Opinion
NO. 09-12-00078-CV
09-06-2012
IN THE INTEREST OF T.C., P.C., and B.C.
On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B-100705-D
MEMORANDUM OPINION
The Texas Department of Family and Protective Services (the "Department") filed a petition to terminate S.C.'s parental rights to T.C., P.C., and B.C. The Department alleged that S.C. (1) "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children;" and (2) "engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children[.]" A jury found, by clear and convincing evidence, that S.C.'s parental rights should be terminated. In five appellate issues, S.C. challenges the legal and factual sufficiency of the evidence to support termination. We affirm the trial court's judgment.
Another child was involved in the termination proceeding, but S.C. is not this child's father and this child is not a subject of this appeal.
Background
S.C. and S.F. are the parents of T.C., P.C., and B.C. S.C. testified that he entered the United States illegally, but was employed until being deported in 2007. He testified that, to his knowledge, S.F. was not using drugs before his deportation. S.C. returned to the United States in 2008. H.L., S.F.'s cousin, testified that she informed S.C. that S.F used drugs, but that S.C. did not believe H.L. S.C. testified that he was unaware that S.F. had a drug problem.
In 2009, caseworker Trina Brown became involved when the Department learned of S.F.'s alleged drug use. According to Brown, S.C. knew S.F used drugs, but he remained in the relationship because he loved S.F. Brown testified that S.C. contacted her when S.F. was using drugs, but that he never said S.F. used drugs around the children. On one occasion, however, Brown learned that S.C. had asked the children's day care not to notify the Department that S.F. had taken one of the children and was using drugs. Brown stressed to S.C. the importance of protecting the children. She testified that S.C. was aware of the dangers of a parent's drug use. Brown believed S.C.'s feelings for S.F. interfered with his ability to perform services and perhaps his ability to put the children first. She explained that a father's decision to stay with a drug-using mother endangers the children if the mother uses drugs in the children's presence. Brown testified that the relationship continued, despite S.C.'s knowledge that S.F.'s drug use endangered the children and could cost him custody. Brown could not say that S.C. understood the need to protect the children from S.F.
In July 2010, investigator Sean Martin became involved when the Department received a referral for neglectful supervision and sexual abuse of P.C. S.F., S.C., and the children were living in a home with H.L. and H.L.'s children. Martin testified that the children had no marks or bruises on their bodies and seemed healthy, but lived in poor conditions. He told S.F. to clean the home and advised the parents not to allow the children around the man accused of abusing P.C.
H.L. testified that S.F. used drugs in the children's presence and sold food stamps to support her drug habit, all of which S.C. knew. She testified that S.F. sometimes left for days, leaving H.L. and S.C. to care for the children. H.L. testified that there were times when she had to provide food for the children. She opined that S.C. was more worried about S.F. than caring for the children and testified that S.C. did nothing to get the children away from S.F.
In August 2010, S.F had been gone several days, but returned under the influence and tried to take the children. S.C. testified that S.F. could hardly speak and he could hardly understand what she said. When S.F. tried to take one of the children, S.C. followed and S.F. began hitting S.C. H.L. heard S.C. tell S.F. that she was "messed up" and could not take the children. S.C. testified that when he contacted the police, S.F. handed the child to S.C. and walked away. When the police arrived, S.C. told the officer that S.F. was under the influence of drugs, had been gone several days, was trying to take the children, and he would not allow her to take the children in that condition. The officer told S.C. that he could not help because S.F. was the children's mother and S.C. was not on the children's birth certificates.
H.L. testified that she consulted S.C. and they decided to contact the Department. When Martin arrived at the home, some of the children were sleeping and appeared lethargic. Martin testified the home was hot and humid. According to H.L., the room had no air conditioning because S.F. had pawned the air conditioning unit. S.C., however, testified that an operational air conditioning unit was installed in the room on the day of removal. Martin further testified that the children were dirty and wearing dirty clothing, the floor was dirty, the kitchen was unsanitary, and the couches in the room were "deplorable." S.C. and H.L. testified that the children had been playing outside and had come inside to nap. S.C. testified that when Martin arrived, the children were sleeping and appeared normal. H.L. admitted that some of the children appeared to be in poor condition and affected by the heat, but she testified that they appeared normal in the hours before Martin's arrival. Martin testified that the children otherwise appeared healthy.
Martin testified that S.F. appeared to be under the influence, but S.F. denied having a drug problem and claimed to be a "wonderful mother." S.C. cried and told Martin that S.F. was using cocaine, he could not provide for the children because S.F. sold their food stamps for cocaine, they did not have a babysitter so that he could work, and he struggled to find a job because he is illegal. Martin removed the children from their parents' care. Because the children's belongings were dirty, Martin retrieved clothing and toiletries from the Department's office. Dwaine Taylor, the children's foster parent, described the children's condition as "atrocious." He explained that the children had head lice and no shoes, and their teeth were in "deplorable condition."
Foster care caseworker Anna Van Metre testified that S.C. tried his best to regain custody of his children. S.C. testified that he has never missed court and has missed few visits, even walking to court or visits when needed. He testified that the children are always happy to see him and that, at the most recent visit, P.C. held him tight and would not let go. S.C. testified that he has "strong bonds" with his children. H.L. testified that the children's faces light up when they see S.C. and they did not want S.C. to leave. Foster care worker Gail Schlabs noticed that the children were more drawn to S.C than S.F., and she testified that S.C. was the more caring parent, was "hands-on" with the children, played with them, talked to them, and held them. Taylor testified that the children did not appear upset after visits and did not appear to have a very close bond with their parents. Van Metre testified that the children did not seem overly happy to see their parents or overly sad when visits ended. Van Metre saw love, but not a parent and child bond. CASA volunteer Jan Shell could recall only one occasion when the children mentioned their parents to Shell.
Regarding his relationship with S.F., S.C. testified that S.F. hit him, called him names, and threatened him with deportation. He testified that S.F. had pawned four different air conditioning units and refused to allow him to borrow her vehicle, which cost him a job. He admitted telling Martin that S.F. sold food stamps for drugs, which prevented him from buying food for the children. S.C. also admitted telling Martin that he could not work because he had to babysit, as S.F. was always with her friends using drugs. S.C. testified that S.F. was never under the influence in the children's presence. He denied knowingly leaving the children with S.F. when she was under the influence and testified that S.F. neither used drugs when he left the children with her, nor used drugs at home. S.C. felt he protected his children and he did not believe the children were ever in danger around S.F. According to S.C., the first time he felt the children were in danger, he contacted police. S.C. testified that he stayed with S.F. because his name was not on the children's birth certificates, so he did not feel free to take the children, and he wanted to be there to protect the children. He testified that S.F. is now out of his life and his name is listed on the children's birth certificates.
Martin opined that S.C. was "very subservient" to S.F. and knew S.F. had a drug problem. He believed that S.C. loves his children and wants to protect them, but could not separate himself from S.F. or protect the children from S.F. Van Metre opined that S.F. has a hold over S.C. that interferes with his ability to protect his children. She explained that allowing S.F. to have contact with the children when she is under the influence is not protective of the children. She further testified that S.C. and S.F. engaged in altercations in the children's presence. She explained that S.C.'s failure to remove himself and the children from S.F. endangered the children. Van Metre admitted that S.C. had separated himself from S.F. in recent months.
Regarding his ability to maintain stable housing and income, S.C. admitted having trouble finding work and admitted that he does not have money for his children and himself. He denied not providing food to his children and testified to providing medical care when the children became ill. He testified that he met with an immigration attorney, but the attorney did not recommend that he pursue legal status at that time because he could be deported for up to ten years.
Schlabs testified that S.C. admitted being unable to provide for the children and being frustrated by his inability to have reliable income. Van Metre testified that S.C. has lived at several different locations since the children's removal, currently lived at the same residence from which the children were removed, and could not maintain stable income. She stated that S.C. had at one time planned to obtain a mobile home to place on a piece of property, but later stated he could not afford food and utilities without consistent employment. According to Van Metre, without a stable home and income, the children do not have a safe environment to which they can return. Van Metre stated that S.C.'s failure to change his illegal status likewise endangers the children because of the risk he could be deported.
Van Metre stated that the children's situation at the time of removal, including lapsed immunizations and poor dental health, endangered their health and well-being. She testified that S.C. could have taken the children to a cleaner place that had air conditioning. She and Martin testified that S.C. cannot provide for the children's needs. Caseworker assistant Lynda West testified that the condition of S.C.'s home had improved since the removal date, but the residence did not appear to be appropriate for children.
B.B., S.F.'s mother, testified that S.C. is a good father who has worked and cared for the children. Although she admitted that S.C. does not have a stable home or employment, B.B. wanted S.C. to be given a chance. H.L. also believed S.C. to be a good father. She testified that S.C. hid the food stamp card from S.F. and was a good caretaker. H.L. felt that the children love S.C. and S.C. tried to protect them. B.B. explained that the children love S.C. and have a strong bond with him, and that it is in the children's best interest that S.C.'s parental rights not be terminated. H.L. believed it was in the children's best interest to continue having a relationship with S.C. S.C. believed it is in the children's best interests to remain in the Department's care, but that his parental rights should not be terminated.
H.L. testified that if the Department tried to place the children with family, the assigned tasks were not completed, and no relatives could take the children, it would be in the children's best interest that parental rights be terminated. Van Metre believed that termination was in the children's best interest:
I do not believe that if these children were returned to any of the parents, they would be adequately provided for with their basic needs being met. I do not believe that the children would be protected from [S.F.], which is a -- she's a huge liability in this case. As -- during the course of the -- her involvement with the department, I believe it has been shown that she has a hold over the men that she's with and they can't always protect the children from her.She testified that it is in the children's best interest to find a permanent home and she believed they would be in jeopardy if returned to S.C. Shell and CASA worker Dorothy Stanley also recommended termination. Shell explained that in the "early formative years" of development, children deserve a chance for a "structured environment."
Legal and Factual Sufficiency
We first address the Department's contention that S.C. failed to preserve his sufficiency issues for appellate review. To challenge the factual sufficiency of the evidence supporting a jury finding, the appealing party must have first asserted the point in a motion for new trial. Tex. R. Civ. P. 324(b)(2); In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003). To preserve a legal sufficiency challenge for appeal, the appealing party must have asserted the point by (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard the jury's answer to a vital fact issue, or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).
The record in this case does not indicate that S.C. filed a proper motion or lodged a proper objection raising his sufficiency challenges. See Tex. R. Civ. P. 324(b)(2); see also M.S., 115 S.W.3d at 547; Cecil, 804 S.W.2d at 510-11. Appointed counsel's unexcused failure to preserve a valid sufficiency point for appellate review may constitute ineffective assistance of counsel. In the Interest of C.T., No. 09-11-00694-CV, 2012 Tex. App. LEXIS 2485, at *3 (Tex. App.—Beaumont Mar. 29, 2012, no pet.) (mem. op.) (addressing sufficiency issues in a termination case when issues were not preserved and no ineffective assistance claim was raised). S.C. does not argue ineffective assistance of counsel, and counsel is not automatically ineffective for failing to preserve the issues. See id. "If counsel could reasonably have believed that the evidence was sufficient, counsel's performance does not fall below an objective standard of reasonableness merely because no motion challenging the verdict was filed." Id.
Under legal sufficiency review, we review all the evidence in the light most favorable to the finding to determine whether a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If no reasonable factfinder could form a firm belief or conviction that the matter which must be proven is true, the evidence is legally insufficient. Id.
Under factual sufficiency review, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. Id. We give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. "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.
In this case, the Department alleged violations of Texas Family Code section 161.001(1)(D) and (E). See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2011). Section 161.001(1)(D) allows for termination if the trier of fact 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[.]" Id. § 161.001(1)(D). A parent's conduct in the home, such as illegal drug use, can create an environment that endangers the child's physical and emotional well-being. In the Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). One parent's drug-related endangerment of the child may be imputed to the other parent. Edwards v. Tex. Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997), overruled on other grounds, J.F.C., 96 S.W.3d 256. "The factfinder may infer from past conduct endangering the child's well-being that similar conduct will recur if the child is returned to the parent." In the Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).
The jury heard testimony that S.C. is a good father, and that the first time he felt his children were in danger, he attempted to protect the children from S.F. According to S.C., the children were never left with S.F. or placed in her presence when she was using drugs or under the influence of drugs. The jury also heard testimony that S.C. and S.F. were no longer in a relationship.
The jury heard evidence that S.F. used drugs, engaged in inappropriate behavior towards S.C., and used her food stamp card to purchase drugs. The jury also heard testimony that S.C. knew S.F. used drugs and was aware of the dangers associated with a parent's drug use. Nevertheless, S.C. remained in the relationship, despite the Department's warnings and the danger posed to his children by S.F.'s drug use. The record further demonstrates that S.C. had, on one occasion, attempted to conceal the fact that S.F. had taken one of the children and was using drugs while in possession of that child. H.L. testified that S.F. had used drugs in the children's presence and that S.C. was aware of this fact. Witnesses testified that S.F.'s hold over S.C. prevented him from putting his children first and protecting his children, thereby making placement of the children with S.C. inadvisable.
The jury could reasonably conclude that S.F.'s drug-related endangerment of the children was imputed to S.C. and could infer from this past endangering conduct that similar conduct would recur if the children were returned to S.C. See M.R.J.M., 280 S.W.3d at 502; see also J.T.G., 121 S.W.3d at 125; Edwards, 946 S.W.2d at 138. The jury could reasonably have formed a firm belief or conviction that S.C. knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger their physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D). Accordingly, we need not address the sufficiency of the evidence to support a violation of section 161.001(1)(E). See In the Interest of C.A.C., No. 09-10-00477-CV, 2011 Tex. App. LEXIS 3385, at *2 (Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.) (A judgment will be affirmed if any one of the grounds is legally and factually sufficient and the best interest finding is also legally and factually sufficient.).
Regarding the children's best interest, we consider a non-exhaustive list of factors: (1) desires of the children; (2) emotional and physical needs of the children now and in the future; (3) emotional and physical danger to the children now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the children; (6) plans for the children by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts/omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts/omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code. Ann. § 263.307(b) (West 2008).
The record does not indicate the children's desires. Van Metre testified that the children are friendly, sweet, active, and outgoing; are bonded; and are educationally on target. Shell testified that the children appear relaxed and happy, and their needs are being met. Taylor testified that the children are affectionate and bonded. Taylor, Van Metre, and Shell did not observe a close bond between S.C. and the children. Van Metre testified that the Department plans to find an adoptive home for all the children so they can remain together.
Before his deportation, S.C. maintained employment and housing and provided for his children. H.L. described S.C. as a good caretaker. B.B. testified S.C. tries to provide for the children, that the children are healthy, normal, and appropriately behaved, and that she is not concerned for their safety or well-being. After the children's removal, S.C. attended court proceedings and visits and eventually separated from S.F. Witnesses testified to the loving relationship between S.C. and his children, and S.C. testified to the bond he has with his children.
The record also indicates that S.C. has lived in several different locations, has not achieved legal status, and has not obtained stable employment or income. The record contains evidence that S.C. had problems providing the children with food, that the children's immunizations had lapsed, that the children were in poor physical condition, and that the children lived in a home with no air conditioning and filthy surroundings. The jury heard testimony that S.C.'s failure to remove himself and the children from S.F. endangered the children. West testified that S.C.'s home is not appropriate for children. S.C. expressed a need for more time to regain custody. He explained that he needs to clean the house and purchase a vehicle, but he does not have a driver's license. Witnesses testified that S.C. cannot meet his children's basic needs. Shell explained that the children need a "structured environment." Van Metre testified that the children do not have a safe environment to which they can return.
"[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." Tex. Fam. Code Ann. § 263.307(a) (West 2008). The jury could reasonably conclude that S.C. was unable to provide a safe environment for the children. The jury could reasonably have formed a firm belief or conviction that termination of S.C.'s parental rights was in the children's best interest. See Tex. Fam. Code Ann. §§ 161.001(2), 263.307(b); see also J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72. We conclude that the Department established, by clear and convincing evidence, that S.C. committed the predicate act enumerated in section 161.001(1)(D) and that termination is in the children's best interest. See Tex. Fam. Code Ann. § 161.001. We overrule S.C.'s five issues and affirm the trial court's judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Before McKeithen, C.J., Kreger and Horton, JJ.