in the Interest of R.S., R.S., Jr., C.S., B.S., and A.S., Children

Opinion

NUMBER 13-09-00368-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF R.S., R.S. Jr., C.S., B.S., AND A.S., CHILDREN

On appeal from the County Court at Law No. 5 of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Chief Justice Valdez

Following a bench trial, the trial court signed judgments terminating the parental

rights of appellant, Jane,1 the mother of R.S., R.S. Jr., C.S., B.S., and A.S.2 In this

accelerated appeal, Jane challenges the legal and factual sufficiency of the trial court’s

finding that termination of her parental rights is in the childrens’ best interest. See TEX .

1 To protect the m other’s and children’s privacy, we refer to the m other as Jane, a fictitious nam e, and the children by their initials. See T EX . F AM . C OD E A N N . § 109.002(d) (Vernon 2008); T EX . R. A PP . P. 9.8(b)(2).

2 The trial court also term inated the parental rights of the children’s alleged father as well as any unknown fathers. However, they are not parties to the appeal. FAM . CODE ANN . § 161.001(2) (Vernon Supp. 2009). We affirm.

I. BACKGROUND

In December 2006, appellee, the Texas Department of Family and Protective

Services (“the Department”), became involved with Jane’s children when a report alleging

physical neglect and neglectful supervision of R.S., R.S. Jr., C.S., and B.S. was filed. The

Department received a second referral in January 2007, when A.S. tested positive for

cocaine at birth. After further investigation, the Department asked Jane to voluntarily place

the children with B.G., the children’s maternal grandmother, and offered Jane family-based

services.3

After Jane complied with some of the services, the Department allowed the children

to return to her care. On October 15, 2007, third and fourth referrals that alleged the

physical and medical neglect of R.S. and R.S. Jr. were filed with the Department. Jane

subsequently tested positive for cocaine, and the Department filed suit to terminate her

parental rights. The children were temporarily placed with a foster family until January

2008, when they were again placed with B.G. After B.G. suffered a heart attack in August

2008, the children were removed and placed with a foster family.

In April 2009, following a bench trial, the trial court signed an order terminating

Jane’s parental rights with respect to the children. This accelerated appeal ensued. See

TEX . FAM . CODE ANN . § 109.002 (Vernon 2008); TEX . R. APP. P. 28.1.

III. BEST INTEREST

In her sole issue, Jane challenges the legal and factually sufficiency of the trial

court’s finding that termination of her parental rights is in the children’s best interest. See

3 Testim ony during the bench trial defined “fam ily-based services” as a m eans of providing the parent with services such as parenting classes and substance abuse counseling.

2 TEX . FAM . CODE ANN . § 161.001(2).

A. Standard of Review

To terminate parental rights, a trial court must find by clear and convincing evidence

that the parent committed an act prohibited by section 161.001(1) of the family code and

that termination is in the best interest of the child.4 See id. § 161.001; In re J.L., 163

S.W.3d 79, 84 (Tex. 2005). “Clear and convincing evidence” is defined as the “measure

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

(Vernon 2008). This intermediate standard falls between the preponderance of the

evidence standard of civil proceedings and the reasonable doubt standard of criminal

proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83

(Tex. App.–Fort Worth 2006, pet. denied).

In reviewing the legal sufficiency of the evidence supporting parental termination,

we must “look at all the evidence in the light most favorable to the finding to determine

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

finding was true.” In re J.L., 163 S.W.3d at 85. We assume that the fact finder resolved

any disputed facts in favor of its finding if a reasonable fact finder could have done so, and

we disregard all evidence that a reasonable fact finder could have disbelieved. Id.

4 The trial court based term ination of Jane’s parental rights on the following findings: (1) she knowingly placed or knowingly allowed the children to rem ain in conditions or surroundings which endangered the physical or em otional well-being of the children; (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or em otional well-being of the children; (3) she failed to com ply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children; (4) she constructively abandoned the children; (5) she used a controlled substance in a m anner that endangered the health or safety of the children and failed to com plete a court-ordered treatm ent program , or after com pletion of a program , continued to use a controlled substance; and (6) term ination of the parent-child relationship is in the childrens’ best interest. See T EX . F AM . C OD E A N N . § 161.001(1)(D)-(E), (1)(N)-(P), (2) (Vernon Supp. 2009). On appeal, Jane challenges only the best interest finding. See id. § 161.001(2).

3 However, we must also consider undisputed evidence, if any, that does not support the

finding. Id. at 86.

In reviewing the evidence for factual sufficiency in parental termination cases, we

must give due deference to the fact finder’s findings and not supplant its judgment with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the

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

termination of the parent-child relationship would be in the best interest of the child. See

TEX . FAM . CODE ANN . § 161.001; In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). If, 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 reasonably have formed

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

insufficient. In re H.R.M., 209 S.W.3d at 108.

B. Applicable Law

When determining whether termination is in a child’s best interest, the following list

of factors should be considered: (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 parenting abilities of the parties seeking custody; (5) the

programs available to assist the parties seeking custody; (6) the plans for the child by the

parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts

or omissions committed by the parent which may indicate that the existing parent-child

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

parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not

exhaustive, and there is no requirement that the Department prove all factors as a

condition precedent to parental termination. In re C.H., 89 S.W.3d at 27. In some cases,

4 undisputed evidence of just one factor may be sufficient to support a finding that

termination is in the best interest of the child. Id. Furthermore, when the department or

another government agency is the petitioner, subsection 263.307(b) of the Texas Family

Code lists thirteen factors that the court should consider in determining whether a parent

is “willing and able to provide the child with a safe environment.”5 See TEX . FAM . CODE

ANN . § 263.307(b) (Vernon 2008). In our review of the trial court’s termination order, we

will likewise give consideration to these factors to the extent applicable. See In re R.R.,

209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re S.N., 272 S.W.3d 45, 50-51 (Tex.

App.–Waco 2008, no pet.); see also In re H.M.P., No. 13-08-00643-CV, 2010 WL 40124,

at *13 (Tex. App.–Corpus Christi Jan. 7, 2010, no pet. h.) (mem. op.) (considering the

Holley factors as well as the factors listed in subsection 263.307(b) in determining whether

5 The factors enum erated in section 263.307(b) include, am ong others, the following:

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

....

(3) the m agnitude, frequency, and circum stances 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 departm ent or other agency;

(8) whether there is a history of substance abuse by the child’s fam ily or others who have access to the child’s hom e;

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

(11) the willingness and ability of the child’s fam ily to effect positive environm ental and personal changes within a reasonable period of tim e;

(12) whether the child’s fam ily dem onstrates adequate parenting skills . . . .

T EX . F AM . C OD E A N N . § 263.307(b) (Vernon 2008).

5 termination was in the child’s best interest).

C. Analysis

1. Desires of the children

Kristen Pavelka, the Department caseworker assigned to Jane’s case, testified that

since the children have moved in with their foster family, Jane has appeared for only one

scheduled visit. Pavelka stated that during the visit, “[t]he children were happy to see

[Jane].” Pavelka also testified that although the children have stated that they miss Jane

and “love her very much,” R.S. and R.S. Jr. have stated that they understand that with their

foster parents they are “safe and . . . clean” and that their needs are being met.

2. Present and future physical and emotional needs of the children; present and future emotional and physical danger to the children; the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; excuse for the acts or omissions committed by the parent

“[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.” Williams v. Williams, 150 S.W.3d

436, 451 (Tex. App.–Austin 2004, pet. denied) (citing In re D.L.N., 958 S.W.2d 934, 941

(Tex. App.–Waco 1997, pet. denied), disapproved on other grounds by In re J.F.C., 96

S.W.3d 256, 267 (Tex. 2002) and In re C.H., 89 S.W.3d at 26); see also In re E.A., No. 13-

06-503-CV, 2007 WL 2471459, at *8 (Tex. App.–Corpus Christi Aug. 31, 2007, no pet.)

(mem. op.) (holding that where “the Department presented evidence establishing

appellant’s history of unstable housing, unstable employment, unstable relationships,

mental health issues, and drug usage,” the trial court “could have inferred that the risk

factors would continue to be present thus endangering the children’s well-being in the

future if the children are returned to appellant”).

In December 2006, the Department received a report that alleged physical neglect,

6 neglectful supervision, and drug use by Jane. Upon receipt of the report, Diana Villarreal,

an investigator for the Department, met with R.S. and R.S. Jr. Upon meeting with the

children, Villarreal noticed that the children had a “severe lice problem,” a “foul odor,” and

“a problem with their dental hygiene.” Villarreal testified that R.S. and R.S. Jr. told her that

they could not remember the last time they had showered and that “the only person that

had a toothbrush was the father.” Following Villarreal’s meeting with the children, Jane

submitted to a drug test and tested positive for cocaine.

In January 2007, the Department received another referral pertaining to Jane when

A.S. tested positive for cocaine at birth. Instead of removing the children from Jane and

taking them into custody, the Department opened a family-based services case, and Jane

voluntarily placed the children with her mother. Villarreal testified that Jane complied with

some of the services and that the children were returned to her care.

Rosemary Puerto, the nurse at R.S. and R.S. Jr.’s elementary school, testified that

the children attended her school from January 2007 until December 2007. Puerto testified

that R.S. and R.S. Jr. often arrived late to school and came to her office where she fed

them breakfast. Puerto stated that the children’s immunization records were not up-to-date

and that the children had “very, very bad hygiene,” were not bathed regularly, and always

wore dirty clothes. Puetro also testified that R.S.’s lice problem was “very severe” and that

“you would literally see them [lice] crawling, you know, the little bugs coming out of her

hair.”

Thelma Caesar, the director of a daycare attended by all five children, also testified

about the children’s poor hygiene. She stated that the children had head lice and that the

problem was “more severe” than a typical lice problem. Caesar also stated that when C.S.

took off his shoes “the odor was so bad” that “[t]he first time, I didn’t even know what it was

7 and then the children said it was his socks that was [sic] smelling.” Caesar further testified

that A.S. had diaper rash, blisters on her bottom, and “was not fresh.” The daycare staff

“would take the wippies [sic] . . . and wipe [A.S.] down each day because of the—of her not

being clean.”

Loerna Huerta, an investigator for the Department, testified that in October 2007,

the Department received a third and fourth referral. The third referral alleged that R.S. had

lice and open sores on her head from the lice. The fourth referral stated that R.S. had a

“severe case of head lice” and that Jane had done nothing to treat it. The fourth referral

also stated that R.S. Jr. “had a deformity on his head.” Huerta testified that she visited

R.S. and R.S. Jr. the day the Department received the referrals. Huerta stated that she

observed open sores, dried blood, lice, and lice eggs on R.S.’s head. She also noticed a

bump on R.S. Jr.’s head, and the children told her that they sometimes went to bed hungry.

After meeting with the children, Huerta went to the home that the children shared

with Jane and their father. Huerta spoke to the father and, apparently knowing that the

family had recently received food stamps, asked why there was no food in the home. The

father told Huerta that there was no food because “the kids ate a lot.” Huerta testified that

the house was “a little bit filthy” and “needed to be cleaned up.” The children were

removed from the home in November 2007, when Jane again tested positive for cocaine.

Pavelka testified that, at the time of trial, all five children were living together with

a foster family and “appear[ed] to be doing great.” Pavelka testified that the children were

safe and all of their scholastic and medical needs were being met. Pavelka opined that

termination of Jane’s parental rights would likely be devastating to R.S., R.S. Jr., and C.S.,

but that B.S. and A.S. “ha[d] adjusted well emotionally to their situation because they [are]

so young.”

8 Jane testified that she attempted to treat R.S.’s lice and that her children did not go

to school dirty and hungry. Jane testified that she completed parenting classes but was

unable to attend or complete any other type of counseling because of scheduling

problems. Although Jane admits that she has used cocaine, she does not feel that she

has a drug problem. Jane also testified that she did not complete the services because

she “didn’t feel like [she] needed to go to counseling or to—to the drug assessments or

anything like that.” Moreover, Jane testified that her contact with her children since their

placement in foster care has been minimal because of transportation problems.

On appeal, Jane argues that she is a young mother who “made some mistakes” but

“has taken steps to make her life better for both herself and for her children.” However,

evidence presented at trial revealed that Jane failed to comply with the court-ordered

service plan and continued to use drugs. Pavelka testified that in January 2008, the trial

court adopted a family-service plan, whereby Jane was supposed to participate in

individual and family counseling as well as parenting classes. Testimony revealed that

Jane was referred to the Texas Council on Alcohol and Drug Abuse (“TCADA”) and

recommended for substance abuse treatment for marihuana. A permanency plan report

filed in May 2008, states that Jane had not completed a drug assessment, a psychological

exam, or individual counseling. A January 2009 permanency plan report states that

although Jane completed parenting classes, she failed to implement what she learned.

Furthermore, Pavelka testified that prior to the removal of the children, Jane was

drug tested five times and tested positive four times. After removal, Jane was drug tested

eighteen times, tested positive eight times, and missed or refused to submit four times.

In January 2009, Jane tested positive for cocaine, and in February 2009, approximately

one month before the bench trial, Jane tested positive for hydrocodone, a controlled

9 substance for which she presented no prescription. Jane does not challenge the accuracy

of the drug test results and maintains that she was only a casual user.

3. Parental abilities of the person seeking custody; available assistance programs

Jane argues that she is able to care for her children because she has a home in

which she has resided the past six months and has maintained her current job for eight

months. However, Pavelka testified that Jane has lived in approximately six different

residences since November 2007. Pavelka also testified that she attempted to visit Jane’s

current residence but that Jane’s boyfriend would not allow her to enter the home. Pavelka

stated that domestic violence was a concern when she visited Jane’s residence. Although

she was unable to visit the interior of Jane’s current home, Pavelka stated that, over the

past year, she has been able to visit other homes that Jane resided in and that the homes

contained very little furniture and were “not the cleanest.”

Pavelka testified that in November 2007, Jane and her family created a service plan

that offered individual and family counseling, a psychological evaluation, referral to TCADA

for a drug assessment, and parenting classes. The court adopted the service plan in

January 2008. Testimony revealed that Jane attended two counseling sessions,

participated in a drug assessment, and completed parenting classes. After attending two

counseling sessions, Jane “no-showed” for two classes and then failed to return. The

January 23, 2009 permanency plan report states that Jane has not demonstrated that she

benefitted from the counseling sessions. Testimony also reveals that although Jane

participated in a drug assessment, she failed to attend the recommended drug counseling.

Moreover, although Jane completed parenting classes, the January 23, 2009 permanency

plan report states that she has failed to implement what she learned. Thus, although more

10 than a year has passed, Jane has failed to fully comply with these court-ordered services.

4. Plans for the children by those individuals or by the agency seeking custody; stability of the home or proposed placement

On appeal, Jane argues that her parental rights should not be terminated because

B.G., the children’s grandmother, “is still a viable option to take care of her five

grandchildren, and she is still available to assist [Jane] in taking care of her five children.”

Although the Department placed the children with B.G. from January 2008 until August

2008, B.G. informed the Department, in May 2008, that she could not handle all five

children. Therefore in October 2008, the Department placed all five children with a foster

family. Pavelka testified, at the time of trial, that Garcia was no longer a viable placement

option, and that despite a diligent search, the Department had not been able to secure

another relative placement.

Pavelka testified that since being placed with the foster family, the children have not

had lice, A.S. has been potty trained and has learned to walk, B.S. has begun to talk “a lot

more,” C.S. has “really com[e] into his own,” and R.S. and R.S. Jr. have performed well in

school. The permanency plan is for unrelated adoption. Pavelka testified that the

permanency plan was developed due to Jane’s inability to maintain a stable living

environment, concerns regarding domestic violence in Jane’s current relationship, and

continual positive drug test results.

Although parental rights are of constitutional magnitude, they are not absolute. In

re C.H., 89 S.W.3d 17, 26 (Tex. 2002). “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.”

Id. Viewing the evidence in the light most favorable to the findings, we conclude that a

11 reasonable fact finder could have formed a firm belief that termination of Jane’s parental

rights was in the childrens’ best interest. See In re J.L., 163 S.W.3d at 85. Furthermore,

we conclude that the evidence was factually sufficient because the disputed evidence

contrary to the findings was not so significant that the trial court could not have formed

such a firm conviction or belief. See In re H.R.M., 209 S.W.3d at 108. Accordingly, Jane’s

sole issue is overruled.

IV. CONCLUSION

The judgment of the trial court is affirmed.

ROGELIO VALDEZ, Chief Justice

Delivered and filed the 11th day of March, 2010.