Opinion
No. 04-05-00756-CV
Delivered and Filed: April 5, 2006.
Appeal From the 112th Judicial District Court, Sutton County, Texas, Trial Court No. 5051, Honorable M. Brock Jones, Jr., Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Kimberly Ann Daniels appeals the trial court's judgment terminating her parental rights, asserting that the evidence is factually insufficient to establish that: (1) she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her children; and (2) that termination is in the children's best interest. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.
To terminate a parent's rights to her children, the Texas Department of Family and Protective Services must prove and the trial court must find by clear and convincing evidence both of the following statutory requirements: (1) that the parent has engaged in one of the statutory grounds for termination; and (2) that termination is in the children's best interest. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2005); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). The appellate standard for reviewing termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d at 25.
With regard to the first requirement, the trial court found the following three statutory grounds in support of termination: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children under section 161.001(1)(D); (2) engaged in conduct or knowingly placed the children with persons engaged in conduct which endangered the physical or emotional well-being of the children under section 161.001(1)(E); and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child under section 161.001(1)(O). Daniels only challenges the trial court's finding under section 161.001(1)(O). Because Daniels did not challenge the trial court's findings under section 161.001(1)(D) and section 161.001(1)(E), we need not further address the first requirement for the trial court to terminate Daniels' parental rights because the trial court's judgment as to the first requirement can be affirmed on the unchallenged alternative statutory grounds. See In re J.F.C., 96 S.W.3d 256, 284 (Tex. 2002); Green v. Texas Dept. of Protective and Regulatory Services, 25 S.W.3d 213, 219-20 (Tex.App.-El Paso 2000, no pet.). Accordingly, we need only address whether the evidence is factually sufficient to sustain the second required finding — that termination of the parent-child relationship is in the best interest of the children. See Green, 25 S.W.3d at 219-20.
In evaluating whether termination would be in the best interest of the children, the trial court was required to consider the following factors: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) any emotional and physical danger to the children now and in the future; (4) the parenting ability of the individuals seeking custody; (5) the programs available to assist those individuals to promote the best interest of the children; (6) the plans for the children by those individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); In re D.G., 5 S.W.3d 769, 772 (Tex.App.-San Antonio 1999, no pet.).
At the beginning of the hearing, the trial court noted that the court-appointed special advocate had filed her report with the court. The report noted that four-year-old D.S.D. and twenty-two-month-old J.E.W. were removed from their home in 2003 after a series of events including medical neglect, neglectful supervision, and reports of drug use in the home. The report noted that the current removal was the third time the Department had removed the children from the home. The children were previously removed because of physical abuse of J.E.W. and cocaine use by D.S.D.'s step-father. At the time of the first removal, there were allegations of drug paraphernalia in the bathroom. The third removal occurred only six months after the case was closed relating to the second removal.
D.S.D. was medically neglected when Daniels did not obtain treatment for an abscessed tooth, causing D.S.D's jaw to swell and resulting in a black eye that was almost swollen shut. Left untreated, an abscessed tooth may compromise the immune system and in some cases may become life threatening. D.S.D. had to have teeth extracted as they were unsalvageable.
On September 16, 2003, D.S.D. and J.E.W. were taken to the hospital in fear that they may have ingested the prescription drug Wellbutrin, which belonged to Angel Rabon, Daniel's friend with whom Daniels and the children were living. Wellbutrin is a dangerous drug for children and infants, often causing rapid heart rate and the possibility of a stroke.
On October 7, 2003, D.S.D. was seen crossing a bridge on Crockett Street. D.S.D. stated that he was going to his grandmother's house. While in foster care, D.S.D.'s incidents of swearing had decreased; however, during visits with Daniels, D.S.D. continued to have incidents of acting out, including swearing and angry play. D.S.D. does not always take direction from Daniels, and Daniels has trouble redirecting D.S.D.D.S.D. has trouble in school. He tells the teachers "off" and is physically aggressive towards others. D.S.D. has had instances of pulling down his own pants and the pants of other children. D.S.D. reportedly bites, punches and curses at both children and adults, and these incidents increase after visits with Daniels.
J.E.W. has bonded with her foster parents. In visits with Daniels, J.E.W. appears distant, spending much of her time playing alone or with D.S.D.
When the children were removed, Daniels signed a safety plan agreeing to move from Rabon's home where the children were exposed to prescription and illegal drugs. Against the Department's advice, Daniels moved in with her mother who has an extensive history with the Department. Daniels was told that the children would not be returned to her if she was living with her mother. Daniels also lived with her on-again-off-again boyfriend, Walter Wagner, who is J.E.W.'s father. At the time of the removal, Wagner was incarcerated, and Daniels reported that he was abusive. Daniels reconciled with Wagner when he was released from jail. Daniels was reportedly making superficial progress with her plan "much like she did when services were provided her at the time of the last removal."
Donna Masterson, a licensed chemical dependency counselor, recommended that Daniels obtain counseling because she was not admitting to any alcohol or drug problems at the time of her assessment. After Daniels admitted to having an alcohol problem in March of 2004, she agreed to attend regular AA meetings. Masterson believed that Daniels was misrepresenting that she was regularly attending meetings. Daniels admitted to Masterson that her drinking placed her children at risk.
Lynn McFadden, an investigator for the Department, assisted in removing the children from Daniels in October of 2003. McFadden testified regarding the incidents involving the Wellbutrin and D.S.D's abscessed tooth. While investigating another report about possible illegal drug use in the home and the children's exposure to needles and drugs, the Department received the report that D.S.D. was found walking alone across a bridge without shoes. Daniels stated that she had fallen asleep and D.S.D. had accidentally left the house while she was napping. In following-up on the illegal drug use, McFadden learned that officers said that there were syringes in the house. Daniels told McFadden that the syringes belonged to her roommate, who used them to inject medication for her teeth. Daniels told McFadden "she had allowed the children to play with them and chew on the ones that were used." McFadden also spoke with someone who stated she was at Daniels' house in the same time frame and "had seen her ex-boyfriend holding up his arm with a needle in his hand as if he had just shot up."
Wendy Powell, a case worker for the Department, testified that she had contacted Daniels a week prior to the hearing. Daniels was living in a new apartment with her two-month-old baby. Wagner was the father of the baby. Powell reviewed Daniels' earnings and expenses and noted that Daniels did not make enough money to support herself. Daniels discussed her wages and stated that she could pay rent, the electric bill, and day care for one child. Powell stated that Daniels would have no money left for any other expense or for the care of D.S.D. and J.E.W. The Department had no plans to remove the new baby. Powell stated that she did not believe Daniels was able to provide a safe and secure home for the children because Daniels would not likely be able to pay the rent and would be evicted in a month or so. The Department's plan was to have the children adopted together.
Georgia Brown, a supervisor with the Department, testified that Daniels had reconciled and separated from Walter Wagner several times during the pendency of the proceedings. Brown stated that during Daniels' visits with the children, the children took control. Daniels pleads and begs with the children to behave. Brown stated that Daniels had not demonstrated that she could provide long-term stability and safety for the children. Brown stated that adoption was the best choice for the children because long-term foster care is not stable. Prior to moving into the new apartment, Daniels was living with other people and frequently moving.
Daniels testified that before moving into her apartment, she lived with Walter Wagner's brother and another person for two months. Daniels testified that she complied with her counseling and did not regularly attend the AA meetings because they made her uncomfortable. Daniels stated that J.E.W. could attend the same day care as her new baby.
Joyce Aiken, the court-appointed advocate, stated that although Daniels had attended counseling, she had not been able to put the concepts into practice. Aiken did not believe Daniels could financially support the children. Aiken stated that Daniels was unable to manage D.S.D. during her visits. Aiken stated that D.S.D.'s behaviors escalate after his visits with Daniels.
In this case, D.S.D. and J.E.W. are too young to have a stated desire. See In re D.G., 5 S.W.3d at 772. The emotional and physical needs of the children were not being met at the time of their removal. D.S.D. was medically neglected. At the time of the removal, the children were in danger from neglect and possible exposure to drugs. Although Daniels superficially complies with the plans established for her, the Department had removed the children for a third time, and Daniels had not made any real progress in her ability to parent D.S.D. Although programs were available to assist Daniels, she misrepresented her attendance at AA. The Department's plans were for a joint adoption of the children. The children were being provided a stable home in foster care unlike the instability offered by Daniels in her frequent moves. Daniels' neglect had placed the children in physical danger. Accordingly, the evidence is factually sufficient to support the trial court's finding that the termination of Daniels' parental rights was in the best interest of the children. The trial court's judgment is affirmed.