Opinion issued December 13, 2012.
In The Court of Appeals For The First District of Texas ———————————— No. 01-12-00434-CV ——————————— IN THE INTEREST OF T.L.S. and E.A.S.
On Appeal from the 313th Judicial District Court Harris County, Texas Trial Court Case No. 2011-03971J
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, J.E.S., challenges the trial court’s
order, entered after a bench trial, terminating her parental rights to her two minor
children. In three issues, appellant contends that the evidence is legally and
factually insufficient to support the trial court’s findings that she engaged in
conduct or knowingly placed the children with persons who engaged in conduct
1 See TEX. FAM. CODE ANN. § 263.405(a) (West Supp. 2012). which endangered the physical or emotional well-being of the children,2 she left
the children alone or in the possession of another without providing adequate
support for the children and remained away for a period of at least six months,3 and
termination of her parental rights was in the best interest of the children.4
We affirm.
Background
On June 9, 2011, the Texas Department of Family and Protective Services
(“DFPS”) filed a petition to terminate appellant’s parental rights to her children.
DFPS attached to its petition the affidavit5 of Edwin Turcios, a DFPS investigator
assigned to appellant and her children. Turcios testified that on October 27, 2010,
DFPS received a referral alleging neglectful supervision by appellant and her
husband of their two children. In the referral, it was alleged that the parents did
not “provide adequate care for the children,” both parents had used
“drugs/marijuana,” and, because the children had been left with “an elderly relative
2 See id. § 161.001(1)(E) (West Supp. 2012). 3 See id. § 161.001(1)(C). 4 See id. § 161.001(2). 5 At the beginning of trial, DFPS asked the trial court to “take judicial notice of the contents of your file,” specifically noting that it included “an order of paternity which includes [appellant’s husband] as father of the children.” On appeal, DFPS includes the affidavit as part of the evidence at trial, noting that this Court has considered such affidavits, when judicially noticed without objection, as part of the evidence supporting the trial court’s findings. See In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc). 2 who could not watch the children,” the children “ended up wandering a few blocks
away from the house.”
In his affidavit, Turcios further testified that on October 29, 2010, Child
Protective Services (“CPS”) caseworker Shanna Rogers visited appellant’s home
and spoke to Sue Smith, appellant’s grandmother and the woman who had
allegedly been watching the children. Smith said that she would watch the
children “when she needs to” and she had a brain tumor that did not “affect[] her
ability to function.” She said that she allowed the children to play in the backyard
unsupervised “for about 15 minutes” and they “get out sometimes,” but she later
said that the children “always have someone watch them when they are outside.”
Rogers later spoke with Adult Protective Services (“APS”) caseworker Philip
Weaver, who said that although Smith “does have mental age related memory
loss,” she “is physically able to care for the children for a couple of hours at a
time.”
Rogers also spoke to appellant’s neighbors, who said that appellant “has
parties until late at night when [Smith] is out of the house” and “hides drugs in the
flower pots at the house.” Rogers then spoke with Brenda Sowder, the mother of
appellant’s half-brother. Sowder described appellant’s house as “a total mess” and
3 “chaotic.” She stated that appellant and her husband6 took “Xanax bars” and
“never have any food to eat for the children.” At one point, Sowders’s son told her
that “someone that looked like he was in a gang busted into their house in the
middle of the night who beat up this guy that [appellant] was having sex with.”
She further said that appellant and her husband would “drain [Smith] for all her
money and . . . steal her money” and the children are “always stuck at home” with
Smith. She said that Smith was “scared” of appellant so Smith would not attempt
to leave the situation.
On January 10, 2011, Weaver reported that appellant had left Smith at the
house and taken the children with her. The next day, DFPS received information
that the children were being cared for by Cinnamon Phillips, appellant’s mother.
On February 1, 2011, Turcios visited Phillips’s home, and Phillips stated that
appellant had left the children at her home and Phillips did not know of appellant’s
whereabouts. She further stated that appellant “did not provide birth certificates,
shot records or social security cards for the children.” Turcios noted that
appellant’s children “appeared to be well cared for with no obvious signs of abuse
or neglect.” One of the children told Turcios that Phillips “always has a lot of food
and he is happy at home with her.” On May 19, 2011, Phillips informed Turcios
6 At trial, appellant’s husband submitted an affidavit voluntarily relinquishing his parental rights to the children. See TEX. FAM. CODE ANN. § 161.001(K). 4 that appellant was incarcerated, was “about to be released” and, upon her release,
would reside with Phillips and the children.
At trial, DFPS caseworker Jhillian Tillis testified that the children came into
the care of DFPS “due to allegations of neglectful supervision.” Appellant was
allegedly leaving the children “with an elderly caregiver,” and both parents were
using . . . drugs and marijuana.” At the beginning of the case, both parents were
residing in a homeless shelter, and DFPS found the children living with Phillips in
January 2011. Tillis stated that appellant was still incarcerated on March 27, 2012,
the day of trial, for the offense of forgery, and appellant was scheduled to be
released in November 2012. She opined that appellant had not seen the children
since July 2011, when she was initially incarcerated. Since appellant’s
incarceration, she had not contacted Tillis to request visits with the children.
Appellant also had not provided “any money or any kind of support” or maintained
“any significant contact with the children.” However, Tillis did testify that
appellant had sent her letters “asking how [the children] are doing.” Tillis stated
that appellant had nevertheless demonstrated a pattern where she “drops her kids
on relatives and takes off.”
On cross-examination, Tillis admitted that she had no “personal knowledge”
as to whether appellant used narcotics or of the state of the home when the children
were in the care of Smith. Instead, Tillis explained that she had heard of these
5 allegations “through the referral.” She noted that appellant lived with Smith during
the time that Smith was caring for the children. And Tillis admitted that the letters
written to her by appellant “demonstrate[d appellant’s] concern about the
children.”
Phillips testified that she had taken care of both of appellant’s children since
January 2011, prior to which the children had not been left with her. Before the
children were dropped off at her house, Phillips would occasionally visit the
children, and she had “typical mother worries” about their living situation, such as
the house not always being clean. She opined that it was in the best interest of the
children to remain with her and she “need[ed] to put [herself] in some sort of
situation where [she could] receive assistance from CPS.” Appellant had sent
Phillips one to two letters a week to inquire about the children’s well-being, and
appellant seemed “happy” that the children had been placed with Phillips. On
cross-examination, Phillips testified that she did not “have a problem” with
appellant visiting the children and the children wanted to see appellant. She
further testified that she did not believe that appellant would endanger the children.
DFPS also introduced into evidence appellant’s criminal record, which
indicated that, between October and December 2010, she had been charged with
two state jail felony offenses of forgery, one state jail felony offense of debit card
abuse, and one state jail felony of theft of $1,500 or more but less than $20,000.
6 The record also reveals that appellant, on April 6, 2011, was convicted of the
misdemeanor offenses of possession of a dangerous drug, driving while
intoxicated, and theft of over $50 and under $500.
Standard of Review
A parent’s right to “the companionship, care, custody, and management” of
her children is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal
citation omitted). The United States Supreme Court has emphasized that “the
interest of parents in the care, custody, and control of their children . . . is perhaps
the oldest of the fundamental liberty interests recognized by this Court.” Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas
Supreme Court has also concluded that “[t]his natural parental right” is “essential,”
“a basic civil right of man,” and “far more precious than property rights.” Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings
should be strictly scrutinized. Id.
Because termination “is complete, final, irrevocable, and divests for all time
that natural right . . . , the evidence in support of termination must be clear and
convincing before a court may involuntarily terminate a parent’s rights.” Id.
(citing Santosky, 455 U.S. at 747, 102 S. Ct. at 1391; Richardson v. Green, 677
S.W.2d 497, 500 (Tex. 1984)). Clear and convincing evidence is “the measure or
7 degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” TEX. FAM.
CODE ANN. § 101.007 (West 2008); In re E.N.C., No. 11-0713, 2012 WL 4840710,
at *4 (Tex. Oct. 12, 2012); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because
the standard of proof is “clear and convincing,” the Texas Supreme Court has held
that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–66.
In conducting a legal-sufficiency review in a parental-rights termination
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm
belief or conviction about the truth of the matter on which DFPS bore the burden
of proof. See In re E.N.C., 2012 WL 4840710, at *5 (citing In re J.F.C., 96
S.W.3d at 266). In viewing the evidence in the light most favorable to the finding,
we “must assume that the fact finder resolved disputed facts in favor of its finding
if a reasonable fact finder could do so,” and we “should disregard all evidence that
a reasonable fact finder could have disbelieved or found to be incredible.” In re
J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d at 266).
In conducting a factual-sufficiency review in a parental-rights termination
case, we must determine whether, considering the entire record, including both
evidence supporting and contradicting the finding, a fact finder reasonably could
8 have formed a firm conviction or belief about the truth of the matter on which the
State bore the burden of proof. Id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We
should consider whether the disputed evidence is such that a reasonable fact finder
could not have resolved the disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d at 266–67. “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, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006).
Abandonment
In her second issue, appellant argues that the evidence is legally and
factually insufficient to support the trial court’s finding that she left the children
alone or in the possession of another without providing adequate support for the
children and remained away for a period of at least six months. See TEX. FAM.
CODE ANN. § 161.001(1)(C) (West Supp. 2012).
In proceedings to terminate the parent-child relationship brought under
section 161.001, DFPS must establish, by clear and convincing evidence, one or
more of the acts or omissions enumerated under subsection (1) of section 161.001
and that termination is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001. Both elements must be established, and termination may not be based
9 solely on the best interest of the child as determined by the trier of fact. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). “Only one predicate
finding under section 161.001(1) is necessary to support a judgment of termination
when there is also a finding that termination is in the child’s best interest.” In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003).
The court may terminate the parent-child relationship if the court finds by
clear and convincing evidence that the parent has left the child alone or in the
possession of another without providing adequate support for the child and
remained away for a period of at least six months. See TEX. FAM. CODE ANN.
§ 161.001(1)(C). This ground is commonly characterized as the “abandonment” of
a child by a parent. Jordan v. Dossey, 325 S.W.3d 700, 726 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied); In re T.B.D., 223 S.W.3d 515, 518 (Tex. App.—
Amarillo 2006, no pet.). The six-month period must be a period of at least six
consecutive months. Jordan, 325 S.W.3d at 727.
At trial, Tillis testified that appellant had “left” the children with Phillips and
demonstrated a pattern where she “drops [the children] on relatives and takes off.”
Phillips testified that the children were left with her in January 2011, although she
had never taken care of the children before. She first testified that it was “about
four months” until the children saw appellant again, when Phillips “may have
made a trip to Waco” to see appellant. However, Phillips then explained that
10 appellant did not actually come to see the children until July 2011.7 From the time
that appellant first left the children with Phillips, appellant did not provide Phillips
with any “financial assistance” or “any support” for the children. Phillips further
testified that she was in need of financial assistance at the time of trial, stating that
she “need[ed] to put [herself] in some sort of situation where [she could] receive
assistance from CPS.” Appellant did write Phillips “[o]ne or two letters a week,”
asking “how the children are doing.” However, her only contact with the children
was “[o]ver the phone once, maybe” in March 2011. In addition, in his affidavit,8
Turcios testified that appellant simply “dropped [the children] off” with Phillips in
January without informing Phillips of her whereabouts. Appellant also did not
provide Phillips with “birth certificates, shot records or social security cards for the
Appellant argues that by leaving the children with Phillips, who has
demonstrated that she can care for the children, appellant has provided “adequate
support” of the children under section 161.001(C), citing Holick, 685 S.W.2d at 18. 7 The record is unclear as to appellant’s whereabouts from January to July 2011. In his affidavit, Turcios notes that, at the time the affidavit was sworn, June 9, 2011, appellant was “reportedly living in a temporary homeless shelter.” Tillis testified that appellant had been incarcerated “since early July of 2011.” 8 Although the panel expresses its concern with the practice of relying on judicially- noticed affidavits, not formally introduced into evidence at trial, as evidence supporting the trial court’s findings in termination cases, we are nevertheless obligated to follow this court’s precedent in relying on such affidavits when they are “judicially noticed without objection.” See In re V.V., 349 S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). 11 In Holick, the mother left her two children with another family, and the family later
petitioned to terminate the mother’s parental rights and adopt the children. Id. at
19. The Texas Supreme Court, in regard to section 161.001(C), held that a parent
is merely required to “make arrangements for adequate support rather than
personally support the child.” Id. at 21. Noting that the family did not expect the
mother to send financial support, the court held that by leaving the children with
the family, the mother had made arrangements for adequate support, and her
parental rights could not be terminated because of abandonment. Id.
Here, however, there is no evidence that when appellant left the children
with Phillips, appellant had made any arrangements to provide any assistance or
had reached an agreement with Phillips that no such assistance was needed.
Rather, Phillips stated that appellant “dropped [the children] off” without
informing Phillips of her whereabouts, and appellant failed to provide Phillips with
“birth certificates, shot records or social security cards.” At trial, Tillis testified
that appellant simply “left [the children] with” Phillips and had “drop[ped] her kids
on relatives and take[n] off.” And Phillips testified that appellant had never
provided her with any financial assistance, despite the fact that Phillips was in need
of such assistance. Although appellant sent Phillips letters inquiring about the
children’s well-being and told Phillips that she was “happy” that the children were
staying with Phillips, there is nothing in the record to indicate that appellant had an
12 agreement or an understanding with Phillips that she would take care of the
children without any assistance or support. Thus, the trial court could have
reasonably concluded that appellant had failed to provide adequate support or
“make arrangements” to provide adequate support for the children during the
months in question. See Jordan, 325 S.W.3d at 728 (“[U]nlike in Holick, there
was no understanding between Akin and Jordan that Jordan would not be sending
support because Akin could provide adequate support on his own.”).
Appellant also argues that the evidence is insufficient to prove that she
remained away for six months, relying on In re T.B.D., 223 S.W.3d at 515. In In
re T.B.D., the father “attempted to make contact through correspondence” to his
children during his incarceration. Id. at 519. The court noted that although a
parent’s imprisonment can be a factor in abandonment cases, it is not conclusive.
Id. (citing In re B.T., 954 S.W.2d 44, 49 (Tex. App.—San Antonio 1997, pet.
denied)). It then held that the evidence was insufficient to support a conclusion
that the father had abandoned the children. Id. Appellant notes that both Tillis and
Phillips testified that appellant had written letters inquiring about the well-being of
the children. However, there is no indication that the letters were addressed to the
children, and both Tillis and Phillips testified that they did not share the letters with
the children. Furthermore, there is no indication that appellant was incarcerated
from January to July 2011, as was the father in In re T.B.D. On the contrary, in his
13 affidavit, Turcios testified that on June 9, 2011, appellant was “reportedly living in
a temporary homeless shelter.” And Tillis testified that appellant was not initially
incarcerated until July 2011, which was the last time that appellant had seen the
children. See Jordan, 325 S.W.3d at 728 (“Although an inmate’s sole means to
communicate with a young child is by letter, that type of communication is wholly
inadequate when the person lives in the same city and is physically capable of
maintaining personal contact with the child.”). And although Phillips testified that
she “may” have taken the children to Waco “about four months” after January
2011 and appellant “maybe” tried to contact the children by telephone in March,
she also testified that appellant made no efforts to visit the children until July 2011.
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have reasonably formed a firm belief or
conviction that appellant had left the children alone or in the possession of another
without providing adequate support for the children and remained away for a
period of at least six months. See TEX. FAM. CODE ANN. § 161.001(C).
Furthermore, considering the entire record, we conclude that the trial court could
have reasonably formed a firm belief or conviction that appellant had left the
children alone or in the possession of another without providing adequate support
for the children and remained away for a period of at least six months.
14 Accordingly, we hold that the evidence is legally and factually sufficient to support
termination of appellant’s parental rights under section 161.001(C).
We overrule appellant’s second issue.9
Best Interest
In her third issue, appellant argues that the evidence is legally and factually
insufficient to prove that termination of her parental rights was in the best interest
of the children. See TEX. FAM. CODE ANN. § 161.001(2).
In determining whether the termination of appellant’s parental rights was in
the children’s best interest, we may consider several factors, including (1) the
children’s desires, (2) the current and future physical and emotional needs of the
children, (3) the current and future physical danger to the children, (4) the parental
abilities of appellant, (5) whether programs are available to assist appellant in
promoting the best interests of the children, (6) plans for the children by appellant,
(7) the stability of the home, (8) acts or omissions of appellant that may indicate
that the parent-child relationship is not proper, and (9) any excuse for acts or
omissions of appellant. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In
re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The
Holley factors are not exhaustive, and there is no requirement that DFPS prove all
9 Having concluded that the evidence is legally and factually sufficient to support termination of appellant’s parental rights under section 161.001(1)(C), we need not address appellant’s first issue in which she challenges the sufficiency of the evidence under section 161.001(E). See In re A.V., 113 S.W.3d at 362. 15 factors as a condition precedent to parental termination. See In re C.H., 89 S.W.3d
at 27.
In regard to the children’s desires, Phillips did testify that she “believe[d]
that the kids want to see” appellant and would be “happy to see her.” However,
she also testified that the children do not ask about appellant and seem less
“worried or upset” since Phillips started taking care of them. In regard to the
present and future emotional and physical danger to the children, Phillips testified
that she did not believe visiting appellant would endanger the children. However,
Turcios, in his affidavit, indicated that appellant had hidden narcotics in flower
pots around her home, took “Xanax bars” with her husband, and had left the
children with Smith, who had failed to properly supervise the children. Tillis also
testified that appellant had used “drugs and marijuana” and refused to take a court-
ordered drug test. And appellant had been charged with the state jail felony
offenses of theft and forgery, allegedly forging two checks from Smith, with whom
appellant and her children had previously lived. A parent’s prior use of narcotics
and criminal history may support a finding that termination of parental rights is in
the best interest of a child. In re U.P., 105 S.W.3d 222, 231 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied).
In regard to the parenting abilities of the individuals seeking custody,
Turcios, in his affidavit, established that neighbors had reported that appellant
16 would throw “parties until late at night” with “the kids running around
unsupervised.” Sowder reported that appellant “never [had] any food to eat for the
children.” And Phillips testified that when she first started caring for the children,
they “weren’t eating right,” “were addicted to sugar,” and had “horrible” sleep
patterns. Phillips, however, cooked “every night” and kept the children “on a
routine.” In regard to any acts or omissions that may indicate the existing parent-
child relationship is not proper, Phillips noted that when the children first came
into her care, they were “afraid of being left” alone, as if Phillips “wasn’t going to
be there” or would not “pick them up from daycare.” And Tillis testified that
appellant would frequently leave the children with relatives and “take[] off.”
In regard to programs available to assist appellant in promoting the best
interests of the children, although Tillis testified that appellant had “completed
some NA and AA classes and life skill classes,” she also testified that appellant
had failed to complete all the services under her “family plan of service.” In
regard to the stability of appellant’s home, Turcios, in his affidavit, noted that
Sowder had described the home as “messy and chaotic,” and, at the time the
affidavit was sworn, appellant was reportedly living at a temporary homeless
shelter. Tillis testified that, “[i]n the beginning of the case, both parents were
residing in a homeless shelter.” And, at the time of trial, both Tillis and Phillips
testified that appellant was incarcerated and scheduled to be released in November.
17 Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the trial court could have formed a firm belief or conviction that
termination of appellant’s parental rights was in the best interests of the children.
See TEX. FAM. CODE ANN. § 161.001(2). Furthermore, considering the entire
record, although there is some evidence that the children wanted to see appellant
and appellant had completed some classes as part of her service plan, we conclude
that the trial court could still have formed a firm belief or conviction that
termination of appellant’s parental rights was in the children’s best interests.
Accordingly, we hold that the evidence is legally and factually sufficient to support
the trial court’s finding that termination of appellant’s parental rights was in the
best interest of the children.
We overrule appellant’s third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Higley, and Sharp.