in the Interest of Y v. a Child

• Court: Court of Appeals of Texas
• Decided: June 13, 2013
• Docket: 02-12-00514-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00514-CV

IN THE INTEREST OF Y.V., A CHILD

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

I. INTRODUCTION

Following a bench trial, the trial court signed an order terminating

appellants Father's and Mother‘s parental rights to their daughter, Y.V., and

appointing the Texas Department of Family and Protective Services

(Department) as Y.V.‘s permanent managing conservator. In his sole issue,

Father argues that the trial court erred by appointing the Department as Y.V.‘s

1 See Tex. R. App. P. 47.4. managing conservator. In her sole issue, Mother argues that termination of her

parental rights to Y.V. was not in Y.V.‘s best interest. We will affirm.

II. BACKGROUND

On July 29, 2011, an ambulance drove Y.V., who at the time was nine

months old, to Cook Children‘s Medical Center after she reportedly fell off of

Mother‘s bed. The Medical Center‘s doctors determined that Y.V. had a subdural

hematoma, a skull fracture, and retinal hemorrhaging. According to doctors, the

injuries could not have been the result of an accident or fall; rather, the diagnosis

was that Y.V. had either been shaken severely, or she had been shaken severely

as her head impacted a hard surface, causing the injuries. After an investigation

revealed that the only people who had been with Y.V. the day she was taken to

the hospital were Mother, Father, and a sibling, coupled with evidence indicating

that Mother had physically abused Y.V., the Department placed Y.V. in foster

care on August 9, 2011. The Department then sought the termination of

Mother‘s and Father‘s parental rights. At the conclusion of trial on September 5,

2012, Y.V. remained in foster care.

During the trial proceedings, both Mother and Father requested that the

trial court appoint Y.V.‘s paternal aunts as Y.V.‘s possessory managing

conservators. After hearing testimony by the Department‘s witnesses, Y.V.‘s

doctor, Mother, and Father, the trial court entered an order terminating Mother‘s

and Father‘s parental rights to Y.V. In the order, the trial court determined that

Mother and Father had knowingly placed or knowingly allowed Y.V. to remain in

2 conditions or surroundings that endangered Y.V.‘s physical and emotional well-

being; that Mother and Father had engaged in conduct or knowingly placed Y.V.

with persons who engaged in conduct that endangered Y.V.‘s physical or

emotional well-being; that Mother and Father both failed to comply with the

provisions of a court order that specifically established the actions necessary for

both to obtain the return of Y.V.; and that termination of Mother‘s and Father‘s

parental rights were in Y.V.‘s best interest. The trial court also appointed the

Department as Y.V.‘s permanent managing conservator. This appeal followed.

III. DISCUSSION

A. Father Lacks Standing to Challenge Conservatorship

In his sole issue, Father argues that there ―was no evidence or insufficient

evidence to support‖ the trial court‘s appointing the Department as Y.V.‘s

managing conservator. But because Father did not appeal the trial court‘s

findings terminating his parental relationship to Y.V., he is bound by those

findings. Father has thus become a former parent with no legal rights with

respect to Y.V. See Tex. Fam. Code Ann. § 161.206(b) (West 2008) (―[A]n order

terminating the parent-child relationship divests the parent and the child of all

legal rights and duties with respect to each other, except that the child retains the

right to inherit from and through the parent unless the court otherwise provides.‖).

Having no legal rights with respect to Y.V., Father lacks standing to attack

the portion of the termination order appointing the Department as permanent

managing conservator of Y.V. See In re H.M.M., 230 S.W.3d 204, 204–05 (Tex.

3 App.—Houston [14th Dist.] 2006, no pet.) (holding that former mother did not

have standing to appeal post-termination custody decision when she did not

appeal the termination of her parental rights); see also In re R.A., No. 07-08-

0084-CV, 2009 WL 77853, at *2 (Tex. App.—Amarillo Jan. 13, 2009, no pet.)

(mem. op.); In re S.M.C., No. 07-04-0429-CV, 2005 WL 441538, at *1 (Tex.

App.—Amarillo Feb. 25, 2005, no pet.) (mem. op.). We overrule Father‘s sole

issue.

B. The Trial Court’s Best Interest Finding as to Mother

In her sole issue, Mother argues that the evidence is legally and factually

insufficient to support the trial court‘s finding that termination of her rights to Y.V.

is in Y.V.‘s best interest. See Tex. Fam. Code Ann. § 161.001. (West Supp.

2012). We disagree.

1. Standard of Review

In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child‘s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, ―[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.‖ In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92,

(1982)). We strictly scrutinize termination proceedings and strictly construe

4 involuntary termination statutes in favor of the parent. Id.; Holick, 685 S.W.2d at

20–21.

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001 (West Supp. 2012), .206(a) (West

2008). Due process demands this heightened standard because ―[a] parental

rights termination proceeding encumbers a value ‗far more precious than any

property right.‘‖ In re E.R., 385 S.W.3d at 554 (quoting Santosky, 455 U.S. at

758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see

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

termination and conservatorship). Evidence is clear and convincing if it ―will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.‖ Tex. Fam. Code Ann. § 101.007 (West

2008).

In proceedings to terminate the parent-child relationship brought under

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

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

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

S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may

not be based 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);

In re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on

reh‘g).

5 In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We

review all the evidence in the light most favorable to the finding and judgment.

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder

could have done so. Id. We disregard all evidence that a reasonable factfinder

could have disbelieved. Id. We consider undisputed evidence even if it is

contrary to the finding. Id. That is, we consider evidence favorable to

termination if a reasonable factfinder could, and we disregard contrary evidence

unless a reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder‘s determinations as long as they are not unreasonable. Id. at

573.

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder‘s findings and do not supplant the verdict with our own. In re

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

record, a factfinder could reasonably form a firm conviction or belief that the

termination of the parent-child relationship is in the best interest of the child. Tex.

Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light

6 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 in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

2. Evidence Supports the Trial Court’s Best Interest Finding

Here, Mother does not challenge the trial court‘s findings regarding any of

the enumerated reasons for termination that are listed under subsection (1) of the

statute; rather, Mother challenges only that termination of her parental rights is in

the best interest of Y.V. See Tex. Fam. Code Ann. § 161.001.

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

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

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

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

Nonexclusive factors that the trier of fact in a termination case may use in

determining the best interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the best interest of the child;

7 (F) the plans for the child by these individuals or by the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted). These

factors are not exhaustive; some listed factors may be inapplicable to some

cases; other factors not on the list may also be considered when appropriate.

C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may

be sufficient in a particular case to support a finding that termination is in the best

interest of the child. Id. On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding. Id.

Concerning the present and future emotional and physical needs and

dangers to Y.V., the record indicates that the Department initiated this case

following an investigation that began after Y.V. was presented at the hospital with

a subdural hematoma, a right frontal skull fracture, and retinal hemorrhages.

Y.V.‘s doctor testified that the injuries were caused intentionally and not, as

repeatedly explained by Mother throughout the investigation and trial, the result

of an accidental fall from a bed. Her primary doctor testified that she was

concerned that Y.V. could be re-injured if returned to the caregivers she had prior

to going to the hospital—Mother and Father. There is also evidence that Y.V.‘s

injuries were caused by more than one episode of Y.V. having been shaken

8 severely, or shaken severely to the point that her head impacted something hard,

causing visible abrasions on her forehead as well as the skull fracture.

Y.V.‘s injuries could cause life-long complications. Doctors testified that

Y.V. has seizures and weakness on the right side of her body due to the injuries

she sustained prior to being brought to the hospital. At the time of trial, Y.V.

remained on seizure medication, and she was continuing occupational and

speech therapy. Y.V.‘s long-term prognosis is that doctors expect Y.V. to have

some type of deficit. And although the hope is that Y.V. can eventually stop

taking seizure medications, doctors believe that Y.V. will always have some level

of seizure activity in her brain. In the future, Y.V. will need weekly occupational

and speech therapy, and she will also need to see a neurologist annually. Due to

her medical needs, Y.V., presently and in the future, needs a caregiver who

understands when to take her to the doctor and when to ask questions of medical

staff.

But despite these injuries to Y.V. and her present and future medical

needs, there is strong evidence that Mother denies that Y.V. ever has been in an

environment that is dangerous to her physical health. Mother insisted throughout

the investigation and at trial that Y.V.‘s injuries were the result of her falling from

the bed to the floor. She testified that she did not think anyone had hurt Y.V.

And she also alleged that Y.V.‘s seizures and throwing up were due to hospital

medical staff, and not due to injury. Evidence presented at trial indicates Mother

not only denies Y.V.‘s needs but that Mother has never contacted Y.V.‘s doctors

9 to gather information about providing the proper care for Y.V. Even after hearing

the doctor‘s testimony at trial, Mother testified that she did not know what a

hematoma or a skull fracture were, and there is evidence in the record that

Mother cannot recognize the symptoms of a seizure.

There is also evidence in the record that acts and omissions by Mother

indicate that the existing parent-child relationship with Y.V. is not a proper one.

In addition to denying that Y.V. was injured or that her symptoms were the result

of injury, Mother testified at trial that she is in the United States illegally and that

she drives every day despite not having a driver‘s license. Furthermore,

evidence at trial indicates that Mother has a history of denying injury to her

children, and that she has fled the country to Mexico to avoid the Department‘s

involvement with another of her children and alleged sexual abuse by Father.

Mother testified that she has allowed her other children to live with

unconventional freedoms that might hinder proper emotional development.

Notably, one of Mother‘s other daughters left home to live with her boyfriend in

Mexico when the daughter was only fifteen years old. Another of Mother‘s

daughters became pregnant with her first child at sixteen, moved in with her

twenty-year-old boyfriend when she was only seventeen, and was pregnant with

her second child at seventeen.

Finally, we look to the evidence concerning the stability of the home or

proposed placement of Y.V. As a threshold matter, we address Mother‘s claim

that the trial court erred by not placing Y.V. with her paternal aunts. Both Mother

10 and the Department spent copious amounts of briefing dedicated to whether the

trial court erred by not placing Y.V. with Mother‘s proposed placement. It should

be noted that it appears that Mother does not seek custody of Y.V. It seems that

she is simply arguing that suitable family members are available to care for Y.V.;

that she believes the trial court should have placed Y.V. with the aunts; and that,

thus, it was not in Y.V.‘s best interest that her own parental rights to Y.V. be

terminated. Mother provides no authority to suggest that this issue is relevant to

the question of whether it was in Y.V.‘s best interest that Mother‘s parental rights

be terminated.2 See Rogers v. Dep’t of Family & Protective Servs., 175 S.W.3d

370, 379 (Tex. App.—Houston [1st Dist.] 2005, pet. dism‘d w.o.j.) (reasoning that

there exists no statutory or common-law duty for placement with a relative before

a trial court can determine that termination of parental rights is in the best interest

of the child). The determination of where a child will be placed is a factor in

determining the child‘s best interest, but the fact that placement will be with non-

relatives is not a bar to termination. Id.; see also In re A.L., 389 S.W.3d 896, 902

(Tex. App.—Houston [14th Dist.] 2012), (―[Appellant] provides no authority to

suggest that [appellant‘s proposed placement with relatives] is relevant to the

question of whether her parental rights should have been terminated.‖).

2 At a permanency hearing, the trial court must evaluate the efforts of the Department to identify relatives who could provide the child with a safe environment if the child is not returned to a parent. See Tex. Fam. Code Ann. § 263.404(a)(2) (West 2008). But this rule applies only when the trial court issues a final order appointing the Department as managing conservator without terminating parental rights. Id.

11 Y.V.‘s current placement supports the trial court‘s judgment. In contrast to

the environment that Y.V. lived in where she was injured to the point of needing

treatment for seizures and developmental delay, and where Mother denies both

the cause and symptoms that Y.V. suffers, the record indicates that at the time of

trial, the Department had placed Y.V. in an adoption-motivated foster home, and

that she had lived there for more than a year. The record indicates that Y.V. had

adjusted to the foster home and was doing very well. The foster mother is a

nurse, and the foster parents have the ability to provide for Y.V.‘s special needs.

And the record indicates that the foster parents take advantage of programs

available to them to assist in raising Y.V. given her special needs—the foster

parents have attended seizure training at Cook Children‘s Medical Center.

We conclude and hold that the evidence in this case is such that the trial

court could have reasonably formed a firm belief or conviction that termination of

the parent-child relationship between Mother and Y.V. is in the best interest of

Y.V., and that the evidence is legally sufficient to support that finding. In re

J.P.B., 180 S.W.3d at 573. Furthermore, we conclude and hold that the disputed

evidence that the trial court could not have credited in favor of terminating the

parent-child relationship between Mother and Y.V. is not so significant that the

trial court could not reasonably have formed a firm belief or conviction in the truth

of this finding; thus, the evidence is factually sufficient to support the trial court‘s

best-interest finding. In re C.H., 89 S.W.3d at 28. We overrule Mother‘s sole

issue on appeal.

12 IV. CONCLUSION

Having overruled Father‘s sole issue on appeal and having overruled

Mother‘s sole issue on appeal, we affirm the trial court‘s order.

BILL MEIER JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: June 13, 2013