suffers injury.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987).

Mother testified that she drove Grandmother and the children in

Grandmother’s car on errands that included taking the twins to therapy and visiting

a bank. Mother stated that she was annoyed with Grandmother because “she had

me going all over the place.” When Mother complained that she had appointments

herself and she was ready to go, Grandmother ordered Mother to get out of her car.

Mother removed the children from the car and brought them into the bank, still in

their car seats, and set them down, then left the bank in Grandmother’s vehicle.

Mother explained that she was upset because Grandmother would not lend her a

cell phone so Mother could call someone else to come get her. Grandmother

carried the children out of the bank and left them in their car seats alone outside the

door to the bank. Grandmother and Mother eventually returned to the children and

the bank’s vice-president informed the women that the police had been called. Still

angry, Mother hit one of the children, tossed the car-seated children into the car

without securing them, drove into the parking area in reverse with the doors open,

then stopped suddenly. The abrupt movement caused the car doors to close and

Mother drove away before the police arrived.

6 Mother admitted that Grandmother had a substance abuse problem and in the

past had been charged with driving while intoxicated with one of Mother’s

children in the vehicle. Mother was aware that the Department had emphasized that

Grandmother should never be left alone with the children, but Mother stated that in

her opinion she did not leave the children with Grandmother unsupervised because

they were in a public place. Mother testified that she would not have left the

children alone with Grandmother any other place.

On appeal, Mother concedes the Department established that she left the

twins at the bank with Grandmother “whom all agreed was an inappropriate

caregiver” but argues evidence of a single act or omission cannot support an

endangerment finding under subsection E. Mother also argues the jury could not

find that she endangered G.S. because that child was not with them at the bank. A

single act or omission that directly affects a child can justify an endangerment

finding. See In the Interest of D.A., 02-14-00076-CV, 2014 WL 3778234, at *22

(Tex. App.—Fort Worth July 31, 2014, no pet. h.) (mem. op.). A parent’s conduct

directed toward one child can support termination of parental rights as to another

child even though it did not occur in the child’s presence. In the Interest of B.B.,

971 S.W.2d 160, 169 (Tex. App.—Beaumont 1998, pet. denied), disapproved on

other grounds by In the Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002). In this

7 case, the jury reasonably could conclude that Mother not only left her children with

a person she knew to be an inappropriate caregiver, she left them without first

securing Grandmother’s consent to supervise the children or ensuring that a

responsible person would be watching the children in her absence. The jury could

also determine that when she did return, Mother further endangered the children by

failing to secure their car seats and by driving recklessly to avoid being confronted

by the police. The jury could form a firm belief or conviction as to the truth of the

Department’s allegation that Mother endangered her children. J.L., 163 S.W.3d at

84.

Mother also argues that the evidence is factually insufficient to support the

statutory predicate grounds for termination, but she did not challenge the factual

sufficiency of those findings in her motion for new trial. A motion for new trial is

required to preserve a complaint of factual insufficiency to support a jury finding.

In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003). Mother does not argue

that trial counsel unjustifiably failed to preserve error. See In the Interest of J.P.B.,

180 S.W.3d 570, 574 (Tex. 2005); M.S., 115 S.W.3d at 548. Counsel is not

automatically ineffective for failing to preserve a factual sufficiency claim. In the

Interest of C.T., No. 09-11-00694-CV, 2012 WL 1072260, at *1 (Tex. App.—

Beaumont Mar. 29, 2012, no pet.) (mem. op.).

8 We overrule issue three of Mother’s brief. Because only one predicate

finding is necessary to support a judgment, we do not address issues one and two

of Mother’s brief, which challenge the Department’s other alleged grounds for

termination of the parent-child relationship between Mother and the three children.

See In the Interest of A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also Tex. R. App.

P. 47.1.

Grounds for Termination-Father

In his second issue, Father contends the evidence is legally and factually

insufficient to support an affirmative finding that he

failed to comply with the requirements of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has 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 child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.

See Tex. Fam. Code Ann. § 161.001(1)(O). Father argues the Department failed to

prove that the children were removed from Father for Father’s abuse or neglect of

the children. He also argues the Department failed to comply with the Chapter 263

requirements for preparing and filing a service plan.

The twins were removed from Father’s custody in 2011 for neglectful

supervision and the Department assumed temporary managing conservatorship.

9 The children were removed because Father was arrested for assaulting

Grandmother and Grandmother was arrested for driving while intoxicated with a

child in the vehicle. The Department offered family based safety services. The

children were returned to Mother and Father in a monitored return around April

2012. The return failed, and the Department removed the children and returned

them to foster care. At the conclusion of that proceeding Grandfather became their

permanent managing conservator.

In June 2013, the incident at the bank resulted in a referral involving the

twins and G.S. The Department’s petition and the trial court’s order were admitted

in the trial as evidence. In the order, the trial court found “there is an immediate

danger to the physical health and safety of the children or the children have been

the victims of neglect or sexual abuse and that continuation in the home would be

contrary to the children’s welfare[.]” Although Grandfather was the managing

conservator, Mother testified that at that time Mother and Father were also residing

with the children in Grandfather’s household. According to Father, Grandfather

had turned the children over to them and they were raising the children at

Grandmother’s most of the time.

The trial court appointed the Department as the children’s temporary

managing conservator on July 9, 2013. At that time the Department alleged that

10 there is an immediate danger to the physical health or safety of the children. The

trial court denied the Department’s motion to proceed under aggravated

circumstances on September 4, 2013, and ordered the Department to file Father’s

service plan, which was filed on September 17, 2013. The trial began April 21,

2014. In his trial testimony, Father admitted that after the most recent removal he

did not work on completing the service plan because he was depressed.

Father contends he could not be required to complete a service plan because

the children were removed from Grandfather’s custody, not Father’s. This

argument is presented for the first time on appeal. At trial, Father moved for

directed verdict on the subsection O finding on the ground that “the Service Plan

was filed in September of 2013[,] and we’re in April of 2014, and he has not had

nine months to work a Service Plan, and has absolutely not been given an

opportunity to do that in the six months or so that it’s been.” Father does not argue

that trial counsel unjustifiably failed to preserve error. See J.P.B., 180 S.W.3d at

574; M.S., 115 S.W.3d at 548.

Subsection O may operate as a ground for termination when a parent from

whom children are not physically removed fails to comply with court-ordered

services. See In the Interest of A.M.C., No. 09-12-00314-CV, 2012 WL 6061031,

at *6 (Tex. App.—Beaumont Dec. 6, 2012, no pet.) (mem. op.). The trial court’s

11 order of protection was admitted into evidence and shows the trial court found that

the children were removed due to neglect. See Tex. Fam. Code Ann. § 262.102

(West 2014).

Father argues his rights cannot be terminated for failing to comply with a

service plan that was not filed within forty-five days of its appointment as

temporary managing conservator. See id. § 263.101. He also challenges the

Department’s reliance on subsection O as a termination finding because the status

hearing was not held within sixty days of the appointment. See id. § 263.201 These

arguments are raised for the first time in this appeal. In the proceedings before the

trial court, Father argued that his failure to comply with the family service plan

could not support a termination finding under subsection O because the

Department filed the plan less than nine months before the trial. He did not argue

that the plan was invalid because it was not filed within forty-five days after the

trial court named the Department as the children’s temporary managing

conservator or because the status hearing was delayed because the Department

filed a motion to proceed under aggravated circumstances.

The trial court’s failure to conduct a timely status hearing does not deprive

the court of jurisdiction and a due process complaint relating to a delayed hearing

must be presented to the trial court to preserve the issue for appeal. In the Interest

12 of T.T.F., 331 S.W.3d 461, 478 (Tex. App.—Fort Worth 2010, no pet.). The

children were in the Department’s custody for nine months, as required by

subsection O. See Tex. Fam. Code Ann. § 161.001(1)(O). Father concedes that he

did not seek enforcement of the statutory timetable, but argues he was harmed

because he did not receive nine months to work on completing the plan. See In the

Interest of J.G.K., No. 02-10-00188-CV, 2011 WL 2518800, at *33 (Tex. App.—

Fort Worth June 23, 2011, no pet.) (mem. op.). A caseworker for the Department

testified that Father submitted to a hair follicle test in December 2013, but at the

end of the month Father told her not to schedule caseworker services because “the

kids were going to be taken.” The caseworker visited Father the following month

and recommended counselors, but Father declined services. The caseworker

indicated that, other than submitting to the hair follicle test and visiting the

children, Father did not work on the service plan at all in the seven months

between the time the Department filed the service plan and the trial. The jury could

form a firm conviction or belief that Father failed to comply with a court order that

established the actions necessary for Father to obtain the return of the children to

him. See Tex. Fam. Code Ann. § 161.001(1)(O). We conclude the evidence is

legally sufficient to support the finding.

13 Father contends the evidence is factually insufficient to support the statutory

predicate grounds for termination, but his motion for new trial challenged only the

best interest finding. Father does not argue that trial counsel unjustifiably failed to

preserve error. See J.P.B., 180 S.W.3d at 574; M.S., 115 S.W.3d at 548. As stated

earlier, counsel is not automatically ineffective for failing to preserve a factual

sufficiency claim. C.T., 2012 WL 1072260, at *1.

We overrule issue two of Father’s brief. Because only one predicate finding

is necessary to support a judgment, we do not address issue one of Father’s brief,

which challenges the other ground for termination in the judgment. See In the

Interest of A.V., 113 S.W.3d at 362; see also Tex. R. App. P. 47.1.

Best Interest

In their motions for new trial, both Mother and Father moved for a new trial

on the ground that the evidence supporting the jury’s finding that termination is in

the children’s best interest is legally and factually insufficient. Mother’s issue four

and Father’s issue three challenge the legal and factual sufficiency of the evidence

supporting the best interest finding. Regarding the children’s best interest, we

consider a non-exhaustive list of factors: (1) desires of the children; (2) emotional

and physical needs of the children now and in the future; (3) emotional and

physical danger to the children now and in the future; (4) parental abilities of the

14 individuals seeking custody; (5) programs available to assist the individuals to

promote the best interest of the children; (6) plans for the children by the persons

or by the agency seeking custody; (7) stability of the home or proposed placement;

(8) acts or omissions of the parents which may indicate that the existing parent-

child relationship is not proper; and (9) any excuse for the acts or omissions of the

parents. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam.

Code. Ann. § 263.307(b) (West 2014).

The Department’s witness testified that Mother and Father have a bond with

their children. Someone other than Mother and Father has had conservatorship of

the children for most of their lives. The twins have a neurological condition that

requires specialized equipment, physical therapy, and speech therapy. Mother

testified that she understood her children’s needs. Although she was living in

Goodrich at the time, they had to move out of Grandfather’s home so she met with

the San Jacinto County or the Coldspring School District about getting the children

transferred there and fitted for wheelchairs when they turned three. Father testified

that Mother took care of the children when they lived together.

While Mother was pregnant with the twins, her rights were terminated as to

one of her other children. Mother did not work on completing a service plan for

that case because she was abusing prescription medications and was in hiding to

15 avoid drug charges for which she was eventually imprisoned. Mother testified that

she stopped using drugs when she was pregnant with the twins and that she had

been drug free since 2010. At the time of trial Mother did not have a home, a job,

or any means of support. She admitted she would not be able to take care of the

children at this point in her life, but stated she believed Father could provide for all

of their needs and it would be in the children’s best interest for the children to be

placed with Father.

Father threatened suicide during the case. One month before the trial he was

arrested for assaulting Mother and his brother. After Mother left him

(approximately one month prior to trial) Father began to seek therapy for his

emotions. Father also discontinued his medication regimen for depression and bi-

polar disorder, relying instead on heavy doses of pain medications. By his own

admission Father’s psychological problems impeded his ability to function. Father

was unemployed at the time of trial but testified he would be willing to assist

Mother financially if the children were returned to her. Father was living in a

trailer that his mother purchased for him and placed on his grandmother’s property;

he added sheet rock and a roof a few days before the trial and stated that with a

little more work the trailer would be suitable for visitation with the children. Father

16 asked for the children to be returned to him and for the Department to be dismissed

from the case.

In June 2013, the Department placed the children with a foster mother who

is a board certified pediatrician who treats children with special needs in her

practice. Her husband is an art teacher for the school district. When the children

arrived in the foster care home, four-month-old G.S. was on target developmentally

but the twins were nonverbal and too weak to walk or climb. At least once a week

they received speech therapy, occupational therapy, and physical therapy. When

the twins reached the age that required them to leave the program Early Childhood

Intervention, the foster mother enrolled them in home health services, ensuring

their continuous care. The twins attend an early childhood education center and the

youngest child is in daycare. The twins are being treated for amblyopia. They have

walkers and specialized tricycles. The foster mother and her husband would pursue

adoption if the children were available.

On the entire record, the jury could reasonably conclude that neither Mother

nor Father could provide a safe environment for the children. The evidence that

does not support the jury’s finding includes evidence that Mother had taken care of

the children in the past and Father had been preparing a place where the children

could stay with him, but the evidence is not so significant that the jury could not

17 have reasonably formed a firm belief or conclusion that terminating the parent-

child relationship is in the children’s best interest. We overrule Mother’s issue four

and Father’s issue three. The trial court’s judgment is affirmed.

AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on August 11, 2014 Opinion Delivered September 25, 2014

Before McKeithen, C.J., Horton and Johnson, JJ.