in the Interest of M.L.N. and A.S.N., Children

• Court: Court of Appeals of Texas
• Decided: May 5, 2011
• Docket: 13-10-00588-CV
• Status: Published

Opinion

NUMBER 13-10-588-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF M.L.N. AND A.S.N., CHILDREN

On appeal from the 135th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Vela This is an appeal from an order terminating the parental rights of appellant, R.A.N.,

to his two children, a son, M.L.N. and a daughter, A.S.N. In his sole issue on appeal,

appellant argues that the trial court violated his right to equal protection under the

fourteenth amendment of the United States Constitution because the reasons for

termination were that appellant was an unemployed, indigent person with a disability. See U.S. CONST. amend. XIV. We affirm.

I. BACKGROUND

The State, through the Texas Department of Family and Protective Services, filed

its original petition on March 26, 2009, seeking managing conservatorship and potential

termination of the parental rights of appellant, R.A.N., and D.R.N., the children=s mother

and appellant’s wife. After a hearing was held on March 17, 2010, the trial court

terminated the mother’s parental rights to the children. With respect to appellant, the trial

court stated: ―I’m going to continue a decision in [appellant’s] termination for six months.

At the end of six months if he has not reached a proficiency level that the professionals

deem necessary for him to continue training to have the children returned to him, I’ll

terminate his rights.‖ The State later sought an order to dissolve the suspension of the

earlier termination order and terminate appellant’s parental rights.

On October 1, 2010, the trial court held a hearing on the State’s request to

terminate appellant’s parental rights. The trial court took judicial notice of its file, which

included the order in which he terminated D.R.N.’s parental rights and suspended the

termination order for six months with respect to appellant. The trial court also admitted

into evidence the entire transcription of the earlier hearing on the motion to terminate

appellant’s rights. The trial court admitted into evidence the plan of service that had

been set up for appellant to follow. The plan included weekly counseling, addressing his

own medication needs, maintaining safe and hazard-free housing, and the requirement

that appellant be able to show he is able to financially care for the children.

2 Christy Hartly-Harvey, with the homemaker services program, testified at the

October hearing, as well as at the initial hearing. At the October hearing, she testified

that appellant had accomplished none of goals set forth for him in the service plan. He

initially acquired a residence that was not adequate to house two small children. There

was no running water, no electricity, the floor was rotting, and there were nails protruding

from the base boards. She stated that she last saw appellant on August 17, and he

missed an appointment on August 31. Since that time, she had not had contact with

appellant. At the earlier hearing, when asked about the parenting abilities of appellant

and his wife, Hartly-Harvey concluded that she did not believe Aeither one of them has the

capability to parent their children effectively and nurturing—you know, being nurturing

parents. I think they both have the desire but I don=t think they have the capability.@ She

felt that neither parent has the ability to teach the children right from wrong, to resolve

conflicts, to teach them how to resolve conflicts, or to show the children proper affection.

Catherine Parsons-Key, a licensed professional counselor, testified at the October

hearing that she began counseling with appellant in the middle of July. Appellant kept all

of his weekly appointments with her from July 13 through August 24. On September 2,

he did not come to his appointment and did not explain or reschedule. During the

counseling sessions, she spoke with appellant about his background, including his

mental illness and his childhood that had been spent in DPS care. She opined that

during the time she counseled with him, no progress was made. He could not get the

housing arranged and could not get anything accomplished outside of the counseling

realm. Parsons-Key stated that she was not sure improvement would happen. Based

3 on the six sessions she had with appellant, she did not think more time would have

helped, but qualified her answer by agreeing that it might have. She informed the trial

court that she did not believe appellant was competent to raise and nourish two special

needs children.

Alma Straney, the DPS caseworker assigned to appellant, testified that she took

over his case in May 2010, visited with appellant at the apartment and noted he had

cleaned the bathroom and the tub, but stated that the apartment was in no condition for

children to live there. She testified that appellant did not fulfill the requirements of the

plan of service. At the time of the October hearing, appellant was living on the streets.

Straney noted that appellant visited with the children regularly, only missing one visit in

September.

Appellant testified at the October hearing that he had stayed away from his wife

since her rights had been terminated, returning only once to retrieve his personal items.

He said he looked for a home and had been applying for jobs. In August, he moved out

of the apartment because it was not manageable and the landlord was not making

necessary repairs.

Prior to the October hearing, the trial court heard evidence that appellant had

relinquished his parental rights to the two children in 2004. Evidence offered at the

earlier hearing showed a pattern of violent altercations between appellant and his wife in

the children=s presence. According to D.R.N., she and appellant had arguments that the

children witnessed. She described one instance where appellant grabbed her by the

chain on her neck and attempted to choke her. Later, her daughter attempted to do the

4 same thing to her because she wanted to Abe like daddy.@ Appellant testified that he had

used drugs with his wife. He also testified that he receives disability benefits, has been

hospitalized several times for psychological problems, has been arrested for possession

of a controlled substance and criminal mischief, and has an addiction to pills.

At the earlier hearing, D.R.N. testified that the home was not a safe place for the

children while she and her husband resided there. Appellant agreed that the children

were not safe while the two of them were at home. The experts who testified at the

earlier hearing all agreed that the parental rights of both parents should be terminated

based on the fact that they had worked with both of them extensively and saw no progress

with respect to parenting skills.

At the conclusion of the October 1, 2010 hearing, the trial court found that the

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 which endangered the physical or emotional well-being of the

children; and (3) failed to comply with the provisions of a court order that specifically

established the actions necessary for him to have the children returned. The trial court

also found that the State had made reasonable efforts to return the children to appellant.

II. STANDARD OF REVIEW AND APPLICABLE LAW

In hearings regarding the termination of parental rights, due process requires that

the State prove its case for termination by clear and convincing evidence. In re J.F.C.,

96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In

re G. M., 596 S.W.2d 846, 847 (Tex. 1980)). The clear and convincing standard is

5 defined as the Ameasure 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 (West 2008). The Equal Protection Clause provides that

no state shall ―deny to any person within its jurisdiction the equal protection of the laws,‖

which directs that all persons similarly situated should be treated alike. U.S. CONST.

amend. XIV, § 1; In re J.M.C., 109 S.W.3d 591, 597 (Tex. App.–Fort Worth 2003, no pet.).

Taking this elevated standard of review into consideration, an appellate court,

reviewing the legal sufficiency of the evidence in a parental termination case, must

determine whether a fact-finder could have reasonably formed a firm belief or conviction

that the grounds for termination were proven. In re J.F.C., 96 S.W.3d at 265-66. All

evidence should be reviewed Ain the light most favorable to the judgment.@ Id. at 266.

This means that an appellate court must assume that the fact-finder resolved any

disputed facts in favor of its finding if a reasonable fact-finder could have done so. An

appellate court must also disregard all evidence that a reasonable fact-finder could have

disbelieved. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). AIf [an appellate

court] determines that no reasonable fact-finders could form a firm belief or conviction that

the matter that must be proven is true, then that court must conclude that the evidence is

legally insufficient.@ In re J.F.C., 96 S.W.3d at 266.

Similarly, the clear and convincing standard of review in a parental termination

hearing requires a higher level of evidence in order to be factually sufficient. See In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002). The appellate standard for reviewing parental

termination factual findings is whether the evidence is such that a fact-finder could have

6 reasonably formed a firm belief or conviction about the truth of the State's allegations.

Id.

In reviewing the evidence for factual sufficiency, we must determine whether, on

the entire record, a fact-finder could reasonably form a firm conviction or belief that the

parent violated a provision of section 161.001(1) of the family code and that the

termination of parental rights would be in the best interest of the child. In re M.C.T., 250

S.W.3d 161, 168 (Tex. App.–Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28).

AIf, in light of the entire record, 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 have

reasonably formed a firm belief or conviction in the truth of its finding, then the evidence is

factually insufficient.@ Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)).

When termination is based on multiple grounds under section 161.001(1), a court

of appeals must affirm the order if the evidence is sufficient to support any one of the

grounds found by the district court. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

III. STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

Section 161.001 of the Texas Family Code sets forth the grounds upon which the

court may involuntarily terminate a parent-child relationship. TEX. FAM. CODE ANN. '

161.001 (West Supp. 2010).

The trial court may order termination if it finds by clear and convincing evidence

that the parent has knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of the

child. Id. ' 161.001(1)(D). Endangerment is defined as exposing to loss or injury, to

7 jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.–Fort Worth 2003, no pet.).

Under subsection (D), we examine the evidence related to the environment of the child to

determine if the environment is the source of endangerment to the child=s physical or

emotional well-being. In re D.T., 34 S.W.3d 625, 632 (Tex. App.–Fort Worth 2000, pet.

denied).

The parent=s conduct does not necessarily have to be directed at the child. See

Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 195 (Tex.

App.–Houston [1st Dist.] 2005, pet. denied). Conduct that subjects a child to a life of

uncertainty and instability endangers a child=s physical and emotional well-being. See In

re S.D., 980 S.W.2d 758, 763 (Tex. App.–San Antonio 1998, pet. denied). A parent's

mental state may be considered in determining whether a child is endangered if that

mental state allows the parent to engage in conduct that jeopardizes the physical or

emotional well-being of the child. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.–Houston

[14th Dist.] 2003, no pet.); see also In re C.M.B., 204 S.W.3d 886, 895 (Tex. App.–Dallas

2006, pet. denied). Abusive or violent conduct by a parent may produce an environment

that endangers the physical or emotional well-being of the child. In re J.T.G., 121

S.W.3d 117, 125 (Tex. App.–Fort Worth 2003, no pet.). The requisite endangerment

may be found if the evidence shows a parent's course of conduct that has the effect of

endangering the child's physical or emotional well-being. See Smith v. Sims, 801

S.W.2d 247, 250 (Tex. App.–Houston [14th Dist.] 1990, no writ).

In this case, the trial court found that appellant had: (1) knowingly placed or

allowed the children to remain in conditions or surroundings which endanger the physical

8 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 provisions of a court

order that specifically established the actions necessary for 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

children. Id. ' 161.001(1)(D), (E), (O).

IV. ANALYSIS

Here, appellant does not challenge any of the specific grounds that the trial court

found to support its decision that appellant’s rights should be terminated. Rather,

appellant urges that he was denied equal protection because his rights were terminated

based on poverty, unemployment and disability. Appellant does not point to any cases

to show that he was denied equal protection. His only argument is that if he had more

money and was not disabled, he would have had the resources to have his children

returned to him. To assert an equal protection claim, a party must establish that the

challenged statute resulted in him being treated differently than others similarly situated.

In re J.M.C., 109 S.W.3d at 597.

The trial court found three grounds upon which to terminate appellant’s rights.

And the grounds are supported by evidence, which was essentially unchallenged in this

appeal. Appellant has not established that the statute resulted in him being treated

differently. We have carefully reviewed this record. Looking at all of the evidence in the

9 light most favorable to the trial court=s determination, we hold that a reasonable trier of

fact could reasonably have formed a firm belief or conviction that appellant knowingly

placed or allowed the children to remain in conditions or surroundings that endangered

their physical well-being and that he engaged in conduct or knowingly placed the children

with persons who engaged in conduct that endangered the children=s physical or

emotional well-being. Both legally and factually sufficient evidence support the trial

court=s findings under section 161.001(1)(D) and (E) of the Texas Family Code. TEX.

FAM. CODE ANN. ' 161.001(1)(D), (E). The evidence also established that appellant

clearly failed to comply with the service plan, id. § 161.001(1)(O), and the evidence

supports termination on this ground, as well. Because we find that the trial court did not

rely solely upon appellant’s poverty, disability, and employment status, but considered all

of the relevant statutory factors to be utilized before terminating a parent’s rights, we

overrule appellant’s sole issue.

V. CONCLUSION

Having overruled appellant=s sole issue, we affirm the judgment of the trial court.

ROSE VELA Justice

Delivered and filed the 5th day of May, 2011.