ACCEPTED
01-15-00556-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/1/2015 4:52:17 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00556-CV
In the Court of Appeals for the First District of Texas at Houston, Texas FILED IN 1st COURT OF APPEALS
___________________________________ HOUSTON, TEXAS 10/1/2015 4:52:17 PM
In the Interest of S.R.-M.C., Child CHRISTOPHER A. PRINE __________________________________ Clerk
RAC, Sr. aka RC, Appellant v.
Department of Family & Protective Services, Appellee
____________________________________
On appeal from the Harris County District Court 313th Judicial District; No. 2010-08247J
____________________________________
APPELLEE’S BRIEF
____________________________________
VINCE RYAN
COUNTY ATTORNEY
State Bar #99999939
Sandra D. Hachem (SBN 08667060)
Sr. Assistant County Attorney 1019 Congress, 17th Floor Houston, Texas 77002
Telephone: (713) 274-5293 Facsimile: (713) 437-4700 Email: sandra.hachem@cao.hctx.net ATTORNEY FOR APPELLEE,
DEPARTMENT OF FAMILY &
PROTECTIVE SERVICES
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... ii INDEX OF AUTHORITIES.................................................................................... iii ABBREVIATIONS .................................................................................................iv STATEMENT OF THE CASE .................................................................................iv REPLY POINT .........................................................................................................iv STATEMENT OF FACTS ........................................................................................ 1 SUMMARY OF ARGUMENT ................................................................................. 7 ARGUMENT AND AUTHORITIES ........................................................................ 9
REPLY POINT ONE: The evidence sufficiently supported the court’s findings for termination of RC’s parental rights .................................................. 9 1. The Claims, the Law and Standard of Review ........................................ 9 2. The unchallenged finding under Subsections (O) concerning RC’s failure to comply with the court’s order for reunification is binding in this court’s review and warrants parental termination... ....... 12 3. The undisputed fact that the father made no effort to contact the child and admitted his lack of resources or ability to parent coupled with the fact he took no action to comply with the court ordered service plan, other than allowing DNA testing, supported the court’s finding under N. ......................................................................... 14 4. There was sufficient proof for the trier of fact’s finding that termination was in the child’s best interest considering the evidence in support of Subsections N and O ............................................... 16
PRAYER FOR RELIEF .......................................................................................... 19
CERTIFICATE OF SERVICE ................................................................................ 20 CERTIFICATE OF WORD COUNT COMPLIANCE ........................................... 20
Appendix ........................................................................................................ attached ii
INDEX OF AUTHORITIES
CASES PAGE
In re A.V., 113 S.W.3d 355 (Tex. 2003) .................................................................. 14 In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).. ...................................................9, 11, 18
In re E.A.F., 424 S.W.3d 742 (Tex. App.― Houston [14th Dist.] 2014, pet. denied)................................................................. 10
In re E.C.R., 402 S.W.3d 239 (Tex. 2013) .............................................................. 18 Holick v. Smith, 685 S.W.3d 18 (Tex. 1985) ............................................................. 9 Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) ....................................................... 17 In re J.F.C., 96 S.W.3d 256 (Tex. 2002) ................................................................. 11 In re J.O.A., 283 S.W.3d 336 (Tex.2009) ................................................................. 9
In re U.P., 105 S.W.3d 222 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) .....................................16, 17
STATUTES Tex. Fam. Code An. §101.007 (West 2014) ............................................................ 11 Tex. Fam. Code Ann. §161.001 (West 2008) ......................................v, 9, 10, 13, 15 Tex. Fam. Code Ann. §263.307 (West 2014) .......................................................... 17
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ABBREVIATIONS
In this Brief, the following abbreviations will apply:
PARTIES RC: refers to the Appellant, the Father/Respondent.
RM: refers to the Mother, the Respondent at trial.
SC: refers to the child at issue in this appeal APPELLATE RECORD:
CR: refers to the Clerk Record RR-2: refers to the 2nd Volume of the Reporter’s Record with trial testimony.
RR-3: refers to the 3rd Volume of the Reporter’s Record containing exhibits.
STATEMENT OF THE CASE
On August 29, 2014, the Department filed a motion to modify and suit for protection of the subject child (SC). CR1 89. A bench trial was held on May 13, 2015. CR 103. A judgment was thereafter signed on June 2, 2015 that terminated the parent-child relationships of the RM (mother), and RC (Father) of SC. CR 105- 06. Per Tex. R. Civ. P. 306, the judgment as to both parents recited the predicate bases warranting parental termination under Subsections (N) and (O) of Section 161.001(1) of the Family Code. Id. RC filed a timely notice of appeal. CR 114. The brief on behalf of RC to which this brief responds challenges the sufficiency of the evidence for the finding that termination was in the child’s best interest, and the predicate finding under Subsection N.
REPLY POINT
Reply Point: The evidence sufficiently supported the court’s findings for termination of RC’s parental rights.
1 In this brief “CR” refers to the Clerk’s record filed in this appeal.
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No. 01-15-00556-CV
In the Court of Appeals for the First District of Texas at Houston, Texas
___________________________________
In the Interest of S.R.-M.C., Child
__________________________________
RAC, Sr. aka RC, Appellant v.
Department of Family & Protective Services, Appellee
____________________________________
APPELLEE’S BRIEF
__________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Department of Family & Protective Services, Appellee, [hereinafter “Department”] submits this brief in response to the brief of RC.
STATEMENT OF FACTS
On June 26, 2012, a decree was signed concerning the subject child SC and her older sister EW that placed them in the Department’s sole managing conservatorship without terminating parental rights. CR 59. At the time the order was signed, SC was 4 years old and her older sister was almost 18. RR-3 p. 17. RC was named as one of alleged fathers in the judgment, but paternity was not established at that time. CR 60. The decree removed the mother as a managing conservator and limited her rights as a possessory conservator. CR 61.
A couple years later, on July 2, 2014, the court ordered RC to remain in the courtroom to take a DNA test. Appendix,2 Attachment 1 (Image #61643812). That same month, the court ordered the parents to complete the Family Service plans that had already been on file for several months, since October of 2013, and the court attached the October plans to the court’s order. CR 71. The October service plans recited the Department’s concerns and goals as well as tasks for each parent to complete. RR-3 p. 51.
The plan prepared for the alleged father, RC, included details about the Department’s concerns about the child’s family situation. RR-3 p. 52; Se also CR 82. In particular, it described the child’s mother as violent and out of control with discipline methods that were disproportionately harsh. Id. It also noted that RM had physical altercations with her oldest child on a regular basis. Id. It noted that the mother had no stable residence, was living in a hotel that was not appropriate for the youngest child to live in, and that the mother had a history of homelessness. Id. The Department’s plan also expressed concern that the mother appeared unconcerned about SC being in a safe and protected environment. RR-3 52.
One of the general goals of the plan was for each parent to “show the ability to parent and protect the child.” RR-3 p. 52. In connection with that goal, the plan specified numerous tasks the parents should complete; and for the father, RC, in
2 The appendix contains documents that did not appear in the clerk’s record, but the Department requested the clerk to supplement the appellate record with them.
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particular, it required that: (1) the father maintain a positive support system that is safe, crime free and drug free; (2) that he submit to DNA, (3) successfully complete parenting classes, (4) provide his caseworker sources of income for him and his child by the 15th of each month and maintain stable employment for at least six months; (5) provide the worker with release of information forms, (6) participate in meetings and court hearings regarding his child and provide truthful information; (7) maintain stable and safe housing for at least six months (8) complete a psychological evaluation and (8) participate in drug/alcohol testing. RR-3 p. 53-54.
On September 12, 2014, the court signed an order that formally adjudicated RC as the child’s father.3 Appendix, Attachment 2 (Image #62545110). Trial commenced about nine months later: on May 13, 2015. RR-3 p. 4. Neither parent was at trial. The mother told her attorney she had just gotten out of the hospital and did not feel up to coming. RR-2 p. 13.
The caseworker, Jamelle Gibbs, was the only witness at trial. She acknowledged that the mother had been named possessory conservator of the child since 2012 (over 3 years earlier). RR-2 p. 14-15. She noted after she was named possessory conservator, the Department asked the mother to participate in two
3 This interlocutory order was later incorporated into the court’s final judgment. CR 111.
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service plans, but the gist of both plans was basically the same thing: that she acquire stable employment and housing. RR-2 p. 15.
The Department’s caseworker did not believe the mother showed compliance in her services; and, in particular, she did not take her drug tests and had not found housing. RR-2 p. 18-19. The caseworker did not believe she had completed anything from her service plan. RR-2 p. 16. She acknowledged the mother told her she was employed at Zone D’Erotica but she did not provide any pay stabs or proof of income. RR-2 p. 16. Consequently, the caseworker had no proof that she could provide the child with a safe and stable environment. RR-2 p. 16. In fact, she had no evidence that the mother even wanted to parent the child. RR-2 p. 16-27. She stated while over the years the mother had indicated she wanted to provide for the child, since September 2014 she continued to just tell the caseworker that the Agency could have her child. RR-2 p. 17. Consequently, she did not believe she wanted to parent the child. RR-2 p. 17.
The caseworker acknowledged that the mother’s access to the child had been limited by the court in an order before the present motion to modify was filed. RR- 2 p. 17-18. She noted that occurred around March of 2014. RR-3 p. 27. She indicated the court limited her access because she would tell the child not to listen to any other adult and the child’s behavior went in a negative direction after her visits. RR-2 p. 18. The mother did not do anything to reinstate her visitation and
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access. RR-2 p. 19. After her rights to visits and access were limited, she asked about her child only about four times, and the caseworker believed she essentially abandoned the child. RR-2 p. 19.
The caseworker stated that the child’s father was living in Indianapolis, “India [sic.].”4 RR-2 p. 10. The caseworker mailed him a plan of service and went over it with him by phone. RR-2 p. 20. She stated he gave a DNA sample in 2014 as required by the plan, but did not complete the plan. RR-2 p. 20-21. In particular, she noted he did not visit the child and never reached out to the Department to set up visits or phone contact. RR-2 p. 21. She also noted he did not provide for his child financially and never sent the child letters, gifts, support or clothing. RR-2 p. 21-22. He essentially abandoned her. RR-2 p. 22.
The caseworker stated she believed the father abandoned the child, because it had been four years and he failed to show any interest in her whatsoever. RR-2 p. 30. She noted he did not write the child, and did not attempt to video chat, or phone the child. RR-2 p. 33. Also, when the caseworker spoke with the father about parenting the child, he responded that he was not able to parent and added he was not stable. RR-2 p. 22. He stated he had a job, but was not working much and suggested maybe one of his sisters could get the child. RR-2 p. 22. The
4 This is obviously a typo. The address of RC was in Indiana. RR-3 p. 17.
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caseworker stated she had no evidence that he was financially able to parent the child or that he could provide a safe and stable home. RR-2 p. 22.
The father told the caseworker about two relatives, but she noted if she had not asked the father about potential relatives, her conversation with him would have ended there. RR-2 p. 22-23. As to the two relatives the father referred her to for placement, they both lived in Indiana. RR-2 p. 23. She stated that ICPC requests were submitted for those individuals. RR-2 p. 23. However, the first proposed relative, an aunt, was denied, because she failed her FBI background check; and the second was denied due to noncompliance. RR-2 p. 23.
The caseworker stated that SC is a sweet little girl, but her parents had not been able to provide her with the basic things needed to thrive and live. RR-2 p. 24. She noted the child had been in care for four-plus years, had been in numerous placements and deserved stability. RR-2 p. 24.
The caseworker noted the child was at that time in a foster home where she had been for a year and all her physical and emotional needs were met there. RR-2 p. 12-13. The caseworker acknowledged the agency had not identified an adoptive placement for the child yet. RR-2 p. 25. Nevertheless, she stated if the court terminated the parents’ rights that would open up the pool to where she could actually be broadcasted to obtain permanency. RR-2 p. 25.
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The caseworker noted the child was diagnosed with mood disorder and ADHD but was responding positively to the medications to address those conditions. RR-2 p. 13. She stated she believed the Department would be able to find an adoptive home for the child once she is freed for adoption and believed it would be in the child’s best interest. RR-2 p. 32.
SUMMARY OF ARGUMENT
The Appellant’s Brief of the Father (RC) challenges the sufficiency of the evidence to support some of the findings in support of the court’s decision to terminate his parental rights. Namely, the brief challenges the legal and factual sufficiency of the evidence to support the court’s findings that termination was in the child’s best interest and that RC constructively abandoned the child for a finding under Subsection N. Those challenges should be overruled, because the evidence supported the court’s finding under N as well as the best interest finding.
Moreover, the brief does not challenge the court’s findings regarding RC’s failure to comply with the court order for reunification for a finding under O. That omission impacts this court’s review, because that unchallenged finding is binding in this court’s review, obviates the need for review of the challenge to Subsection N and provides support for the court’s finding that termination was in the child’s best interest.
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In addition, the evidence in this case is essentially undisputed in support of the court’s conclusion that parental termination was in the child’s best interest. This child has not received the basic things a child needs from a parent for the last four years while this child has lingered in foster care and there is no indication that RC ever reached out to this child. While this father complied with a court order to undergo DNA testing to find out his paternity, that was the extent of his efforts. He did not do anything else the court ordered in the plan that was created for his child’s benefit to try and come up with a permanent solution.
Also, it is undisputed that the father did not believe he was able to parent considering his instability and the only reason the caseworker learned about relatives from his family was because she asked him to provide that information. She basically indicated he was apathetic in his response to this child. He did not write the child, made no efforts to speak or meet with the child and did nothing to provide emotional or financial support for this child. The caseworker was correct in her conclusion that he abandoned this child.
While an adoptive home had not yet been located for this child, the caseworker believed there would be a greater opportunity for that option if the parents’ rights were terminated. Under those circumstances, the caseworker was correct in concluding that parental termination would provide the only plan for this child’s best interest and hope for permanency with a family. Consequently, the
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evidence was essentially undisputed under these facts to support the court’s conclusion that parental termination was in the child’s best interest. The challenges to that judgment should be denied and the judgment affirmed.
ARGUMENTS AND AUTHORITIES
REPLY POINT: The evidence sufficiently supported the court’s findings for termination of RC’s parental rights.
1. The Claims, the Law and Standard of Review It is acknowledged that the involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.3d 18, 20 (Tex. 1985). However, it is also acknowledged that a child’s emotional and physical interests cannot be sacrificed merely to preserve that right. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Consequently, there can be circumstances when termination of parental rights is warranted.
In this State, it is legally recognized that parental termination can be warranted if a court finds by clear and convincing evidence that (1) the parent committed at least one of the predicate acts listed under the statutory list provided at section 161.001(1) of the Family Code; and (2) that termination is in the best interest of the child. Tex. Fam.Code Ann. § 161.001(1), (2) (West 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In this case, the trial court found parental termination warranted on clear and convincing evidence that the father (RC) committed the predicate acts described at subsections N and O of section
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161.001(1) of the Family Code and that parental termination was in the child’s best interest. CR 114.
In this appeal, the Appellant’s Brief challenges the legal and factual sufficiency of the evidence for the court’s finding that parental termination was in the child’s best interest and for the predicate act described at subsection N. Appellant’s Brief does not challenge the evidence in support of the predicate act described at subsection O. The failure to challenge the court’s finding under O is significant in this court’s review for three reasons.
First, it is significant, because unchallenged predicate findings are treated as binding on appeal. See In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.―Houston [14th Dist.] 2014, pet. denied). Second, since only one predicate finding is required to support a court’s decision to terminate parental rights that means this court need not review the challenge in Appellant’s Brief to Subsection N in order to affirm the trial court’s decision to terminate RR’s parental rights. Id. Third, because the finding of Subsection O is supportive of a best interest determination, this binding finding impacts this court’s review of the challenge in Appellant’s Brief to the finding concerning best interest. Id.
As far as the Standard of Review for the challenge in Appellant’s Brief, it is acknowledged that the Family Code imposes a heightened standard of proof at trial described as “clear and convincing.” See Tex. Fam. Code Ann. §161.001 (West
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2008). The Family Code also specifically defines that standard to mean “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 An. §101.007 (West 2014).
The heightened standard of proof at trial requires an appellate court to consider that standard when reviewing challenges to the sufficiency of the evidence. See In re C.H., 89 S.W.3d at p. 25 (Tex. 2002) (“burden of proof at trial necessarily affects appellate review of the evidence.”); In the Interest of J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). In that connection, both legal and factual sufficiency challenges consider the standard of proof for clear and convincing evidence by considering whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the State's allegations. See In re C.H., 89 S.W.3d at p. 25 (Tex. 2002); In re J.F.C., 96 S.W.3d at pp. 265-66; Tex. Fam. Code Ann. 101.007 (West 2014).
In In re J.F.C. the Supreme Court explained, in light of the identical inquiries made to the clear and convincing standard, the distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one in some cases, but clarified that there is a distinction in how the evidence is reviewed. 96 S.W.3d at p. 266. The court explained that in a legal sufficiency review, a court should look at all of the evidence in the light most
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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, giving appropriate deference to the trier of fact. Id. In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing and with respect to disputed evidence, a court should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. 96 S.W.3d at pp. 266-67.
2. The unchallenged finding under Subsections (O) concerning RC failure to comply with the court’s order for reunification is binding in this court’s review and warrants parental termination.
As already discussed, the trial court’s finding under Subsection O is not challenged in this appeal and, as such, it is binding in this court’s review of this appeal. Nonetheless, the facts entailed in that finding should be briefly mentioned to emphasize its importance in review of the trial court’s decision to terminate RC’s parental rights.
Subsection O involves a finding that the parent failed to comply with the provisions of a court order that specifically established the actions necessary for
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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. Tex. Fam. Code Ann. 161.001(1)(O) (West 2008). The facts related to this finding in this case should be considered because they illustrate an important reason why the court correctly determined parental termination was warranted.
Namely, as explained in the service plan ordered in this case, its purpose was to help RC provide his child with a safe environment within a reasonable period of time and warned that failure to do so could result in termination of parental rights. RR-3 p. 56. In this regard, the specific goals listed for both parents involved the parents showing their ability to parent the child with appropriate resources, as well as extending appropriate affection and demonstrating the ability to bond with the child. RR-3 p. 52-53. The tasks in the plan supported those goals by requiring the parents to maintain positive support systems, learn parenting skills, provide proof of adequate income, participate in court hearings and meetings regarding the child, and maintain a safe and stable home where the child could live. RR-3 p. 53-54.
The caseworker confirmed she went over the service plan with the father on the phone; therefore, RC would have known that doing things that would show his ability and willingness to assume the responsibilities of a father-daughter
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relationship was essentially what was being asked of him. RR-2 p. 20. However, by the time of trial, the father did not complete anything ordered in that plan except for the DNA testing to confirm his paternity. RR-2 p. 20-21. In addition, it does not appear he wanted to work on this situation, because when he was asked whether he wanted to parent his child, he merely stated that he was not able to parent his child and talked about his lack of stability. RR p. 22. The caseworker acknowledged she had no evidence to indicate he had stability, but that really did not explain why he was unwilling to work on doing anything that would help his child. Consequently, the evidence indicated he simply was apathetic about the situation of this young child and that proved he had an inappropriate parental relationship. Such evidence provided pivotal support for the court to find a predicate basis warranted termination of RC’s parental rights and supported the court’s finding as to best interest as well. Consequently, the court’s finding on this unchallenged ground includes important facts relevant to review in this appeal.
3. The undisputed fact that the father made no effort to contact the child and admitted his lack of resources or ability to parent coupled with the fact that he took no action to comply with the court ordered service plan, other than allowing DNA testing, supported the court’s finding under N.
As already mentioned, because there is no challenge to the predicate finding under O, the finding under N need not be considered. In re A.V., 113 S.W.3d 355 (Tex.2003). Nonetheless, the facts in support of that finding are equally
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important in illustrating why the court found parental termination warranted. Therefore, it shall be addressed.
Section 161.001(1)(N) of the Family Code provides a predicate basis for parental termination on clear and convincing proof that the parent:
constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months, and:
(i) the department or authorized agency has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment.
Tex. Fam. Code § 161.001(1)(N) (West 2008).
The evidence in this case provided undisputed proof in support of all of the elements of proof required for this finding, because:
1. It was undisputed that the child was in the Department’s temporary or permanent managing conservatorship for approximately four years. RR-
2 p. 24.
2. It was undisputed that the Department made reasonable efforts to return the child to RC by administering a family service plan for him during these proceedings and ensuring he would be ordered to submit to DNA testing in that plan. RR-2 p. 20; RR-3 p. 51; In re G.S., slip op. at p. 11, No. 14-14-00477-CV (Tex. App. – Houston [14th Dist.] 2014, no pet. h.)
(mem. op.) (“Implementation of a family service plan by the Department is ordinarily considered a reasonable effort to return a child to its parent.”).
3. The evidence was undisputed that RC did not reach out to contact the child or make arrangements to visit or phone, did not financially provide for the child or ever send letters or gifts. RR-2 p. 21-22.
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4. The evidence was undisputed that RC stated he was not able to parent, talked about his lack of stability and the caseworker had no evidence he was employed or had the financially ability to support the child. RR-2 p.
22.
Appellant’s Brief essentially claims this evidence is insufficient because the Department did not do enough to encourage the father considering he was out of state and lacked stability. Nevertheless, the Department did make efforts by assuming the responsibility of caring for his child while offering him a plan over several months for him to show a willingness to care for his child’s needs. While the father obviously had barriers caused by his geographic location and financial circumstances, those barriers were within his control. In addition, those barriers did not explain why he did not at least try to phone the child or send letters or gifts. The record shows that RC simply did not do anything to demonstrate he cared. And as correctly observed by the caseworker, it had been too long a time for this child to have to wait to be cared by a parent when neither parent demonstrated the willingness or ability to do so. The evidence in this case was conclusive as a matter of law that RC constructively abandoned this child.
4. There was sufficient proof for the trier of fact’s finding that termination was in the child’s best interest considering the evidence in support of Subsections O and N.
A strong presumption exists that the best interest of the child is served by keeping the child with its natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Nevertheless, when a child comes
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into care because a parent is neglectful to the child’s basic needs, the parental presumption cannot prevail over the child’s safety. In that connection, Section 263.307(a) provides a prompt and permanent placement of the child in a safe environment is presumed in a child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014). Section 263.307(b) of the Family Code lists a number of factors a court may consider in deciding a parent’s willingness to provide a child with a safe environment and, those factors consider issues such issues as parental drug use and the willingness to cooperate with the Department for reunification, factors relevant in this case. Tex. Fam. Code Ann. 263.307(b) (8) & (10).
In addition, the Supreme Court has articulated a number of factors that can also be considered in determining the best interest of the child. Those factors include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976); In re U.P., 105 S.W.3d at 230.
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1. Needs and Dangers As already discussed, there was conclusive proof that RC constructively abandoned his child and had not provided for this child financially or emotionally. Such apathy not only shows RC would not ever provide for this child’s needs, but endangered his child’s emotional security and stability. This provided conclusive support for the court’s finding that parental termination was in the child’s best interest.
2. Stability and Compliance with Services As already discussed, there is undisputed evidence that RC failed to comply with his service plan and that supported the court’s finding under Subsection O. This same evidence supports the court’s best interest finding. See In re C.H., 89 S.W.3d at 27-28; See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (noting reasons supporting finding under Subsection O may also support best interest finding.). On the relevant evidence under O, as discussed above, the court had conclusive proof to find RC lacked stability or willingness to comply with a plan to obtain stability and that evidence supported the finding that parental termination was in the child’s best interest.
3. Child’s Desires and Proposed Placement It was undisputed that the child was in Department care for over four years and RC had not done anything to personally assume responsibility for the child or
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acquire an emotional attachment with the child. Also, RC admitted he could not parent and lacked stability, and did not do anything during this case to show he had interest in changing that situation. In the meantime, the child remained in foster care and while the caseworker acknowledged an adoptive home had not been found, she believed there could be an opportunity if parental rights were terminated. Given these facts, the child’s obvious desire to be a child loved in a stable and permanent home weighed in favor of parental termination.
In conclusion, the record in this case conclusively establishes that parental termination was in the child’s best interest, primarily based on the same evidence that supported the court’s findings under Subsections N and O. As there was no disputed evidence of any significance to outweigh that conclusion, the trial court’s findings should be affirmed.
WHEREFORE, PREMISES CONSIDERED, the Department requests that this court affirm the trial court’s judgment and for such other and further relief to which it may be entitled in law or in equity.
Respectfully submitted,
VINCE RYAN
COUNTY ATTORNEY
By: /s/ Sandra Hachem
Sandra Hachem State Bar 08667060 Sr. Assistant County Attorney 1 1019 Congress, 17th Floor Houston, Texas 77002
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Phone: 713/274-5293; Fax: 713/437-4700 Email: sandra.hachem@cao.hctx.net Attorney for Appellee,
Department of Family & Protective Services
CERTIFICATE OF SERVICE
I hereby certify that on this the 1st day of October, 2015 a true and correct copy of the foregoing brief was sent to all parties to this appeal by sending a copy by electronic transmission to the Appellant (RC) care of his attorney of record, Donald Crane at donmcrane@gmail.com, and to the Attorney and Guardian Ad Litem for the Child, Sylvia Escobedo, at her fax number: 713/583-4877.
/s/ Sandra Hachem
Sandra Hachem
CERTIFICATE OF WORD COUNT COMPLIANCE
This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing computer generated brief consists of no more than 15,000 words, excluding the caption, identify of parties and counsel, table of contents, index of authorities, statement of the case, statement of issues presented, statement of procedural history, signature, proof of service, certification, certificate of compliance and appendix. Relying on the word count of the computer program used to prepare this document, the number of words, subject to count under the rules, is 4,674 words.
/s/ Sandra Hachem
Sandra Hachem
21
No. 01-15-00556-CV
In the Courts of Appeals for the First District of Texas at Houston, Texas
___________________________________
In the Interest of S.R.-M.C., Child
__________________________________
RAC, Sr. aka RC, Appellant v.
Department of Family & Protective Services, Appellee
____________________________________
Appendix
Order for DNA testing………………………………………………...Attachment 1 Order Determining Paternity………………………………………….Attachment 2
Tab 1 Order for DNA testing
JAMELLE GIBBS 182-3
TIFFANY DIXON 182-3
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/fj\ fAUSE NO. 2010-08247J 'i;,:,
IN THE INTEREST OF~-; t\Y~::-d \l \\ '''~ F I .L E D IN THE DISTRICT COURT OF Chrrs Daniel
District Clerk
S R -M C JU ~SCOUNTY,TEXAS Time:
-"""j:i;';~~f:h,-.-l.--
CHILD BY_ _ _"""n":::~~~--..113TH JUDICIAL JUVENILE DISTRICT ORDER FOR DRUG / ALCOHOL / D.N.A. SCREENING
The following person(s) are ORDERED to:
[XX] Report in person IMMEDIATELY to: Avertest c/o National Screening Center2525 Shadel and Ave.; Building 30, Door II / Indianapolis, IN 462 I 9- I 787,3 I 7-353-3395 ['vj Remain in the Courtroom;
[ ] Allow National Screening Center to collect sample at _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Each individual is ORDERED to remain in their respective location until samples have been drawn. Each individual named herein is ORDERED to provide such personal sample(s) as may be necessary for National Screening Center to perform the ORDERED Drug / Alcohol / D.NA screening as follows:
NAME: DOB TDL/ID/SS# TEST
I. R A C XXX-XX-
For Official Governmental Use Only - Do Not Disseminate to the Public: 61643812 - Page 1 of 1
I IUDS
Relationship ALLEGED FATHER ofS R -M C I I HAIR IXXI D.N.A.
I IETG
I z'T.
I K2.
I Bath Salts
(UDS = Urine Drug Screen; ETG = Alcohol Test; HAIR = Hair Follicle Drug; D.N.A. Paternity Testing; z'T. = Zero Tolerance)
It is further ORDERED that: ] Each party named above is responsible and shall pay for each test administered [XX] The costs of the test shall be paid as follows: _HUDA:URR~IS.!...C:::.O~UN~T....!Y_ _ _ _ _ _ _ _ __
The COURT reserves the right to re-allocate the costs of the test(s) between the parties. It is ORDERED that as soon as the results of the test(s) are available, National Screening SHALL fax OR deliver the results, with CASE NUMBER, to the 313th District Court at FAX # 713-222-4845 for filing with the court under seal. National Screening shall also provide the PRINTED NAME of the person transmitting the FAX results, the method(s)'by which the person tested was identified and the date and time the sample was taken.
SIGNED ON: _ _ _ _ _ _ _ _ _ _ _ __ JUD E
I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.
Witness my official hand and seal of office this October 1, 2015
Certified Document Number: 61643812 Total Pages: 1
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com
Tab 2
Order Determining Paternity
F I LED ",~\-'f.
Chris Daniel
District Clerk
IJ· e....
Y . -,J
JAMELLE GIBBS 182-3 o.RJGINAL SEP ~4 2014 ~ T1me:_...,.,....-:--:=---.--=:-:---
TIFFANY DIXON 182-3 Harris County, Texas By__________-=~~----~----
Deputy
CAUSE NO~ 2010-08247J
IN THE INTEREST OF IN THE DISTRICT COURT OF S R -M C HARRIS COUNTY, TEXAS CHILD 313TH JUDICIAL JUVENILE DISTRICT
ORDER ESTABLISHING PARENTAGE
On September 12, 2014, a hearing w p to Family Code, Chapter 160, to determine the parentage of the child S R -M C .
1. Appearances
1.1. The Department of Family and Protective Services (''the Department") appeared through JAMELLE GIBBS, caseworker, and by attorney and announced ready.
1.2. Respondent MOTHER R M M A R For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 1 of 5
M K AKA R M M K
M
o appeared in person and annoU:I1ced ready.
o appeared through attorney of record and announced ready ..
o appeared In person and through attorney of record _____________________________________________ and announced ready.
o waived issuance and service of citation by waiver duly filed.
o agreed to the terms of this order as evidenced by signature below.
~lthough duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
1.3. Respondent ALLEGED FATHER R A C AKA R C .
o appeared in person and announced ready.
o appeared through attorney of record and announced ready.
o appeared In person and through attorney of record _______________--:-_---:-_-:--_ and announced ready.
o waived issuance and service of citation by waiver duly filed.
o agreed to the terms of this order as evidenced by signature below.
~though duly and properly notified, did not appear and wholly made default.
o was not notified, and did not appear.
RECORDER'S MEMORANDUM
This ins1rument is of poor quality ~O=-rd':'"'"er-=Es-:-ta-:-:blish:-:-:-ing-::P:-are-n:-tag-e---------------------- at the time of imaging. 2010'{)8247J 1313th Page 1 Amanuensis 4.0 1.4. Respond t ALLEGED FATHER D M o appe d in person and announced ready.
o appear through attorney of record and announc d ready:
o appeared In person and through att ey of record _ _ _ _~------- and announced ready.
o waived iss e and service of citation by waiver duly filed.
o agreed to the te s o this order as evidenced by signature below.
~though duly and properly notified, did not appear and wholly made default.
'--El was not notified, and did not appear.
1.5. SYLVIA YVONNE ESCOBEDO, appointed by the Court as Attorney and Guardian Ad Litem of the child the subject of this suit, ~peared and announced ready.
/ 0 ;greed to the terms of this order.
o agreed to the terms of this order, but did not appear o although duly and properly notified, did not appear.
1.6. Also Appearing _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 2 of 5
2. The Child
This parentage order adjudicates parentage of the following child:
Name: S R -M C Sex:
Date of Birth:
3. Findings: Alleged Father R A C AKA R
C
3.1. R A C AKA R C Established as Father of
the Child S R -M C
3.1.1. The Court finds that the es exclude R A C AKA R C as the father, and that he has at cent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing and a combined paternity index of at least 100 to 1 wi the child S R -M C born on to R M M /
Order Establishing Parentage 201~8247 J I 313th Page 2 Amanuensis 4.0 3.1.2. S THE ORDERED that R A C , AKA R C is, and he is hereby adjudicated as the father of the child S R -M C .
3.1.3. The Court finds that it is in the best interest of the child to limit the rights and duties of each parent appointed as a temporary possessory conservator.
SIGNEDthis _ _ dayof SEP 0 92014 ,2014.
Respectfully Submitted,
JUDGE ~
SIDiNG'
~
Vince Ryan
Harris County Atto
SPN# 9 999
Atri la 8. S ·ckling
Assistant County Attorney For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 3 of 5
2525 Murworth Drive, Suite 300 Houston, Texas 77054-1603 State Bar # 24062183
email: amelia.strickling@cao.hctx.net phone: 713-578-3900 fax: 713-578-3995
Order Establishing Parentage 2010-00247J 1313th Page 3 Amanuensis 4.0
'A &OMOSOMAL lA~s 1825 W CREST LANE
PHOENIX, AZ 85027 US.A.
+ 1:623.434;0292(0)
7#' +BOde~TeCMOI09)',.
+1.623.321:6118 (F)
·www.chromosomal-labs.Com wyvw.l:lOdetech.com
For ReportConsultation Please Contact:
National Screening Ceht.er TPA.Cc:lse NO TPA,GASE # 407 F;3nnirl Street Logged 7/11/2014'
Houston.lX77002 Case;No. PL 14-0991'5 713~226~ 7847 HIIlIIlUlllllllmOllllHlOIlmll unu
No. Name "t R
Pa t ernuy '. .~gCl.ITes t ·e po rtL
Relationship Collected Race/Ethriiclty
14~11663 .'
S C Child - 7/9/20t4 14-08913 R C .. Alleged Father Black 7/812014
14·11663 ....." 14.()8913 ; Patemity LOci 1----.~A':":'IIf)-:I.....,e-:A.....,·.---..;.,r'-'-'...;.;....-A~I::-le-:-le-=B--+-----A~lIe.:::-le'"""·.~A.;.;,;
. ...;.;....~~-,.'-~A~II=-"'e':-Ie-:B~··------t Index (Pi)
08S1179 " 1 3 1 6 1 5 1 6 5 . 3 1 ..
D21S11 27~.1 28 33.1192 D7S820 911' 9 1 0 ', 1~57 CSF1PO ...
03S1358 17 18 15184.39 THO,1 8_9.3. 8 9;3 '3.67 013S317 .. 1112 11 '. 2.09 0016S539' 913.1} -131.5 02S1338 20. 2220 225.59 For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 4 of 5
Ot9S433 ' 13 ····13,2 1314.2 0.838 vWA 1 7 1 7 5 : 3 9 TPOX 8 7.8 1.35 018S51 17 17 18 3.01 AMEL x_ X Y 1 05S818 12 1310 13 1m FGA 19 25 ',19 '214.51:
Combined Paternity Index .. 3.132;000 Probability >99.999%
Interpretation: T~~, r~~ults il'ldicate that the. $lIeged: father cannot be excluded as the biological father of the child. The reported probability as compared to 'anunreiated,untested man ofthe same race. is calculated assuming aprlor probability of O~5. .
Chrom()somal Labs:~ Bode Technology is anAABBAccredited Relationship Testing ,Facility.
"'-
STATE OFARIZONA
COUNTY OF MARICOPA .
ACknOWledg~; m~r
".
/> 114
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Notary Public
PL 14~09915 Page 1 of 2
." '." . . . . . . _.1\ SOlubonPoint: Internatioral,lnc. (o~lp~ny •• wW1'I.s01l!tion'pOinUntLc:um, . .
New YcrK. \\,.shlng!D~, DC .• ,tartor). LEne>,'. PhlX'IIiX • ~lI1'DI'.'go '.Uaf.,;]r;(1 .'.Da.I'JS·' ("I(~'9i) •. L0~ I\ng':":'" .~dn t'rilllu;r.;o • Pdlm Beacri • Londan·. Jubi! • R'.yadh·
Relationship Testing - Ca$e Natrcdive
Analytical Platform
Paterriity testresults and conclusions:ar~founded in stati,stics and probabilities, The greater'the number of g~netic markers examined; the greater the strength oft~e genetic evidence andhencethegreaterlhe reliabilityo!the'finalresult.
Chror'[1osomal Labs • Sope Techr;lOlogy tests a minimum oft6 DNA markers in routine relationship testing, The 16 mark~r technology can achieve a probability of identity of 1in 40 quintillion,or 1 in 40,000,000,000,000;000,000~ Pat~rnity ,laws Jend'to'Vary from state to :state, The following web link provides a nice synopsis ,for manystates~ http://lawdigest.uslegaLcom/paternitylgeneraL' ' " """ , Amended Reports
Reports documerited a?;?lJP(3rsedinga,nother report have beer\, Clmended and may hayechange!) to test, results;,and/or conclusions,
Extended Testing
For the, majority of pat ern itycases, the 16 genetic markerpanelismore:than adequate, However, spedal circumstances can require ,extended testing to obtain a statistically desirable result. This typically occurs when there is;asingle,genetic mutati6rlodhem6thefis noiincluded ,in the test. Extended testing: options can include testing the mother, adding more autosomaFgenetic: loci,orY chromosome 'testing; if the child is a male, During,case ~review our doctors ma,y determine that exterided testing is necessary or statistically useful, and will make recommendatimls for extended tests that are lik(3ly to be the,m6stproductive~ ,'"
Moth~rless Testing
In,relati6nship testing, every effort sll,ouldbe:ma(j(3 !p ,testlhe mother when she is, available, DNA testing ,of. tile mother, even if maternity is no! disputed, impTPves the,'chance of obtaining' COnclusive results and is a quality control check for both' th~ scientific, and legal qommunity; !oensure, the,co,rrectchildwastested, Whilft motherless paternity testing is a relatively cOrnrT)On practice, it can present a number of problems; ranging from inconclusive results, or in the cas,e of For Official Governmental Use Only - Do Not Disseminate to the Public: 62545110 - Page 5 of 5
incest or rela!e,crallegedfathers, a f~lseinclusion, "
Y:;ChromosomeTesting in R,elationship Studies The Y chrQrT)psome is male specific and passes thrOUgh generations unchange.d from father 10 son, In circumstances where an alleged father i$: unavailable for testing oris' deceased, a, male child can be tested against any-' humbe(ofhis male relatives including, out not limited to,othednown male child rEm, brothers and half brothe(s with the same fathef:;.
uncles; a grandf(lther, and grandfather'sibrothers, 'Since the Ychromosome is only found in m'ales, this type of testing is notu$~ful for femaleoffsprin~, This testis alSO'riof appropdaleforpaternity in circumstances Where there are two related aJleg~d fathers.
Genetic··,lnconsistencies(IVILitatiOrts)
Genetic inconsisterities(mutations) are naturally occurringmismcilches between a 'Child and .the alleged parent The'
freqUencies of. these naturally occurring mismatches are' fact6red:int6the ·finalcombinedpaternity index, Due to the nature of these calculations, the statistical value 6f the result is significaritly reduced; therefore some degree of extended testing IS requiredJoobtaih aGonciusive·result .. . . .
Result.h'terpret,Cltion~'Relations~ip Studies the results of siblingship; aVuncular and grand paternity testing c:lre, gen~rally rep:orted as the likelihood, in support of or againslanallege'd relationship, While interpretation' ofthe strength onhe statisti.c:alvalue can be variable,andshould;
ultimately be considered ih;context with all case circumstances; the table below slimmarizes Ruolished interpretative'
criteria for use as a guide, .
..
..
Combined Likelihood Ratio ... ....
~
Probability
..
·..Value ofEvldencelrl.Support ofHvpothesis <OAO' ... <.:28:6% Genetic evidence d6es riot supp6rthvp6thesis .. 0.40tol,6 28;6'% to 61 ,5% .....Neutral ~ Inconclusive ..
>t,6J6JO .6t;6% t6'90,90% LimitedSuppo"rt'
;':10 to 100 ··90:91.%·t099,00% Moderate Support", >100to 1000 99,01% ·:99,90% .StrongSUQQor\ ...
... .. -
>1,000 >99,90% .. VeJYStron~SuJ2!:l.ort
Page'2of2 0613.1 4 Rev 11 Case Narrative
I, Chris Daniel, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date.
Witness my official hand and seal of office this October 1, 2015
Certified Document Number: 62545110 Total Pages: 5
Chris Daniel, DISTRICT CLERK HARRIS COUNTY, TEXAS
In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com