in the Interest of N.R., S.A.-R., and A.A.-R., Children

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00392-CV

IN THE INTEREST OF N.R., S.A.-R., AND A.A.-R., CHILDREN

----------

FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

I. Introduction

Appellant M.R. (Mother) appeals the termination of her parental rights to

her children N.R. (Nicolas), S.A.-R. (Sophia), and A.A.-R. (Alexandra),2 arguing

that there is insufficient evidence to show that termination is in the children’s best

interests. We will affirm the trial court’s judgment.

1 See Tex. R. App. P. 47.4. 2 We use aliases for all of the children throughout this opinion. See Tex. R. App. P. 9.8(b)(2). II. Factual and Procedural Background

The Department of Family and Protective Services (DFPS) received its first

referral alleging physical abuse by the father of the children, E.A. (Father), on

July 26, 2005. About a year later, on August 29, 2006, DFPS received a second

referral for physical abuse. DFPS sent the case to Family-Based Social Services

(FBSS) and Catholic Charities and DFPS offered services in an effort to keep the

family intact. DFPS was called again on March 20, 2007, May 31, 2008, and

October 20, 2008. These investigations were disposed of as either unable to

determine or ruled out. In June of 2008, Father was convicted of assaulting

Mother in May 2008.

By late 2008, Mother was living with F.B. (Boyfriend), who was twenty

years her senior. Boyfriend has a long criminal history, including three felony

convictions for burglary, one conviction for assault and bodily injury to a woman,

two convictions for carrying an unlawful weapon, and one felony conviction of

injury to a child. DFPS again visited Mother and the children on December 29,

2008. The DFPS worker noted that the children were not receiving appropriate

medical care. Medical records established that all three children had staph

infections, scabies, and boils. The DFPS worker also noted that Mother allowed

the children to play in the street unsupervised. The DFPS worker found reason

to believe that Mother was negligent in supervision, medical care, and physical

neglect.

2 DFPS opened an Intensive Family Based Social Services case in March

2009. Both Mother and Boyfriend failed to complete any of the services offered,

which included parenting classes, anger management, random drug testing, and

family counseling. Mother attended some counseling sessions, but stopped

because Boyfriend accused her of having an affair. Mother refused to allow the

children to attend daycare and refused to seriously address the cycle of violence

her children had been observing. DFPS workers observed Boyfriend verbally

abusing Mother in front of the workers and the children.

Mother and Boyfriend moved to a motel during the FBSS investigation.

They moved to four different motel rooms during the investigation, often not

telling investigators that they had moved. The motel room that the family was

living in was filthy. Boyfriend made the children sleep on the floor with dog feces

and urine. The FBSS worker, Jennifer Crawford, testified that she offered Mother

housing through DFPS but that Mother refused the housing because Boyfriend

would not be allowed to live with her because of his criminal background.

In October 2009, Crawford took Mother and the children to Wal-Mart to buy

the children some clothes. Mother had no car seats in the car, and the children

were standing up in the back seat. Mother was unable to control the children in

the store. Nicolas repeatedly ran away and hit Crawford. The store asked

Mother to leave because the children were so disruptive. Crawford tried to get

Nicolas evaluated at a psychiatric hospital, but Mother refused, explaining that

her pastor was going to ―pray the demon behavior out of him.‖

3 On October 23, 2009, DFPS attempted a family team meeting with Mother,

Boyfriend, Father, and Mother’s sister. Boyfriend did not attend the meeting.

Mother refused to place the children with her. DFPS then went to the motel to

take possession of the children. A DFPS worker noticed spots on Sophia’s back,

which the worker realized were scabies. The children had scratched themselves

so severely that the wounds had become infected, and they had permanent

scars. The children were taken to the hospital, where it was also discovered that

they had lice. Once the children’s infections were treated multiple times, they

were put in foster care. When initially placed in foster care, Nicolas was

defecating in the closets, smearing feces on the walls, and urinating on the floor

―every other day.‖ Alexandra, who was two at the time of removal, would have

tantrums, use foul language, and show her middle finger. She would bang her

head and throw things, and if mad, urinate under her bed.

DFPS filed its petition for termination on October 26, 2009. A bench trial

was held on September 13 and 20, 2010. The trial court found by clear and

convincing evidence that Mother (1) knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered their physical or

emotional well-being, and (2) engaged in conduct or knowingly placed the

children with persons who engaged in conduct that endangered the children’s

physical or emotional well-being; and that termination of the parent-child

4 relationship is in the children’s best interest.3 See Tex. Fam. Code Ann. §

161.001(1)(D), (E), (2) (Vernon Supp. 2010). The trial court appointed DFPS as

the permanent managing conservator of all three children. This appeal followed.

III. Sufficiency of the Evidence

Mother does not complain about the sufficiency of the evidence to support

the trial court’s findings that she violated subsections (D) and (E) of section

161.001(1). Instead, she limits her appeal to the sufficiency of the evidence to

support the trial court’s finding that termination of her parental rights is in

Nicolas’s, Sophia’s, and Alexandra’s best interests.

A. Standard of review

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); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―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 erase them permanently—to divest the parent and child of all legal rights,

3 The trial court’s order also terminated Father’s rights, but he did not appeal the judgment.

5 privileges, duties, and powers normally existing between them, except for the

child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); 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 M.C.T., 250 S.W.3d 161, 167 (Tex.

App.—Fort Worth 2008, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). Termination decisions must be supported by clear

and convincing evidence. Tex. Fam. Code Ann. § 161.001; see id. § 161.206(a).

Evidence is clear and convincing if it ―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.‖ Id. § 101.007 (Vernon 2008). Due process demands this

heightened standard because termination results in permanent, irrevocable

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002);

see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for

termination and modification).

In reviewing the evidence for legal sufficiency in parental termination

cases, 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

6 proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the

evidence in the light most favorable to the finding and judgment. Id. This means

that we must assume that the factfinder resolved any disputed facts in favor of its

finding if a reasonable factfinder could have done so. Id. We must also

disregard all evidence that a reasonable factfinder could have disbelieved. Id.

We must consider, however, undisputed evidence even if it is contrary to the

finding. Id. That is, we must consider evidence favorable to termination if a

reasonable factfinder could, and disregard contrary evidence unless a

reasonable factfinder could not. Id.

We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness-credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as they

are not unreasonable. Id. at 573.

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon 2008).

The following factors should be considered in evaluating the parent’s willingness

and ability to provide the child with a safe environment:

(1) the child’s age and physical and mental vulnerabilities;

7 (2) the frequency and nature of out-of-home placements;

(3) the magnitude, frequency, and circumstances of the harm to the child;

(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;

(5) whether the child is fearful of living in or returning to the child’s home;

(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home;

(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;

(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;

(9) whether the perpetrator of the harm to the child is identified;

(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;

(11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time;

(12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development;

(C) guidance and supervision consistent with the child’s safety;

8 (D) a safe physical home environment;

(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and

(F) an understanding of the child’s needs and capabilities; and

(13) whether an adequate social support system consisting of an extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116. Other, 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 child. Id. On the other hand, the

9 presence of scant evidence relevant to each factor will not support such a

finding. Id.

B. Termination was in the children’s best interests

Nicolas, Sophia, and Alexandra suffered severe psychological damage

from their time living with Mother. See Tex. Fam. Code Ann. § 263.307(b)(1),

(3)–(4), (6). Both Nicolas and Sophia have been diagnosed with Attention Deficit

Hyperactivity Disorder, and Sophia and Alexandra have been diagnosed with

Adjustment Disorder. Nicolas has also been diagnosed with Oppositional/Defiant

Disorder. The children have witnessed years of domestic violence and drug

abuse. See id. § 263.307(b)(7), (8). Nicolas was very aggressive, and he talked

about monsters living in his closet. Alexandra told the children’s counselor that

Boyfriend hit Mother, hit her, and then ―she began to hit herself in the face.‖

Sophia told the counselor that ―Grandpa‖ pulled Mother’s hair and that Sophia

cried behind the bed.

Although Mother testified that she was no longer with Boyfriend, there was

also testimony that Mother and Boyfriend had been seen together. A social

worker for Catholic Charities testified that ―all the indicators, all the traits‖ of

Boyfriend being a sociopath ―were there.‖ See id. § 263.307(b)(6). Boyfriend

was verbally and physically abusive to Mother, once injuring her so badly she

went to the hospital. See id. § 263.307(b)(7). Boyfriend had no regard for the

return of the children. He was verbally abusive to Mother in front of the children

on ―numerous‖ occasions. He used drugs in front of the children and told DFPS

10 workers that he would smoke marijuana in front of the caseworkers and there is

nothing DFPS can do about it. See id. § 263.307(b)(8), (10)–(11). Nicolas had

―explicit knowledge‖ of marijuana including how to roll a marijuana cigarette.

Boyfriend refused to comply with any of the services offered to him. He made

appointments for counseling but never showed up or called to cancel.

Mother testified that she has part-time employment with Boyfriend’s former

employer. The case worker, Shawna Lewis, testified that Mother is not putting

the needs of her children first because she has not separated herself from the

people that Boyfriend associates with. There was much testimony that Mother

repeatedly refused to put her children’s needs before the needs and wants of

Boyfriend. Despite being told that she would not get her children back if she

continued to live with Boyfriend, by her own testimony she did not leave him for

another eight or nine months. See id. § 263.307(b)(11). She told DFPS workers

that there were no problems with her lifestyle and that even though she missed

her children, she ―regret[ted] nothing at all.‖ She told workers that she intended

to stay with Boyfriend, get married, and ―fix up a home.‖ See id. § 263.307(b)(12)

(C)–(E).

Mother did not meet the children’s basic health needs. See id.

§ 263.307(b)(12)(A). The children were living in a squalid motel room and were

forced to sleep on a floor covered with animal feces. They had scabies that had

been untreated for so long that the children suffered from infected sores and

permanent scarring. They had staph infections, lice, and boils.

11 Nicolas needs a number of daily medications, and Mother testified that she

would make sure he got them. But the children had suffered from diseases

before that had gone untreated. Their scabies had gone untreated and led to

permanent scarring. They also had no medical attention for their staph

infections, which resulted from their unclean conditions. Mother had also

previously refused to have Nicolas evaluated at a psychiatric hospital because a

pastor ―was going to pray the demon behavior out of him.‖ The trial court could

have believed that, based on her past failures to give her children medicine,

Mother would not be able to provide Nicolas with his daily medications. See id.

§ 63.307(b)(12)(A), (F).

Mother did not know how or refused to discipline her children. See id.

§ 263.307(b)(12)(B). She ―does not believe in disciplining her children‖ and

stated to her doctor, ―Discipline and rules are not me.‖ Crawford witnessed such

misbehavior at Wal-Mart that the store asked them to leave, and a DFPS worker

stated that Mother ―acts like she doesn’t know how to raise children.‖ During

visitation, Mother did not ―redirect‖ the children’s bad behavior. Lewis explained,

―She would attempt one time to tell the children what to do, and then they would

continue and she would continue on and forget about it and let them do what

they wanted.‖ She appeared unable to handle them when they acted out.

Mother testified that she is now living in a stable home with Boyfriend’s

sister Leticia. She testified that Leticia and Boyfriend do not get along and that

Boyfriend is not allowed at Leticia’s house. The DFPS conservatorship (CVS)

12 worker testified that Leticia’s home was ―not appropriate‖ for the children and that

Leticia has a history with CPS. She testified that it was ―absolutely not‖ in the

children’s best interest to be taken out of foster care and put in Leticia’s home.

Mother has not shown that she wants or is able to protect the children from

her violent boyfriends. See id. § 263.307(b)(4), (9)–(11), (12)(C)-(E). Mother

admitted that she consciously made the decision not to go to a women’s shelter

to escape Boyfriend’s abusive behavior. She testified this was because she

heard that her children would be taken away from her if she moved to a shelter.

Instead, she chose to keep the children in squalid conditions with an abusive

mate. See In re J.R., 991 S.W.2d 318, 322 (Tex. App.—Fort Worth 1999, no

pet.) (noting evidence of abuse and neglect included children's exposure to

domestic violence). She testified that it ―hit her‖ that she needed to leave the

abusive relationship right after her children were removed and that the domestic

violence counseling she received helped her, yet she stayed with Boyfriend for

another eight or nine months. Although she testified that she did apply for

housing through DFPS but never received a housing voucher, there was much

testimony that Mother had stated that she would not leave Boyfriend.

She claimed that she did not complete her domestic violence counseling

because she did not have transportation but that she did have transportation now

through Leticia. However, there was no evidence that she had made any attempt

to re-engage in counseling since moving in with Leticia. Constance Burdick, the

social worker with Catholic Charities, testified that it takes ―a lot of work‖ and

13 ―many years‖ of counseling for battered women to deal with their issues. She

believed the ―damage done to [Mother]’s emotional well-being is extensive.‖

Mother was supposed to have twelve counseling sessions with Burdick but only

went to six. Burdick believed that more sessions would be necessary for Mother

to deal with her abuse. As of March 2010 (the last time Burdick saw Mother and

six months before trial), Burdick did not believe Mother was capable of

rehabilitation. She testified that because of the state Mother was in at the time

she stopped coming to therapy, it was ―absolutely not safe‖ for the children to be

returned to her.

Mother does not have an adequate social support system. See Tex. Fam.

Code Ann. § 263.307(b)(13). Mother told her doctor that her family had

―disowned‖ her because she would not reconcile with Father. At one time,

Mother’s sister had offered to take the children, but Mother refused to make the

decision to place her children with her sister. The sister subsequently became

pregnant and felt that she could not then take the children. Mother receives a lot

of emotional support from Leticia, but as stated above, CPS feels that Leticia’s

home is not appropriate for the children. While Mother may not currently have a

boyfriend, Mother relies greatly on men to support her, and she has a long

history of being with violent partners. The doctor who performed Mother’s

psychological evaluation described her as immature with issues about

relationships and dependency on others. See id. § 263.307(b)(6). He stated that

14 Mother ―has poor insight into her children’s developmental, emotional and

behavioral needs.‖ See id. § 263.307(b)(12)(F).

Mother failed to meet practically every goal that DFPS set for her. See id.

§ 263.307(b)(10), (11). She was set up with counseling at a women’s shelter, but

she did not go. She was set up with parenting classes, which she did not attend.

She did not go to her Counseling Addiction Treatment Services assessment or

two of the four court-ordered drug tests. Of the two drug tests she did complete,

she tested positive for marijuana both times. She stopped going to counseling

because Boyfriend accused her of having an affair. Mother did complete her

Homemaker Services and attended ―just about‖ every visitation with her children.

However, she did not meet her goals of showing her ability to parent and protect

the children, maintaining a drug-free and sober lifestyle, attaining a domestic-

violence-free environment, or demonstrating her ability to provide basic

necessities for the children. See In re S.B., 207 S.W.3d 877, 887–88 (Tex.

App.—Fort Worth 2006, no pet.) (holding that evidence of a parent's failure to

comply with her family service plan supports a finding that termination is in the

best interest of the child).

While Mother argues that she changed a lot in the months leading up to

trial, she has exhibited years of damaging behavior and has not completed any

treatment to supply her with the tools to care for herself or her children. The trial

court could believe that there was a serious concern that Mother would fall victim

to another abusive relationship and expose the children to more violence. See In

15 re J.D.B., No. 02-06-00451-CV, 2007 WL 2216612, at *3 (Tex. App.—Fort Worth

Aug. 2, 2007, no pet.) (mem. op.) (noting that a factfinder 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 C.S.C., No. 02-06-00254-CV, 2006 WL 3438185,

at *7 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem. op.) (same).

The children had been in foster care for over a year at the time of trial.

See Tex. Fam. Code Ann. § 263.307(b)(2). They have been with the same foster

family since December 2009. The children regressed when they were first

placed, but they have improved since. The foster parents provide a structured

environment, and they are capable of providing the care and services the

children need, including their basic needs and their emotional and mental needs.

The foster parents have agreed to foster them until they are adopted.

Many of the children’s behavioral issues have improved since living in foster

care. Before his foster parents put him on medication, Nicolas would defecate in

the closet, smear feces on walls, and urinate on the floor ―every other day.‖ The

CVS worker testified that he is a ―different child since they put him on

medication.‖ Now he is compliant and listens to his foster parents. When first

placed in foster care, Alexandra would ―flip you off,‖ use profanity, throw

tantrums, bang her head on the walls, and urinate and defecate on the floor. She

is no longer urinating on the floor and her tantrums are not as long. Sophia was

very anxious but now has a lot more tolerance for difficulty. Because they have

16 improved so much since being in foster care, Lewis believes all of the children

are adoptable.

Giving due consideration to evidence that the trial court could have found

to be clear and convincing, and based on our review of the entire record, we hold

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

the termination of Mother’s parental rights would be in the children’s best

interests. Accordingly, we hold that there was sufficient evidence to support the

trial court’s best-interest finding. We overrule Mother’s issue.

IV. Conclusion

Having overruled Mother’s sole issue, we affirm the trial court’s judgment.

LEE GABRIEL JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL JJ.

DELIVERED: May 12, 2011