Opinion
No. 04-04-00194-CV
Delivered and Filed: February 23, 2005.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-PA-01571, Honorable Lori Cliffe Massey, Judge Presiding.
The Honorable Janet P. Littlejohn is the presiding judge of the 150th Judicial District Court, Bexar County, Texas. The Honorable Lori Cliffe Massey signed the order terminating parental rights.
Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Appellant Maria Y. appeals the trial court's order terminating her parental rights with respect to her three children, S.M., M.H., and B.B.Y. In eight issues, Maria Y. complains that the evidence was insufficient to support the termination of her parental rights. We overrule all issues and affirm the trial court's order.
Standard of Review
In proceedings to terminate the parent-child relationship, the petitioner must establish one or more of the statutory grounds for termination and must also prove that termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re K.R.M., 147 S.W.3d 628, 630 (Tex.App.-San Antonio 2004, no pet.). Under the clear and convincing evidence standard required for factual sufficiency review in termination cases, we ask whether sufficient evidence was presented to produce in the mind of the fact-finder a firm belief or conviction that grounds exist for termination and that termination is in the best interest of the child. In re K.R.M., 147 S.W.3d at 630; In re H.R., 87 S.W.3d 691, 696 (Tex.App.-San Antonio 2002, no pet.). In a legal sufficiency review when the burden is clear and convincing evidence, we "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. We must also "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. We must, however, consider undisputed evidence even if it does not support the finding. Id.
Discussion
Here, the trial court found, by clear and convincing evidence, three statutory grounds for termination: (1) Maria Y. has knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, see Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon 2002); (2) Maria Y. has 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, see id. § 161.001(1)(E); and (3) Maria Y. has failed to comply with the provisions of a court order that specifically established the actions necessary for [her] to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the children's removal from the parent under chapter 262 for the abuse or neglect of the children, see id. § 161.001(1)(O). The trial court also found by clear and convincing evidence that termination of the parent-child relationship between Maria Y. and her children was in the children's best interest. See id. § 161.001(2).
In eight issues, Maria Y. argues that the evidence was legally and factually insufficient to support these findings by the trial court. The evidence presented at the hearing shows the following: In August of 2002, the Department of Protective and Regulatory Services ("Department") received a referral alleging physical abuse of S.M. by Maria Y.'s boyfriend. S.M. had been taken to the hospital and had bruises on approximately forty percent of his body. As a result of this referral, Naomi Vasquez Montes, a case worker with the Department, was assigned to this case in September of 2002. According to Montes, she went over the service plan with Maria Y., and Maria Y. signed it. Montes informed Maria Y. that her parental rights could be terminated if she did not complete the plan. The court-ordered plan required Maria Y. to complete a drug and alcohol assessment, complete a psychological evaluation, complete parenting classes, attend weekly individual counseling, complete empowerment classes, obtain her GED, secure and maintain stable housing, and secure and maintain employment. Maria Y. was also ordered to follow all recommendations made as a result of the psychological evaluation and drug and alcohol assessment.
Maria Y. did not complete the service plan. With regard to the drug and alcohol assessment, it was recommended that she complete a substance abuse education class. She did follow through with this recommendation. She completed the psychological evaluation; from that evaluation, it was recommended that Maria Y. attend individual counseling sessions, attend a parenting education class, undergo periodic drug screens, attend vocational counseling sessions, complete anger management classes, and obtain housing. Montes, the caseworker, discussed these recommendations with Maria Y., but Maria Y. failed to follow through with the recommendations. Maria Y. failed to complete the parenting classes or the empowerment classes.
Maria Y. also did not complete the individual counseling sessions, and because of her missed appointments, the counselor, Betty Lewandowski, terminated the sessions. According to Lewandowski, she believed that by missing so many appointments, Maria Y. showed that she did not consider therapy a priority.
Additionally, Maria Y. did not obtain her GED. She did not obtain a job; according to her testimony, she has not worked since 2001.
Maria Y. also could not find a stable home. She has never had a consistent address and has lived with various friends and family. In fact, at the time of the hearing, she was incarcerated. On June 11, 1996, Maria Y. was first placed on community supervision for eight years for burglary of a habitation. According to her probation officer, Maria Y. complied with the conditions of her community supervision for only a short time. She was arrested in April of 1997 for a new offense, manufacturing and delivery of a controlled substance, for which she was placed on community supervision for five years. Again, she did not comply with the terms of her community supervision by writing "hot checks" in New Braunfels for which she served ninety days in county jail. Maria Y.'s community supervision was revoked on July 7, 2003. And, on the date of the hearing, February 18, 2004, she was still incarcerated.
According to Maria Y., during the time she was not incarcerated, she did not complete her various classes because she did not have money for bus fare. She did not call to cancel her appointments because she did not have money for the pay phone. And, she did not own a phone because she lived with friends. She admitted that her case worker had told her how important it was to attend the classes but she was too proud to ask her friends or family for transportation to the classes. Also, she had not complied with the service plan because she was "depressed."
According to Maria Y., she has not had a job since 2001. When asked why she did not attempt to obtain a job, she testified:
At first, I didn't get a job because I had — just had a baby. Well, when I came out [sic] from jail, I was still pregnant while my case was still pending. And when I had my baby, I had to have a C section, so I can't [sic] work right off the bat. And I was waiting for a while. And then I just didn't look for a job, you know. Like I said, [I was] involved with the wrong guy again. . . . I depend more on him when I shouldn't have. And now I know that, not to depend on anybody but myself.
The children's attorney ad litem then asked: "So you chose a guy over your children?" Maria Y. responded, "No, I didn't chose a guy over my children. I just chose the help of a guy, and he wasn't able to give me the help that I needed. My family as well was helping me with money."
The case worker, Montes, testified that Maria Y.'s three children have various medical problems:
S.M. is currently in a foster adopt home. He is having some behavior difficulties. He's been diagnosed with possible fetal alcohol syndrome, and he receives speech therapy at the school. He's in a main stream classroom at this time. They are going to pass him to the first grade, but tutoring is going to be required of him. S.M. is — has follow-up with an endocrinologist. He's very small for his age. [There is] a possible concern of malnutrition. He participates in weekly therapy, weekly play therapy. And he recently had a psychiatric evaluation, due to his behaviors. At this time, they were recommending medication for him. . . . M.H. and B.B.Y. are placed in a foster home together. M.H. is diagnosed with alcohol-related neurodevelopmental disorder. She had cognitive and speech delay. Her right eye is somewhat weak, and she requires follow-up with the ophthalmologist. At this time, they are not going to do any surgery. They are waiting to see if it will strengthen on its own. She is working with ECI doing play and speech therapy and working on that right eye. B.B.Y. has delayed motor skills. He's one. He's unable to sit unassisted. He has very poor neck control. And, he receives physical therapy through ECI. They are just following him to see what other services he might need, as they are not quite sure. They don't really have a diagnosis of what is wrong with him at this time.
Ray Montelongo, S.M.'s proposed adoptive father, also testified. S.M. was placed with Montelongo's family on December 19, 2002. According to Montelongo, when S.M. was first placed, he was defiant and angry. He did not have much of a vocabulary, and he was very thin for his age. He was also very fearful. Since S.M.'s placement, Montelongo has noticed a dramatic improvement. However, when S.M. feels that he has done something wrong, he is still fearful that someone will hurt him physically.
According to Maria Y., the only evidence supporting her knowingly placing or knowingly allowing the children to remain in conditions or surroundings which endangered their physical or emotion well-being was the "hearsay testimony" of the caseworker, Montes. Montes's testimony was not, however, objected to as hearsay.
Maria Y. also argues that while she has "admitted" to making bad choices with respect to men, "choosing more than one man that physically abused her, there is no evidence that any of the children ever saw such abuse occur." We disagree. The Department became involved in this case on a referral that Maria Y.'s boyfriend had caused bruises on forty percent of S.M.'s body. And, Montelongo testified that S.M. still acted fearful that someone would physically abuse him.
In reviewing this record, there is legally and factually sufficient evidence to support all three grounds found by the trial court in support of its termination order. Looking at the evidence in the light most favorable to the trial court's findings, a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. And, sufficient evidence was presented to produce in the mind of the fact-finder a firm belief or conviction that grounds exist for termination.
Maria Y. also makes a technical argument that there is no evidence that she failed to comply with a court-ordered family service plan:
There was a great deal of testimony about [Maria Y.]'s failure to comply with her family service plan. And, upon [the State]'s request, the court took judicial notice of [her] family service plan. However, the court was never asked to take judicial notice of any order into which the Family Service Plan was incorporated by reference. Therefore, there was no proof that [Maria Y.] violated any court order that specifically established the actions necessary for the parent to obtain the return of the children. Presumably, it is for this reason that [Maria Y.]'s trial counsel usually asks the court to take judicial notice "of the court's entire file."
Maria Y. cites no authority for this assertion and as such, has waived it. See Tex.R.App.P. 38.1(h). Moreover, on the merits, we disagree with Maria Y.'s argument. At the end of the hearing, the court took judicial notice of the family service plan that was signed by Maria Y. and filed with the trial court. Maria Y. testified that she did sign the family service plan. And, the clerk's record contains the trial court's order, ordering Maria Y. "to comply with each requirement set out in the Department's original, or any amended, service plan during the pendency of this suit."
Furthermore, under section 161.001, the State needed to prove only one ground under subsection (1). Thus, even if what Maria Y. argues is accurate, there is sufficient evidence to support the trial court's order on the ground that (1) Maria Y. knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the children's physical or emotional well-being, see Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon 2002), and (2) Maria Y. engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children, see id. § 161.001(1)(E).
Finally, Maria Y. argues that there is legally and factually insufficient evidence to support the trial court's finding that termination was in the best interest of the children. When determining the best interest of the child, the trial court should consider such factors as: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the programs available to assist these individuals to promote the best interest of the child; (5) the plans for the child by these individuals; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. In re K.R.M., 147 S.W.3d at 630-31. This list, however, is not exhaustive nor must all these considerations be proved as a condition precedent to termination. Id. at 631.
Maria Y. admits that "much of the testimony touched on some of [these] factors," but contends that the best interest of the children was only addressed by the case worker, Montes, who recommended that, in the best interest of the children, Maria Y.'s rights should be terminated because of her unstable housing and bad decision-making that results in her children being injured. According to Maria Y., Montes's testimony only goes to two factors.
We disagree. There is legally and factually sufficient evidence to support the trial court's finding that terminating Maria Y.'s parental rights is in the best interest of the children. There was testimony that all three children have developmental and physical problems. Two of them have health issues that may relate to Maria Y.'s ingestion of alcohol during pregnancy. And, the baby has physical problems that have yet to be diagnosed. While these children will need much help overcoming their problems, Maria Y. has not demonstrated that she is capable of taking care of these children. The children's attorney ad litem succinctly summed up this point when she argued to the court:
Your Honor, as you have heard, these children have multiple problems. And, the reason they have multiple problems is because of [Maria Y.]. [Maria Y.] can't even make her appointments and do the things that she has to do to get her children back. So, if she can't do that, how is she going to properly take care of these children? How is she going to get them to school, get them to the store to buy supplies, get them to the doctor's office? If they are on medication, [how is she going to get them] to therapy, get them to [the] pharmacy, or get them to the therapeutic sessions, and get them to the psychiatrist? How is she going to do all of this and meet their needs? I mean they are going to have tremendous needs with fetal alcohol syndrome, tremendous needs, emotional and physical needs. How is she going to do that if she can't even hold a job? She can't save enough money to take the bus.
Additionally, the testimony showed that many programs were available to Maria Y., but that she failed to follow through on them. Further, Maria Y. has a history of associating herself with men that abuse her and at least one of her children, S.M. At the hearing, Maria Y. admitted that even after the children had been removed, she had once again involved herself with the "wrong" man. And, as pointed out by Maria Y. herself, she has been wholly unable to provide stable housing for her children. Finally, Maria Y.'s excuses for failing to comply with the service plan consist of being depressed, just having given birth, and becoming involved with the "wrong" man. In reviewing this record, there is both legally and factually sufficient evidence to support the trial court's finding that termination is the best interest of the children.
We overrule all issues.
Conclusion
Having overruled all issues, we affirm the trial court's order terminating Maria Y.'s parental rights.