Opinion
06-21-00028-CV
08-24-2021
IN THE INTEREST OF R.J., M.J., AND M.J., CHILDREN
Submitted Date: July 29, 2021
On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 20C0413-102
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Scott E. Stevens Justice
Mother appeals the trial court's order terminating her parental rights to her children, Rita, Micah, and Mia. In this appeal, Mother complains that there was factually insufficient evidence to support the trial court's finding that termination of her parental rights was in the best interests of the children. Because we find that sufficient evidence supports the trial court's finding, we affirm the trial court's order terminating Mother's parental rights.
To protect the identities of persons who were minors at the time of the incidents, we refer to them by fictitious names. TEX. R. APP. P. 9.8(b)(2). This suit was brought by the Texas Department of Family and Protective Services (the Department).
The trial court's order also terminated the parental rights of Micah's and Mia's father and appointed Rita's father as her possessory conservator. Neither of the children's fathers appealed the order.
I. Factually Sufficient Evidence Supports the Trial Court's Best-Interest Finding a. Standard of Review
"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.-Texarkana 2018, 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 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. (quoting In re A.B., 437 S.W.3d at 500). "[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. (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 order to terminate parental rights, the trial court must find, 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 TEX. FAM. CODE ANN. § 161.001; In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012)). '"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 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). "This standard of proof necessarily affects our review of the evidence." Id.
Here, the trial court found that Grounds D and E had been established by clear and convincing evidence. Mother does not challenge those findings on appeal.
"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)). "Termination '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)).
In determining the best interests 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.Id. at 818-19 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see In re E. N.C. , 384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). Further, we may consider evidence used to support the grounds for termination of parental rights in the best-interest analysis. In re C.H., 89 S.W.3d at 28.
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.-Texarkana 2015, no pet.) (citing In re H.R.M., 209 S.W.3d 105, 108 (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 (quoting 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 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. (quoting In re J.F.C., 96 S.W.3d at 266). In making this determination, we undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re 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)) (citing 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 In re C.H., 89 S.W.3d at 26)).
b. The Evidence at Trial
The evidence at trial showed that, in late 2018 or early 2019, Rita made an outcry of sexual assault against Cedric Cooley. Although Mother was the first person that Rita had told about the alleged abuse, Mother did not report it to any authority because she did not want to get Child Protective Services (CPS) involved. Although the Bowie County District Attorney's (DA) Office tried to convince Mother to take Rita to the Children's Advocacy Center (CAC), Mother resisted doing so. During the case against Cooley, Mother contacted the DA's office and told them that Rita wanted to recant her allegations. But when Rita was interviewed a second time, she told the DA that she never said that she did not want to go forward with the prosecution or that she had lied.
Another relative reported the alleged abuse to CPS.
About one year later, CPS got involved with Mother and the children when Rita and Mia made an outcry that David, the sixteen-year-old son of Mother's then boyfriend, had sexually abused them. During the investigation of the allegations, Mother stated that she had caught David and Rita in bed with no clothes on, but that David's father handled it without reporting it to the authorities. Mother also admitted that she had seen texts on Rita's cell phone from David in which he stated that he wanted her booty and to "smash." At the girls' CAC interviews, both girls made outcries of sexual abuse by David, and both said that they told Mother about the abuse. Mother, however, denied that she knew about the abuse.
At the time, Rita was eleven years old, and Mia was eight years old.
The evidence also showed that David had been adjudicated on three counts of aggravated sexual assault of a child because of his assaults on Rita and Mia and that he had received a twenty-five-year, determinate sentence. During the investigation, David stated that, every time he assaulted one of the girls, Mia would tell Mother and either Mother or his father would make him apologize to them. He also said that Mother caught the girl and him naked several times and that she had caught him in the act of sexually assaulting Mia in her anus. He stated that Mother would comb his discharge out of the girls' hair when he ejaculated.
At her interview on December 16, 2019, Rita told the interviewer that David had played with his private parts and that she woke up with white stuff in her hair from David. When she told Mother about it, Mother wiped the white stuff out of her hair and told her to go back to bed. The interview ended when Rita had a seizure. At her interview, Mia told the interviewer that David had been assaulting both Rita and her since they met, that he had put white stuff in their hair, that she saw David thrusting Rita, and that he made Rita sick. Mia said she told her Mother about the abuse and Mother said she would talk to his father. In a subsequent interview, Mia said that David had been assaulting her for a long time, that it hurt, and that she woke up with white stuff in her hair and on her pillow.
As a result of its investigation, CPS and Mother entered into a safety plan in January 2020 that provided that the children were not to visit David's house at all. At the time, Mother told CPS that she would break up with David's father and that the children would not be allowed in his house. Even so, on March 2, 2020, CPS received a message from Mother's new boyfriend that Mother was still allowing the children to go to David's house. This resulted in the removal of the children from Mother's care because she continued to place the children in dangerous situations and she lacked the ability to keep them safe.
Demetria Simington, the CPS conservatorship worker for the case, initially testified that, after the children were removed, Mother completed all her required services, except parenting classes, which she acknowledged were not completed because of Mother's work schedule. In July 2020, the children were returned to Mother on monitored return. Under the terms of the monitored return, Mother represented that a family friend would stay with the children while she was at work. Mother was also informed that she should give Simington the name of anyone that would be helping with the children, or with whom she entered into a relationship, so Simington could run a background check and include them in the family plan. Unbeknownst to Simington at the time, during the monitored return, Mother got a new boyfriend, Mr. Robinson. Mother also left the children alone and unsupervised while she was at work, and the children were taken to her new boyfriend's house after school.
In subsequent testimony, Simington testified that Mother had failed a drug test in August 2020 and that, at visitation with the children, Mother would discuss the case. Simington opined that discussing the case put pressure on the children because they felt like they had to choose.
Mother worked full time from 3:00 p.m. to at least 12:00 a.m.
Mother's monitored return ended in a second removal because of an allegation of physical abuse by Mother against Mia. During the monitored return, testimonial and videorecorded evidence showed that, while Mother was waiting with Mia for the school bus, Mia started backing away from Mother, who then struck Mia several times around the head and shoulders causing Mia's head to strike a metal array of mailboxes.
One week later, Rita was interviewed at the CAC. Rita told the interviewer that (1) she received "whoopings" that left marks, (2) Mother whooped her while she slept and told her not to tell anyone, (3) she did not feel safe at home, (4) Robinson whooped her until he got tired, and (5) Mother laughed while Robinson beat them. Rita also told the interviewer that Mother left the children home alone at night and told her not to tell anyone. She said that Mother and Robinson smoked "weed." Rita also explained that she enjoyed being with her foster mother and hoped that she would get to stay with her foster mother.
Shortly after that interview, CPS moved the trial court to return the children to foster care, which the trial court granted. After the second removal, Rita made an outcry that she had been abused during the monitored return. Rita was interviewed at the CAC again on December 24, 2020. She reported that Robinson had come into her room and touched her while Mother and her siblings were home, that she told Mother about the abuse, and that Mother said that they would be leaving. Rita also said that Robinson was touching Mia and that, one time, he took Mia into a room and sexually assaulted her. Rita explained that she had followed them and saw the assault, which she detailed. She also said that, one time, Robinson was going to sexually assault her, that he got upset when he saw that she was on her period, and that he slapped her.
The alleged sexual abuse by Robinson occurred in Arkansas, and the abuse was investigated by the Arkansas State Police, who found that the allegations of sexual abuse of Mia by Robinson, of sexual abuse of Rita by Robinson, and of neglect and failure to protect by Mother were all true.
Joey Elliott, the advocate coordinator for Court Appointed Special Advocates (CASA) in Bowie County, visited with the children at least once a month throughout the case. He testified that Rita wanted to live with her father but wanted to still talk with Mother. Elliott approved her living with her father because her father had been calling her regularly to check on her since he found out about the case. He also testified that Micah was in a foster home in Dallas. Elliott testified that Micah had eczema and the first time he was with his foster family, they sought treatment and got it cleared up. While he was in foster care, he always dressed nice and had a fresh haircut. Elliott also testified that, when Micah was first returned to foster care after the monitored return, his eczema had gotten very bad, he needed a haircut, and he was thin, quiet, and withdrawn. Since his return to foster care, Micah had come out of his shell. Elliott testified that Mia was also in foster care in Dallas. He described her as a bubbly, feisty, and very engaging girl who liked to play and joke. Both Micah and Mia had told him that they wanted to be adopted by their foster families, who were both willing to adopt them.
Rita's father testified that he lives in Natchez, Mississippi, and had a good relationship with Rita until Mother moved with the children to Texas several years earlier. After they moved to Texas, Mother would not let him talk with Rita. After Simington contacted him about the case, he began talking with Rita on the telephone and visiting her virtually. He also testified that he had been with his wife for thirteen years, that he had two other children, and that they all considered Rita to be one of the family. He testified that Rita had a large extended family in Natchez.
Elliott recommended that the children not be returned to Mother because of her inability to protect them and her lack of ownership for what happened to them when they came back home. He opined that Mother's parental rights should be terminated.
Simington testified that the children should not be returned to Mother's care. But she was not sure that her parental rights should be terminated. Simington did not believe that is what the children wanted and thought it would be detrimental to them. She also testified that she had been unable to get a real answer from the children when she asked if they wanted to be with Mother. Simington also explained that Mia told her that she wanted to be adopted and that Micah had mentioned both his grandmother and adoption. Simington stated that she could not say whether it was in the best interests of the children to have Mother's parental rights terminated. That said, she later testified that she thought it was in their best interests if her rights were not terminated. As to Rita, Simington believed that supervised visitation with Mother would be appropriate, but as to Mia and Micah she was on the fence. She was certain that Mother was not ensuring that her children were protected.
Mother also testified and assured the trial court that she would do whatever she needed to do to protect the children. She stated that she loved her children and that her plan to protect the children was to do whatever they asked her to do. Mother also testified that Mia was nine years old when the video recording at the bus stop was taken and admitted that she was also on the recording.
At the end of the hearing, the trial court found that termination of Mother's parental rights as to the children was in the children's best interests and that termination was proper under Section 161.001(b)(1), Grounds D and E, of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) (Supp.).
c. Analysis of the Holley Factors
In support of her argument that factually insufficient evidence supports the trial court's best-interest finding, Mother points to Simington's testimony, which she contends was unqualifiedly that termination was not in the best interests of the children. Mother also relies on Elliott's testimony that the children love Mother and still want to talk with her. Mother does not discuss, or even mention in her brief, any of Mother's acts and omissions that led to the initial removal of the children or any of her acts and omissions during the monitored return that resulted in the subsequent removal of the children from her care. Rather, Mother argues that Simington's opinion, and the one statement about the children's desire to be able to talk with Mother, is dispositive of the Holley factors concerning the desires of the children and the emotional and physical needs of the children now and in the future. We disagree.
See TEX. R. APP. P. 38.1(g) (requiring the appellant's brief to state "the facts pertinent to the issues or points presented").
As the fact-finder, the trial court is the "sole judge[] of the credibility of the witnesses and the weight to give their testimony." City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); In re M.M.W., No. 06-18-00082-CV, 2019 WL 1757897, at *4 (Tex. App.-Texarkana Apr. 22, 2019, no pet.) (mem. op.). This includes the obligation to weigh the credibility and weight to be given to opinion testimony. See Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019); Carroll Indep. Sch. Dist. v. Nw. Indep. Sch. Dist., No. 02-18-00264-CV, 2021 WL 2761605, at *26 (Tex. App.-Fort Worth July 1, 2021, no pet. h.) (mem. op.). Further, the trial court may "accept or reject any part or all of a witness'[s] testimony" and "resolve[] any inconsistencies in a witness'[s] testimony." Dudley v. Johnson, No. 06-14-00013-CV, 2014 WL 3973943, at *4 (Tex. App.-Texarkana July 16, 2014, no pet.) (mem. op.). For those reasons, the trial court was obligated to weigh the credibility of Simington's opinion testimony in light of the other testimony in the case and could accept it or reject it accordingly. Similarly, the trial court could weigh Elliott's single statement regarding the desires of the children in light of the remainder of his testimony, as well as the testimony of other witnesses.
As for the desires of the children, Holley's first factor, the CAC interviewer testified that, after the second removal, Rita stated that she did not want to be returned to Mother and hoped to be able to remain with her foster mother. Elliott testified that Rita wanted to live with her father. Elliott also testified that both Mia and Micah wanted to be adopted by their foster families. Although there were inconsistencies in Simington's testimony, she also testified that Mia had expressed a desire to be adopted and that Micah had mentioned both adoption and his grandmother. There was no testimony that any of the children wanted to be returned to Mother. As a result, we find that the first Holley factor strongly favors termination of Mother's parental rights.
The evidence also showed that, before the first removal, Mother knew of the sexual assault on Rita and Mia by David, yet did nothing to protect them. The evidence also showed that, although Micah had a treatable skin condition, Mother failed to provide him with medical treatment that would resolve that condition. In addition, when the children were returned to Mother's care, she again failed to protect Rita and Mia from physical and sexual abuse, participated in physically abusing both girls, allowed Micah's skin condition to again go untreated, and exposed the children to danger by leaving them alone at night. Considering this evidence, the trial court could reasonably lend little credibility to Mother's testimony that, if the children were returned to her, she would do whatever was necessary to protect them. By contrast, the evidence also showed that, while the children were in the care of their foster families, their emotional and physical needs were adequately addressed. In addition, because of Mother's demonstrated inability to protect her children, every witness expressing an opinion uniformly recommended against returning the children to Mother's care. Finally, although there was some testimony that the children still desired to be able to talk with Mother, and Simington expressed her opinion that it may be detrimental to Rita to not have contact with Mother, there was no testimony that any of the children desired to have visitation with Mother. We find under this evidence that the second, third, fourth, and eighth Holley factors also strongly favor termination of Mother's parental rights.
The Department's plans for Rita were that she would reside with her father as possessory conservator and that the Department would remain managing conservator. Its plans for Micah and Mia were for adoption by their foster parents. Mother only testified that she would protect them. Thus, the sixth Holley factor also favors termination of Mother's parental rights.
Although Mother maintained stable employment and completed most of her required services, when the children were returned to her, she failed to protect them and exposed them to danger both by leaving them alone at night and by entering a relationship with a man that physically and sexually abused them. This evidence supports a finding that she was unable to provide the children with a stable home environment where they felt safe. Testimony showed that Rita's father has had a stable relationship with his wife for thirteen years, that they have two children, and that Rita has a large extended family in father's place of residence to assist in caring for Rita. Although the evidence regarding Mia's and Micah's foster families' home life was scant, the evidence indicated that both children's physical and emotional needs were being addressed. This Holley factor also favors termination of Mother's parental rights.
Finally, during Mother's testimony, she did not offer any excuse for her acts and omissions discussed above. Thus, the ninth Holley factor also favors termination of Mother's parental rights.
Based on this record, we find that factually sufficient evidence supports the trial court's best-interest finding. As a result, we overrule Mother's sole issue on appeal.
II. Conclusion
For the reasons stated, we affirm the trial court's judgment.