Rene Peralez v. Noe Peralez

• Court: Court of Appeals of Texas
• Decided: February 10, 2011
• Docket: 13-09-00259-CV
• Status: Published

Opinion

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

NUMBER 13-09-00435-CV

IN THE INTEREST OF J.K.R. A/K/A J.K.C., CHILD

On appeal from the 135th District Court of Victoria County, Texas.

NUMBER 13-09-00436-CV

IN THE INTEREST OF M.R.C., R.L.B. JR., AND A.B., CHILDREN

On appeal from the 267th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Garza, Benavides, and Vela Memorandum Opinion by Justice Benavides Appellant, Amy Clark, appeals the district court’s order for the involuntary termination of her parental rights to her four children1 under Texas Family Code section

161.001. See TEX . FAM . CODE ANN . § 161.001 (Vernon 2008). By four issues, Amy argues

that the evidence presented during the termination hearing was legally and factually

insufficient to support a finding that: (1) termination of the parent-child relationship was in

the children’s best interest; (2) she knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endangered their physical or emotional well-

being; (3) she engaged in conduct or knowingly placed the children with persons who

engaged in conduct that endangered their physical or emotional well-being; and (4) she

failed to comply with the provisions of a court order that specifically established the actions

necessary for her to retake her children from the conservatorship of the Department of

Family and Protective Services (the “Department”). We affirm.

I. BACKGROUND

Amy is the mother of four children in the Department’s custody: M.R.C., born July

2, 2002; R.L.B. Jr., born August 24, 2004; A.B., born March 3, 2006; and J.K.R., born May

9, 2007. Robert Baladez is the father of all four children and lived with Amy and the

children intermittently.2 Robert had a history of family violence and arrests predating the

issues in this case. In October of 2006, the three eldest children were removed by the

Department following a determination that Amy and the children had been physically

abused by Robert. In March of 2007, Amy began living at Perpetual Help Home, a home

1 In this opinion, we consolidate cause num ber 13-09-00436-CV, concerning Am y’s parental rights to the three older children— M.R.C., R.L.B. Jr., and A.B.— and cause num ber 13-09-00435-CV, concerning Am y’s parental rights to her youngest child, J.K.R., also known as J.K.C. (hereinafter, “J.K.R.”). The two cases were tried together in the district court, and Am y now argues the sam e issues on appeal for each cause, with the exception of her fourth issue, which applies only to the three older children in cause No. 13-09- 00436.

2 Robert’s parental rights to the three older children were involuntarily term inated on Septem ber 11, 2007, and his parental rights to J.K.R. were involuntarily term inated sim ultaneously with Am y’s rights at the final hearing. Robert, however, is not a party to this appeal.

2 that provides a place to live for women and assists them in learning to take care of their

children. J.K.R. was born while Amy was living at Perpetual Help, and one month later, in

June of 2007, the three older children were returned to her care. Amy lived at Perpetual

Help until September of 2007.

Stephanie Cavazos, a licensed clinical social worker, worked directly with Amy at

Perpetual Help and testified that it was obvious to her that Amy loved her children, but was

not ready to leave Perpetual Help in September of 2007; however “there was no changing

[Amy’s] mind” about leaving. Amy found an apartment with the help of the Department.

Just after Amy left Perpetual Help, a hearing to involuntarily terminate Robert’s

parental rights to the three older children was held. At Robert’s hearing, Amy testified that

Robert assaulted her on several occasions, had done so in front of the children, and was

also physically violent towards the children. Further, Amy testified that Robert had used

drugs in the home, sometimes in front of the children, and the house regularly was without

electricity and running water. Additionally, Amy testified that termination of Robert’s rights

was in the best interest of the children, and the court thereafter terminated Robert’s

parental rights as to the three older children, M.R.C., R.L.B., and A.B.

On three occasions following this hearing, however, Amy took the children to visit

Robert in prison, where he is currently serving a ten-year sentence for aggravated assault

against a public servant.

In December of 2007, purportedly “to get some extra money” from her friend

Wayne, a man that she was “kind of” dating, Amy went on a trip with Wayne in his “18-

wheeler,” leaving her four children with neighbors. At the time of the trip, J.K.R. was six

months old. Amy left food and diapers with the neighbors and left a key to her house in

case they ran out. Amy testified that she expected to be gone for a “few days.” According

3 to Amy’s testimony, because the truck broke down and she missed a bus in Dallas, she did

not make it home when expected. According to the Department, she was gone for

approximately eleven days. Amy contacted her CPS caseworker during this time, and

informed the caseworker that she was going to help a friend move to Houston and would

be gone for one day—not mentioning Wayne, the truck, or their stops in Florida and

Georgia. When Amy returned from this trip, the Department removed all four children from

her custody.

Between December of 2007 and the date that the final order was signed in this case

on May 29, 2009, Amy was arrested on two separate occasions. First, Amy was arrested

for harboring a fugitive in July of 2008 when she allowed Robert’s brother to stay in her

home. However, the record indicates that formal charges were never filed on this offense.

Second, in March of 2009, just two months before her termination hearing, Amy was

arrested and indicted for possession of cocaine. The record does not indicate the final

disposition of this charge. Amy denied taking drugs with Robert during the time that she

and the children were living with him, but following this arrest, Amy sent a letter to the

Department and to the attorney ad litem for the children attempting to explain the charges

and admitting to her cocaine use. In the letter, Amy wrote,

On 3-20-09 around 2:30 p.m. a friend picked me up because I was feeling lonely and depressed. I decided to drink some beer. I have been feeling depressed for over a year . . . . My friend and I ended up in a local bar. I drank several beers to try to feel better. An acquaintance noticed that I was very depressed and offered me some cocaine. I didn’t want to make a scene so I accepted it and put it in my pant pocket.

According to Karen Smithey, Amy’s CPS caseworker, when asking about the letter,

Amy said that she would test positive because she had taken some of the drugs.

4 On May 26, 2009, in a bench trial, the trial court heard the testimony of Amy and

several other witnesses in a termination hearing initiated by the Department. Catherine

Parsons-Key, who counseled Amy and the three older children, testified that both of the

older boys remember violence in the home from the time Amy and Robert were together.

She also testified that, although Amy was consistent with her attendance of counseling, in

her opinion, Amy lacked an “understanding of the process of action consequences.”

Parsons-Key testified that she did not believe it would be in the best interest of the children

to return them to their mother.

Dr. Michelle Moran, a licensed psychologist who had performed a psychological

evaluation of Amy in 2007, testified at the hearing that Amy had a personality disorder with

“dependent and avoidant personality traits” including issues with self-esteem,

assertiveness, judgment, and goal-directed behavior. Dr. Moran concluded that if Amy

had continued contact with Robert and had used drugs, termination of her parental rights

would be in the best interest of the children.

Additionally, Karen Smithey, the CPS caseworker, and Stacie Marthiljohni, the court-

appointed special advocate (“CASA”), each recommended that Amy’s parental rights be

terminated based on what they perceived to be a continued danger of abuse.

In its order dated May 28, 2009, the trial court terminated Amy’s parental rights.

This appeal ensued.

II. STANDARD OF REVIEW

“Due process requires the application of the clear and convincing evidence standard

of proof in parental termination cases.” In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

"Clear and convincing evidence means 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

5 sought to be established." Id. at 264 (internal quotations omitted). This standard of proof

raises the burden of proof on the appellee upon appeal. “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.” Id. at 266 (citing In re C.H., 89

S.W.3d 17, 25 (Tex. 2002)). “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.” Id. “Rendition of judgment in favor of the parent would generally

be required if there is legally insufficient evidence.” Id.

The Texas Supreme Court has instructed that, “[t]he 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 there is a distinction in how the evidence is reviewed.” Id. “In

evaluating evidence for legal sufficiency under a clear and convincing standard, we review

all the evidence in the light most favorable to the finding to determine whether a

reasonable factfinder could have formed a firm belief or conviction that the finding was

true.” State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010). “We resolve disputed fact

questions in favor of the finding if a reasonable factfinder could have done so, and we

disregard all contrary evidence unless a reasonable factfinder could not have done so.”

City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266.

III. ANALYSIS

The trial court terminated Amy’s parental rights to the children pursuant to section

161.001 of the Texas Family Code, which provides that the parent-child relationship may

be terminated based on any one of nineteen acts or omissions of a parent, along with a

finding that the termination is in the best interest of the child. See TEX . FAM . CODE ANN .

6 § 161.001; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“[T]he purpose of the State's

intervention in the parent-child relationship is to protect the best interests of the children,

not to punish parents for their conduct.”). Therefore, if there was legally and factually

sufficient evidence to support the trial court’s finding that termination was in the best

interest of the children, then any one, individual ground for termination under section

161.001 is sufficient to affirm the judgment.

By her first issue, Amy argues that the evidence presented during the termination

hearing was legally and factually insufficient to support a finding that termination of the

parent-child relationship was in the children’s best interest. Specifically, Amy contends that

“the testimony of the counselor, CASA representative, CPS caseworker and psychologist

as to the best interest of the children did not establish by clear and convincing evidence

that termination would be in the children’s best interest.” We disagree.

In accordance with In re J.F.C., 96 S.W.3d at 266, we give due regard to the

following evidence that we believe the trial court could have found to be clear and

convincing: (1) Amy failed to provide a stable home for the children, often moving in and

out of state housing and shelters, and failed to consistently provide electricity and running

water in the home; (2) Amy displayed a desire to continue her relationship with Robert by

visiting him in prison after his parental rights were terminated, despite her knowledge that

Robert was abusive and a danger to the children; (3) Amy had, on occasion, left her

children with neighbors for extended periods of time and had lied to caseworkers

concerning her whereabouts; (4) Amy admitted to using cocaine and alcohol just weeks

before the hearing; (5) Amy lacked the “understanding” necessary to raise children; (6)

Amy had a personality disorder with “dependent and avoidant personality traits” including

issues with self-esteem, assertiveness, judgment, and goal-directed behavior; and (7) in

7 the professional opinions of four different Department witnesses, it would be in the best

interest of the children to terminate Amy’s parental rights.

In our legal sufficiency review, we “resolve disputed fact questions in favor of the

finding if a reasonable factfinder could have done so, and we disregard all contrary

evidence unless a reasonable factfinder could not have done so.” City of Keller, 168

S.W.3d at 817; In re J.F.C., 96 S.W.3d at 266. Applying this standard, we hold that the

foregoing evidence was legally sufficient to allow a reasonable factfinder to form a firm

belief or conviction that it was in the best interest of the children to terminate Amy’s

parental rights. See K.E.W., 315 S.W.3d at 20.

In our factual sufficiency review, we must ask whether “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.” See In re J.F.C.,

96 S.W.3d at 266. Here, we weigh Amy’s evidence that she regularly attended counseling,

that she was living in a stable home, had a job cleaning houses, and that all relations with

Robert were severed because he was serving an extended prison sentence. We cannot,

however, say that this evidence is so significant as to prevent the factfinder from forming

a firm belief or conviction that termination of Amy’s parental rights was in the children’s

best interest. See id. Therefore, we hold that the evidence was factually sufficient to

support the trial court’s finding. Accordingly, we overrule Amy’s first issue.

Having held that there was legally and factually sufficient evidence to support the

finding that it was in the children’s best interest to terminate Amy’s parental rights, if any

one of the three grounds upon which the trial court based its judgment is supported by

legally and factually sufficient evidence, we must affirm the judgment.

8 By her second issue, Amy challenges the first ground on which the judgment is

based as not being supported by legally and factually sufficient evidence. Specifically, she

argues that the trial court’s finding that she “knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endanger[ed their] physical or

emotional well-being” was not supported by legally and factually sufficient evidence. See

TEX . FAM . CODE ANN . § 161.001(1)(D) (Vernon 2008).

Applying our standard for legal sufficiency, we look specifically to the evidence

presented at trial that Amy: (1) had previously not kept a stable living environment; (2) kept

the children in a violent home which had affected the two older boys significantly; (3) took

the children, including J.K.R., to visit Robert in prison, despite knowledge of Robert’s

violent and abusive tendencies; (4) had not held a stable job; (5) allowed the three older

children to be present while Robert drank and used drugs; and (6) admitted to using

cocaine. We hold that the foregoing evidence was legally sufficient to allow a reasonable

factfinder to form a firm belief or conviction that Amy had knowingly placed or allowed the

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

emotional well-being. See K.E.W., 315 S.W.3d at 20.

Similarly, applying our standard for factual sufficiency, we note that Amy testified

during the trial that many of these events would not recur, specifically, because she had

obtained employment, had an appropriate living space, and would no longer have contact

with Robert. Again, however, we do not believe this evidence is so significant as to prevent

the factfinder from forming a firm belief or conviction that Amy had previously committed

the statutorily proscribed act of knowingly placing or allowing the children to remain in

conditions or surroundings which endangered their physical or emotional well-being. See

9 In re J.F.C., 96 S.W.3d at 266. Additionally, we note that the statute does not require a

likelihood of repetition in order to allow the court to terminate the parent-child relationship.

See TEX . FAM . CODE ANN . § 161.001(1)(D) (“The court may order termination of the parent-

child relationship if the court finds by clear and convincing evidence that the parent has . . .

knowingly placed or knowingly allowed the child to remain in conditions or surroundings

which endanger the physical or emotional well-being of the child . . . .” (emphasis added)).

For the foregoing reasons, we hold that the evidence was factually sufficient to support the

trial court’s finding. Accordingly, we overrule Amy’s second issue.

Having found one ground upon which the judgment was supported by legally and

factually sufficient evidence, we need not address whether the court’s other two grounds

for decision under subsections (E) and (O) of section 161.001 of the family code were

supported by legally and factually sufficient evidence, and therefore, need not address

Amy’s third and fourth issues. See TEX . FAM . CODE ANN . §§ 161.001(1)(E), (O) (Vernon

2008); see also TEX . R. APP. P. 47.1.

IV. CONCLUSION

Finding no meritorious issue on appeal, we affirm the trial court’s orders.

________________________ GINA M. BENAVIDES, Justice

Delivered and filed this the 10th day of February, 2011.