Opinion
No. 06-15-00066-CV
01-21-2016
IN THE INTEREST OF K.K., A CHILD
On Appeal from the 6th District Court Lamar County, Texas
Trial Court No. 83154 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Jennifer, the mother of K.K., a minor child, appeals from the trial court's order terminating her parental rights to K.K. On appeal, Jennifer contends that the evidence was legally and factually insufficient to support the trial court's finding that termination was in K.K.'s best interest.
We refer to the children by their initials and to the parents and relatives by pseudonyms in order to assist in protection of the identity of the minor. See TEX. R. APP. P. 9.8; TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
The trial court's order also terminated the parental rights of K.K.'s unknown father. He is not a party to this appeal.
I. Factual and Procedural Background
Jennifer was age twenty-nine and K.K. was ten years old at the time of trial. Jennifer did not know the identity of K.K.'s father beyond his first name. Jennifer's son, D.K., was five years old at the time of trial, and D.K.'s father was appointed sole managing conservator of D.K. while Jennifer was appointed possessory conservator.
Jennifer's parental rights to D.K. are not at issue in this appeal.
Cindy Whatley, an investigations supervisor with the Department of Family and Protective Services (the Department), testified that K.K. and D.K. were the subject of an investigation in 2011 based on allegations that K.K. was sexually abused by a third party. Jennifer admitted that she "walked in" while K.K. was being abused. Jennifer subsequently pled guilty to "intentionally or knowingly, by omission, caus[ing] bodily injury to [K.K.,] a child younger than 15 years of age, by failing to protect [K.K.] from sexual assault," and she was ultimately placed on five years' community supervision. Though the children were removed from her care, they were returned after Jennifer did "pretty well" in her court-ordered parenting class, counseling, and family services. Whatley testified that the original conservatorship case closed in February 2013.
Jennifer and Deanna Nickerson, supervisor of the Department's Conservatorship Unit, testified that about five weeks after the previous case was closed, the Department received a new intake regarding the children. Annette Allen was the investigator assigned to the new case. Allen's report states that when she went to Jennifer's apartment, she found Jennifer outside in the courtyard, dressed to leave, with a wallet in her hand and shoes on her feet. At the time, Jennifer had left her then two-year old son, D.K., alone in the apartment. In response to the allegation that she locked the children in their rooms, Jennifer told Allen that Nickerson and Donna Steffey, a family-based safety services worker for the Department, had told her that she could lock K.K. in her bedroom to keep her from getting up in the middle of the night and eating food, something both Nickerson and Steffey denied. Having examined both of the apartments where Jennifer lived with the children, Steffey testified,
I saw damage to the doorknob -- around the doorknob area. I saw damage to the interior wall of the child's bedroom, to that door. I saw a lock on the outside of the child's bedroom door.
And then in the second apartment during my time with the family during Family-Based Safety Services I observed a second door with similar kind of damage to the door where it had been, like, ripped up from the inside of the door inside the child's room. I saw a shoelace attached to the child's bedroom door that was tied onto that door that would reach the hall closet door to be tied up.
Steffey testified that at the time, Jennifer did not act as though she was unaware of the lock on the door. Also during the investigation, Jennifer told Allen that she never used an illegal drug, but eventually admitted to recreational use of marihuana, and Whatley testified that Jennifer admitted to smoking marihuana in the children's presence. The Department concluded that Jennifer had locked the children in their bedrooms, placing them in an imminently unsafe environment.
Although the testimony is not clear, it appears that Steffey visited Jennifer at a previous apartment and observed a lock on the child's bedroom door. Steffey told Jennifer to remove the lock, and she did. When Steffey visited Jennifer at her second apartment, she saw shoelaces that Jennifer used to secure the bedroom door in place of a lock. Steffey told Jennifer to remove these devices as well, and she did.
At trial, Jennifer claimed that Kenneth House, her paramour at the time, installed the locks. Jennifer testified that she did not notice the locks on the children's doors until after Steffey had told her they needed to be removed, and she personally removed the locks. Jennifer denied that the children had ever been locked in their bedrooms for longer than "like ten minutes."
See supra note 4. It is not clear whether Jennifer was referring to the first lock, the second shoelace device, or both.
Steffey testified that in August 2013, she saw bruises on K.K. "about an inch, an inch and a half long from her lower back to above her knees on both legs, on her -- down her thighs and hips." Jennifer said that House was watching the children while she was at parenting classes a couple of weeks prior and that he caused the marks on K.K. Jennifer claimed that she was unaware that House had spanked K.K. hard enough to bruise, and she claimed both children denied that House physically abused them.
In February 2014, the Department removed the children from Jennifer's care. The removal was based on "locking the kids in the bedroom, marijuana use in front of the children, [and] neglectful supervision on the part of [Jennifer] for" leaving the children in House's care knowing that he had previously left bruises on them. Whatley also testified that the removal was sought in part because of Jennifer's lack of progress in her court-ordered, family-based services. Nickerson testified that Jennifer declined to take a drug test in March 2014 and that Jennifer was informed that the Department would presume a positive result on the test. Jennifer claimed that she did not complete her court-ordered services because she was arrested on March 20, 2014.
In May 2014, Jennifer pled guilty to three counts of endangering a child for locking the children in their bedroom for extended periods of time. She was sentenced to nine months' incarceration on each of the counts, with the sentences running concurrently. On the same day, Jennifer pled true to a motion to revoke her community supervision in the 2011 injury to a child case and agreed to a three-year prison sentence in that matter. Jennifer testified that at the time of trial, she had been incarcerated for sixteen and one-half months, that her projected release date was in May 2017, and that she could be eligible for parole as early as November 2015.
The Department sought to terminate Jennifer's parental rights to K.K. In July 2015, after a bench trial, the trial court found by clear and convincing evidence that termination was in the child's best interest and that Jennifer had engaged in acts or conduct that satisfied one or more of the statutory grounds for termination. The Department was appointed K.K.'s permanent managing conservator. Jennifer filed this appeal.
II. Issue and Standard of Review
In her sole point of error, Jennifer argues that the evidence was legally and factually insufficient to support the trial court's finding that termination was in K.K.'s best interest.
"'The natural right existing between parents and their children is of constitutional dimensions.'" In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). "Indeed, parents have a fundamental right to make decisions concerning 'the care, custody, and control of their children.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "'Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial.'" Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 919-20 (quoting A.B., 437 S.W.3d at 500). "'"[I]nvoluntary termination statutes are strictly construed in favor of the parent."'" Id. at 920 (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20)).
In reviewing the trial court's ruling, we must determine whether the Department proved, "by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." Id. (citing In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)); see TEX. FAM. CODE ANN. § 161.001 (West Supp. 2015). "'Clear and convincing evidence' is that '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.'" Id. (quoting TEX. FAM. CODE ANN. § 101.007 (West 2014)); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). "This standard of proof necessarily affects our review of the evidence." L.E.S., 471 S.W.3d at 920.
Here, Jennifer only challenges the trial court's finding that termination was in K.K.'s best interest. --------
"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." Id. (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing J.P.B., 180 S.W.3d at 573).
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine '"whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations."'" Id. (quoting H.R.M., 209 S.W.3d at 108; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). "'If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.'" L.E.S., 471 S.W.3d at 920 (quoting J.F.C., 96 S.W.3d at 266). "'[I]n making this determination,' we must undertake '"an exacting review of the entire record with a healthy regard for the constitutional interests at stake."'" Id. (alteration in original) (quoting A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26)).
"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "'"the rights of natural parents are not absolute; protection of the child is paramount."'" Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). "'A child's emotional and physical interests must not be sacrificed merely to preserve parental rights.'" Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26)).
III. Analysis
A. Best Interest of the Child
"There is a strong presumption that keeping a child with a parent is in the child's best interest." In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)). That presumption can only be overcome by clear and convincing evidence to the contrary, because "[t]ermination 'can never be justified without the most solid and substantial reasons.'" In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)); J.L.B., 349 S.W.3d at 848.
In determining the best interest of the child, courts consider the following Holley factors:
(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). It is not necessary to prove all of these factors as a condition precedent to parental-rights termination. C.H., 89 S.W.3d at 27; In re N.L.D., 412 S.W.3d 810, 819 (Tex. App.—Texarkana 2013, no pet.). Evidence relating to a single factor may suffice in a particular situation to support a finding that termination is in the best interest of the child. See K.S., 420 S.W.3d at 855 (citing In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.), overruled on other grounds by J.F.C., 96 S.W.3d at 267 n.39). In other cases, however, when the evidence relevant to the Holley considerations is scant, it will not support termination of parental rights. C.H., 89 S.W.3d at 27.
"When considering a child's best interest, we may take into account that a parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment." In re A.T., No. 06-14-00091-CV, 2015 WL 733275, at *5 (Tex. App.—Texarkana Feb. 18, 2015, no pet.) (mem. op.) (citing C.A.M., 122 S.W.3d at 893). "A parent's drug abuse, which reflects poor judgment, is also a factor that may be considered when determining the child's best interest." Id. (citing In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.)). "Further, the amount of contact between the parent and child, the parent's failure to provide financial and emotional support, continuing criminal history, and past performance as a parent are all relevant in determining the child's best interest." Id. In addition, "[a] parent's drug use, inability to provide a stable home, and failure to comply with a family service plan support a finding that termination is in the best interest of the child." In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (citing In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.)). We will only address those factors set forth in Holley for which there is relevant evidence. See Holley, 544 S.W.2d at 371-72.
B. The Holley Factors
1. The Desires of the Child
Here, it is clear that Jennifer loved K.K. and that K.K. loved Jennifer. However, there was testimony that K.K. "goes back and forth between wanting to be with her mom and being afraid of her." Jennifer has sent K.K. appropriate letters from prison, and K.K. has expressed love for Jennifer through letters as well. However, Kristyn Anderson, K.K.'s Department caseworker, testified that in her most recent conversation with K.K., she "didn't actually mention anything about her mother. She just mentioned wanting to be with a loving family." We find this factor is neutral.
2. The Emotional and Physical Needs of the Child
K.K. has serious emotional and physical needs. Jennifer testified that K.K. was a disciplinary problem and had tantrums while living with her. Anderson agreed that there were "two inches worth of documents that outline[d] various behavioral issues and problems that [K.K.] . . . had while she's been in foster care," including acting out frequently, being physically aggressive, biting and hurting other children, not wanting to follow directions, as well as not participating in self-cleaning and self-care activities. Anderson testified that K.K. is developmentally delayed and has been diagnosed with developmental coordination disorder, adjustment disorder with mixed disturbance of emotions and conduct, and a mild intellectual disability.
She also noted that K.K. has issues associated with being the victim of child neglect, child physical abuse, and child sexual abuse. K.K. was on several prescription medications for mood stabilization and attention deficit hyperactivity disorder. Because of K.K.'s emotional and care needs, she has been moved from several foster homes and facilities, including a mental health facility. At the time of trial, K.K. still received a specialized level of care, involving 24-hour assistance at a residential treatment center in Woodville, Texas.
Anderson testified that in the months prior to trial, K.K. had shown improvement and was having fewer incidents and that she was in the process of having her level of care re-evaluated, which could mean that her required level of care could be lowered to moderate, allowing K.K. to be moved to a foster home. This testimony establishes that K.K.'s emotional and physical needs weigh heavily in favor of termination.
3. The Emotional and Physical Dangers to the Child
The record also shows that Jennifer's past decisions exposed K.K. to emotional and physical dangers. Jennifer saw a family member sexually abuse K.K., failed to quickly report it, and later pled guilty to injury to a child for failing to protect K.K. from the sexual assault. Jennifer admitted to smoking marihuana in the children's presence. She refused to take a drug test weeks after the children had been removed from her care, and from that refusal, the fact-finder was permitted to reasonably infer that she was taking drugs. See In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.).
Also, Allen saw Jennifer leave D.K., a child younger than three years of age, alone in her apartment. There was evidence that Jennifer locked the children in their bedroom even after being warned not to do so by the Department. She failed to discover that K.K. was bruised from being disciplined by House, though she has since terminated her relationship with House. Jennifer's history of using drugs in the children's presence and locking them in their bedrooms created an emotional and physical danger to the children. A parent's future conduct may be measured by her past conduct in determining whether it is in the child's best interest to terminate parental rights. In re. D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). Therefore, this factor weighs in favor of termination.
4. The Parental Abilities of the Individuals Seeking Custody and the Programs Available to Assist Those Individuals
"[A] parent's inability to provide adequate care for the child, lack of parenting skills," and poor judgment may be considered when looking at the child's best interests. C.A.J., 122 S.W.3d at 893. Jennifer admits that she initially had few parenting skills. Jennifer completed her service plan in the Department's original case in 2011 and had her children returned to her. However, in the current case, the Department sought removal, in part, because Jennifer was not making enough progress on her services and, in part, because she locked the children in their rooms more than once. Jennifer was still incarcerated at the time of trial, though while in prison, she completed a parenting course and general education development (GED) classes and took part in a rehabilitation program. Unless she is paroled early, Jennifer may be incarcerated until 2017. Considering this in light of K.K.'s serious emotional and physical needs, we find this factor weighs in favor of termination.
5. The Plans for the Child, the Stability of the Home, and the Acts or Omissions of the Parents Indicating the Parent-Child Relationship is Not a Proper One
Jennifer would like to be able to take care of the children full-time if she can prove to the Court some day that she has turned her life around. In the meantime, she wants an opportunity to stay involved in their lives. Upon being released from prison, she intends to find a transitional living center in Tyler, Texas, in order to live closer to K.K.'s current treatment facility in Woodville. She receives a disability benefit of $721.00 per month, which she admitted was insufficient to support her children. She plans to "get [her] finances in order" so she can provide a residence. She was attending GED classes and was "willing to get a job" to better provide, but her income potential is small. She did not explain a plan for dealing with K.K.'s need for 24-hour, specialized care. Anderson testified that the Department planned to make K.K. available for adoption, as one of K.K.'s prior foster homes expressed interest in adopting her. This factor weighs in favor of termination.
6. Any Excuse For the Acts or Omissions of the Parent
Jennifer has a learning disability, has an I.Q. of 89, and never finished high school. She has received government disability benefits since she was seven years old. Though learning disabled, she has never been diagnosed with a substance abuse addiction or a serious psychiatric disorder. At the age of eighteen, she was pregnant with K.K. and has provided for K.K.'s needs to the best of her abilities from then until the Department removed her. While a very sad situation, we do not see this factor as weighing against termination. At best, it is neutral.
IV. Conclusion
Based upon an examination of the record and the foregoing analysis, we find that there is legally and factually sufficient evidence to support the trial court's finding that termination is in K.K.'s best interest. We overrule this point of error.
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: December 3, 2015
Date Decided: January 21, 2016