Opinion
02-24-00162-CV
08-29-2024
In the Interest of A.A. and J.A., Children AND In the Interest of h. a., a Child
On Appeal from County Court at Law No. 1 Wichita County, Texas Trial Court Nos. CCL1-CP2023-0209, CCL1-CP2023-0298
Before Sudderth, C.J.; Womack and Wallach, JJ.
MEMORANDUM OPINION
Bonnie Sudderth, Chief Justice
Appellant Father appeals from judgments terminating his parent-child relationship with three of his children--Tabitha, Allison, and Gail--challenging the legal sufficiency of the trial court's finding that termination was in the children's best interest. We affirm.
We use pseudonyms to protect the children's identities. See Tex. R. App. P. 9.8(b).
Although Father mentions the factual-sufficiency standard in his brief, Father seeks only a rendition rather than a remand. See City of Univ. Park v. Van Doren, 65 S.W.3d 240, 246-47 (Tex. App.-Dallas 2001, pet. denied).
I. Brief Background
Father and Mother have had a tumultuous relationship involving verbal fighting, emotional abuse, substance abuse, and repeated interactions with law enforcement and Child Protective Services. Law enforcement reports indicate that over a several-year period Mother, a long-term drug user, made multiple unsubstantiated allegations that father had sexually abused the girls. However, officers also reported that the family was well-known to them and that both Mother and Father were not credible. Father had a history of alcohol abuse, including driving-while-intoxicated convictions from the 1980s.
After one of the CPS investigations--in 2019--Father and Mother divorced but continued to live together. Later, Allison, a juvenile, was adjudicated guilty of sexually abusing two younger children. Because her probation conditions prevented her from living with Gail, the youngest of the sisters, Mother moved out of the house to live with Allison. Gail and Tabitha, the eldest sister, remained living in the home with Father and the girls' older brother.
Despite eight prior instances of CPS involvement with the family--many of which involved allegations that CPS ruled out--the girls were not permanently removed from Mother's and Father's custody until 2023, after Tabitha showed up to school with burn marks on her chest and neck. Tabitha told school officials that Father had burned her, and she made an outcry that Father had sexually abused her.
Mother and Father never regained custody, and the Department pursued terminating their parent-child relationships with the girls. During trial, Mother entered into a negotiated settlement with the Department, relinquishing her right to a parent-child relationship with Allison and Gail, and agreeing to be Tabitha'spossessory conservator. As part of the agreement, she was entitled to at least four supervised visits per year and access to a Facebook page with pictures of the girls and information about them. Additionally, the girls were allowed to refuse contact with Mother. Mother did not appeal the trial court's judgments.
Tabitha was 17-and-a-half years old at the time of trial.
The trial court terminated Father's parent-child relationship with all three children.
II. Best-Interest Analysis
For a trial court to terminate a parent-child relationship, the party seeking termination must establish, by clear and convincing evidence, that (1) the parent's actions satisfy just one of the many predicate grounds listed in Family Code Section 161.001(b)(1), and (2) termination is in the child's best interest under Section 161.001(b)(2). In re A.H., No. 02-23-00348-CV, 2024 WL 191229, at *4 (Tex. App.- Fort Worth Jan. 18, 2024, pet. denied) (mem. op.). In Father's sole issue, he challenges only the legal sufficiency of the evidence to support the best-interest finding, focusing primarily on evidence suggesting that Tabitha's outcries of physical and sexual abuse were not credible.
A. Applicable Law and Standard of Review
In evaluating the evidence for legal sufficiency to support a best-interest finding, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the Department proved the termination is in the child's best interest. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment, and we resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We also must disregard all evidence that a reasonable factfinder could have disbelieved, in addition to considering undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id. In doing our job, we cannot weigh witness-credibility issues that depend on the witness's appearance and demeanor because that is the factfinder's province. Id. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id.
Although we generally presume that keeping a child with a parent is in the child's best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child's well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence probative of a child's best interest may be the same evidence that is probative of a Subsection (b)(1) ground. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence considering nonexclusive factors that the factfinder may apply in determining the child's best interest:
• the child's desires;
• the child's emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child's best interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent's acts or omissions that may indicate that the existing parent-child relationship is not a proper one; and
• the parent's excuse, if any, for the acts or omissions.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, "we consider, among other evidence, the Holley factors"); In re E. N.C. , 384 S.W.3d 796, 807 (Tex. 2012). These factors do not form an exhaustive list, and some factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may suffice in a particular case to support a finding that termination is in the child's best interest. Id. On the other hand, the presence of paltry evidence relevant to each factor will not support such a finding. Id.; In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex. App.-Fort Worth July 5, 2018, no pet.) (mem. op.).
B. Evidence Pertinent to Holley Factors
In our best-interest sufficiency analysis, we will recount the evidence relevant to each of the Holley factors, but we will combine them topically for ease of discussion.
1. The emotional and physical danger to the children now and in the future; Father's acts or omissions that may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions
• At the time of trial, Father had a pending criminal charge for allegedly assaulting Tabitha by burning her with a barbecue fork. He admitted doing so but only accidentally; Tabitha testified that Father had not intended to burn her. In 2010, Father pleaded guilty to assaulting Tabitha and was placed on 90 days' community supervision. He had originally been charged with injury to a child in that incident.
• Father was well-aware of Mother's long-term drug use, but he denied that she had any mental-health problems as a result. He continued to live with her and the children despite her drug use and repeated--and according to police and CPS unsubstantiated--allegations that he had sexually abused the girls. Father explained that he had never kicked Mother out of the house because he did not know how to do so. Also, he loved her and wanted her to be with the children, but he saw that allowing her to stay had been a bad choice. Both the caseworker and CASA representative believed Father and Mother had failed to sufficiently protect the children.
• As late as 2018, Father admitted to police that he disciplined the girls with a board, but he denied hurting them, saying that he only hit them "on the butt."
• The psychologist who assessed Father diagnosed him with "antisocial personality disorder" and noted Father's "denial of any role in his . . . children's removal and . . . history of failure to take responsibility of his role." Also, the psychologist found that Father had "a tendency to express discontent through emotional manipulation in which blame is externalized and projected onto others."
• Mother denied that Father had acted violently toward the girls, but she also told the caseworker and CASA representative that she and the girls were afraid of Father. Mother testified that Father had a history of using violent and controlling behavior with her and the girls, and that in the past they had reported it and then recanted. The CASA representative had seen Father became belligerent and refuse to leave when Mother wanted to talk to the representative alone. Mother did not appear to be comfortable speaking to the CASA representative in front of Father. Mother testified that she was worried that if the girls were returned to Father, they would be sexually assaulted and subject to physical violence.
• Father seemed to favor Gail. During visits, Father made a "huge point" of bringing excessive gifts and pointing out to Gail how much they had cost. One time, he brought a gift only for Gail and told her not to share it with the other girls. His relationship with Allison was not as
close. There were concerns about Father's engaging in possible grooming behaviors with Gail, but the CASA representative could not remember the details of those concerns.
• Father did not believe that Allison had committed an offense and blamed what had happened on one of the victims.
• Although Father had been ordered to have no contact with Tabitha, Mother knew that he had been communicating with her. She said that Father had pressured her to testify favorably in this case, and she believed he had done so to Tabitha. Both the caseworker and CASA representative thought Father had been communicating with Tabitha while under a court order not to do so; he knew about a fight she had been in at her placement before the Department had told him about it. But Father denied any such contact, saying only that his son had given her a message for him. Father admitted that he had "unsupervised contact" with Gail by giving her a message from his son. He also admitted that he had given her a tablet.
After the removal, Mother moved back in with Father; she did not move out of his home until mid-trial.
2. The children's desires and emotional and physical needs now and in the future
• All three of the girls wanted to be returned to their parents and live as a family, but Allison's probation conditions prevented her from living with Gail. Mother thought Tabitha needed to understand that even though she wanted them to live together as a family again, that would be impossible.
• Gail was doing well in her placement, had improved in school, and was making better grades. She had developed a "therapeutic relationship" with her parents and was in regular therapy. But her interaction with her parents was "transactional"; she wanted "things" and was concerned about when and how she would get them. According to the CASA supervisor, Father was "very agreeable" about giving Gail what she asked for. Gail received the most "stuff" of them all.
• Allison had become an "exceptional student," and was doing well in school, in extracurricular activities, and in her new placement. Allison was closer to Mother than Father and appeared to take on a caretaker
role with Mother. Allison and Tabitha were very close. Sometimes, however, Allison would blame Tabitha for the family's situation.
• Although before removal, Tabitha used to skip school, by the time of trial, she was "doing great" and was getting back to grade level.
• Tabitha and Mother were not as close as Mother and Allison. In the month to six weeks before trial, Tabitha had become more focused on material things, especially the material things she was going to get when she returned home. The CASA representative found this new focus to be "strange," and she was concerned that the girls were "being manipulated through buying them things," and that they were feeling pressured that way. She thought Tabitha was feeling it the most and that Tabitha thought the only way she could make the situation right was to take responsibility for everything.
• The CASA representative did not think the girls had been able to heal from their trauma; she also thought Mother and Father were not able to help the girls do so. The CASA representative did not see a strong parent-child bond between the girls and Father.
• Tabitha testified that she had lied in a previous hearing when she said Father had called her a "fucking bitch" and sexually assaulted her. She admitted that she missed her family and animals and that she wanted all three of the sisters to return home so that they could all be together again. She also relayed to the judge that Gail had told her to tell him that she missed her "dad dearly" and really wanted to go home. According to Tabitha, she lied in her abuse outcries because if Mother had gone to prison, Allison would go back to juvenile detention, and she didn't want that to happen.
• Tabitha admitted being her sisters' caretaker. She said that Gail would get sad and cry to go home when she was bullied by the other girls living with them. She felt responsible for Gail and thought that she could protect her in Father's home.
• Tabitha admitted that she had talked to her cousin using her friends' phones at school.
3. The Department's plans and their stability
• Tabitha and Gail had been in four placements; at the time of trial, they were living in a residential treatment center RTC) where they were receiving intensive therapy. But both she and Gail were unhappy in the RTC because they were not able to access their devices and had to share living arrangements with the other girls. If they could not go home, they wanted to live in a foster home. Tabitha and Gail were less concerned about the ongoing case when they were happy in their placements; when they were unhappy, they were more concerned about it. Tabitha had been involved in fights while in placement and was bruised and injured in one. She was also sexually assaulted while skipping school one day.
• Allison was living in a foster home out of town and liked it. She was receiving therapeutic services and abiding by her probation terms. Allison was also preparing to begin sex-offender treatment for juveniles.
• The Department's permanency plan was unrelated adoption. The caseworker testified that the Department also planned to introduce Allison back into her sisters' lives once her probation was completed.
4. The stability of the home; Father's parental abilities; any programs available to assist Father in promoting the children's best interest; and Father's plans
• Mother had told the caseworker that she was happy the girls were placed outside of Father's home, but her opinion had changed by the time of trial.
• Father planned for the girls to live in his home with him and his son. He had yet to figure out a plan for Allison since she could not live with her little sister; he said he would figure it out. Father hoped that if Mother got her life turned around, Allison could live with her. Alternatively, Father would consider having her live with his brother and sister-in-law. Father lived on social security disability income of a little over $1,000 per month and worked part-time with his brother making about $1,000 per month. He thought that he would be able to provide for all three girls financially if they were to live in the home he owned.
• Father's parenting plans were to be a better father, be more involved, and continue not to drink. Father had gone to at least 9 and possibly up to 20 AA meetings, and he thought that was enough; he denied being an alcoholic.
• The CASA representative had never been inside Father's home, but the caseworker had. She did not testify about any concerns with the physical living conditions.
• Although Father had been ordered to participate in sex-offender treatment, he had not significantly attended; he could not continue in the program because he would not admit guilt. Father also did not complete a drug-and-alcohol assessment.
• The caseworker believed termination was in the girls' best interest because of Mother's "continued drug use, [Father's] denial, [his] lack of honesty throughout his services, [Father's and Mother's] lack of completion of services, and [their] lack of protection of their children." She opined that both Mother and Father exhibited poor parenting skills and improper parent-child relationships.
C. Termination in Children's Best Interest
Considering the evidence pertinent to each of the Holley factors, we conclude that the evidence is legally sufficient to support the trial court's best-interest finding. Despite Father's argument, Mother's and Tabitha's allegations of physical and sexual abuse against him--whether true or not--were not the crux of the Department's evidence supporting the best-interest finding. The evidence also showed that Father refused to address his alcohol use; allowed the children to remain living with and have access to Mother, despite her long-term substance-abuse issues; exhibited poor parenting skills; failed to adequately protect his daughters from the dynamics of his relationship with Mother and failed to recognize their emotional needs, choosing to relate to them by giving them material things; was in denial about the problems the children faced, including Allison's serious legal situation; failed to maintain appropriate boundaries; and failed to take concrete steps to improve his parenting and relationship skills. See, e.g., In re C.W., No. 02-23-00414-CV, 2024 WL 637264, at *9- 10, *13 (Tex. App.-Fort Worth Feb. 15, 2024, pet. denied) (mem. op.); In re A.H., 2024 WL 191229, at *8; In re A.B., 412 S.W.3d 588, 595, 605, 607 (Tex. App.-Fort Worth 2013) (per curiam) (op. on reh'g), aff'd, 437 S.W.3d 498 (Tex. 2014). Accordingly, we overrule Father's sole issue.
III. Conclusion
Having overruled Father's sole issue, we affirm the trial court's judgments.