Opinion
12-24-00275-CV
12-20-2024
IN THE INTEREST OF C.N., A CHILD
Appeal from the 321st District Court of Smith County, Texas (Tr. Ct. No. 22-2624-D)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
Brian Hoyle Justice
D.R. appeals the termination of her parental rights to C.N. In two issues, she urges the evidence is insufficient to support the trial court's judgment. We affirm.
Background
D.R. is the mother of C.N. and W.R., and M.D. is C.N.'s father. On December 1, 2022, the Department of Family and Protective Services (the Department) filed an original petition for protection of C.N. and W.R., for conservatorship, and for termination of D.R.'s and M.D.'s parental rights. The Department was named temporary managing conservator of the children. D.R. was appointed possessory conservator with limited access to and possession of the children.
D.R. retained her parental rights to W.R. M.D.'s rights were also terminated, but he is not a party to this appeal.
Following a bench trial, the trial court found, by clear and convincing evidence, that D.R. engaged in one or more of the acts or omissions necessary to support termination of her parental rights to C.N. under subsections (D), (E), and (O) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between D.R. and C.N. is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between D.R. and C.N. be terminated. This appeal followed.
Termination of Parental Rights
Involuntary termination of parental rights involves fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). Because a termination action permanently sunders the bonds between parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.-El Paso 1998, no pet.). "[W]e must exercise the utmost care in reviewing the termination of parental rights to be certain that the child's interests are best served and that the parent's rights are acknowledged and protected." Vela, 17 S.W.3d at 759.
Section 161.001(b) of the Texas Family Code permits a court to order termination of parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001(b) (West 2023). The movant must show that (1) the parent committed one or more predicate acts or omissions, and (2) termination is in the child's best interest. See id. § 161.001(b)(1), (2). Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. Id. § 161.001(b); Wiley, 543 S.W.2d at 352; In re J.F.C., 96 S.W.3d at 256, 263-64 (Tex. 2002).
The "clear and convincing" evidentiary standard for termination of parental rights is both constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. "Clear and convincing evidence" is defined as "the measure or 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." TEX. FAM. CODE ANN. § 101.007 (West 2023). The party seeking termination of parental rights bears the burden of proof. In re J.F.C., 96 S.W.3d at 26364.
Standard of Review
When presented with a challenge to both the legal and factual sufficiency of the evidence, an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no pet.). When reviewing the legal sufficiency of the evidence, we review 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 at 266. 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 incredible. Id. If no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, the evidence is legally insufficient. Id. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st Dist.] 1997, pet. denied).
When reviewing the factual sufficiency of the evidence, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing, and we consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its ruling. In re J.F.C., 96 S.W.3d at 266. If, considering 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, the evidence is factually insufficient. Id.
Termination Under § 161.001(B)(1)(D) and (E)
In her first issue, D.R. argues that the evidence is legally and factually insufficient to support the trial court's predicate findings that her parental rights to C.N. should be terminated pursuant to subsections (D) and (E) of Texas Family Code Section 161.001(b)(1).
D.R. also challenges the sufficiency of the findings regarding subsection (O) of Section 161.001(b)(1); however, we need not address that challenge if the evidence is sufficient to support subsections (D) and (E). See TEX. R. APP. P. 47.1; In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). Therefore, we address those subsections first.
Applicable Law
The court may order termination of the parent-child relationship if the court 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. TEX. FAM. CODE ANN. § 161.001(1)(D). Subsection (D) addresses the child's surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.-Texarkana 2003, no pet.). The child's "environment" refers to the suitability of the child's living conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine whether there is clear and convincing evidence of endangerment is before the child was removed. Ybarra v. Tex. Dep't of Human Servs., 869 S.W.2d 574, 577 (Tex. App.-Corpus Christi 1993, no pet.). Further, subsection (D) permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. denied).
When seeking termination under subsection (D), the Department must show that the child's living conditions pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 S.W.2d at 577. Further, there must be a connection between the conditions and the resulting danger to the child's emotional or physical well-being. Ybarra, 869 S.W.2d at 577-78. It is sufficient that the parent was aware of the potential for danger to the child in such environment and disregarded that risk. In re N.R., 101 S.W.3d at 776. In other words, conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. Interest of M.D.M., 579 S.W.3d 744, 765 (Tex. App.-Houston [1st Dist.] 2019, no pet.). We have previously concluded it is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom a child is compelled to associate on a regular basis in his home, is not inherently a part of the "conditions and surroundings" of that place or home. In re B.R., 822 S.W.2d 103, 106 (Tex. App.-Tyler 1991, writ denied). Subsection (D) is designed to protect a child from precisely such an environment. Id.
"Endanger" means to expose to loss or injury or to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.M., 58 S.W.3d 802, 811 (Tex. App.-Fort Worth 2001, no pet.).
Subsection (E) requires us to look at the parent's conduct alone, including actions, omissions, or the parent's failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.-Dallas 2003, pet. denied); In re D.M., 58 S.W.3d 802, 811 (Tex. App.-Fort Worth 2001, no pet.). Termination under subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.-Fort Worth 2000, pet. denied). A voluntary, deliberate, and conscious "course of conduct" by the parent that endangers the child's physical and emotional wellbeing is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634. Because the evidence pertaining to subsections (D) and (E) is interrelated, we conduct a consolidated review. See In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.-San Antonio 2007, no pet.).
As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.-Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied). Endangering conduct is not limited to actions directed towards the child but may include the parent's actions before the child's birth and while the parent had custody of older children. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.-Fort Worth 2004, pet. denied) (courts may look to parental conduct both before and after child's birth to determine whether termination is appropriate). Further, the conduct may occur both before and after the child has been removed by the Department. Walker v. Tex. Dep't of Family &Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). It is further not necessary that the endangering conduct causes the child to actually suffer injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440.
Analysis
The evidence at trial showed that the Department became involved in the case after two incidents concerning D.R. and C.N. The first incident occurred in October 2022 when C.N. was four years old. D.R. testified that she heard "banging on the door" to her apartment while she was home showering with W.R. When she got out of the shower, C.N., who is deaf and visually impaired, was "throwing stuff" out of her second-story window at a car and a police officer. When asked how C.N. was able to open the window, D.R. initially testified, "I have no clue." She denied knowing that she needed to child proof the window. Later, she testified that the window's locking mechanism broke.
The second incident occurred in November 2022 at the City of Tyler Water Department. D.R. was observed dragging C.N. across the floor and kicking him. D.R. testified that she tried to get his attention but that "[b]ecause of his visual impairment, as well as being deaf, there is no communication present whatsoever." She admitted lifting C.N. up by one arm, which caused his feet to lift off the ground because he "was in the middle of a fit." During this same occurrence, D.R. left C.N. and W.R. alone in their car seats eating food, with the car running, while she went back inside. D.R. testified that she parked her car directly in front of the glass doors so that she could see the children and communicate with C.N. via sign language. She agreed that there was at least "a thirty-second period" where she did not have her eyes on the children. When asked if it was safe and appropriate to leave a four-year-old and nineteen-month-old in the car alone, D.R. initially responded, "I plead the Fifth."
D.R. is currently on "probation" for aggravated assault of a household member with a deadly weapon. When asked if she stabbed her former boyfriend with a knife, she stated that she pleaded guilty but claimed to not remember the details of the incident. She also admitted to spending three months in psychiatric care and having two additional charges for assault against family members.
D.R. was allowed unsupervised visits with C.N. after completing some of her services. However, after an unsupervised visit on May 10, 2023, C.N. returned home with a bruise on his penis. His foster mother testified that he began screaming when he went to the bathroom. His foster mother immediately took him to the emergency doctor, and the hospital "reported it as child abuse." The Department referred the case to the Forensic Assessment Center Network for an evaluation of the injury. Dr. Kristen Reeder, a board-certified child abuse pediatrician, determined that the injury is consistent with a "squeezing or compression to the tip of the penis and is concerning for an inflicted injury." She testified that the injury is seen in child abuse cases and is more common during potty training years. Dr. Reeder did not physically examine C.N. or speak with D.R. She testified that the Department sent her eleven photographs, a history of conversations with D.R. and D.R.'s attorney, and a prior exam of C.N. by a sexual assault nurse examiner. Syler Valley, a former Department caseworker, testified that C.N. was uncomfortable going to the bathroom with D.R. following the incident. For example, on one occasion, D.R. took C.N. and W.R. to the restroom. D.R. pulled down C.N.'s pants and placed him on the toilet, and C.N. signed "no" to her. After he got down from the toilet, he covered his penis and signed "no" to D.R. again. The Department did not allow him to go to the bathroom alone with her again and reinstituted supervised visitation.
Seven individuals testified regarding their observations of D.R.'s supervised visits with C.N. The testimony consistently showed that D.R.'s visits often started well but quickly became chaotic. Additionally, D.R. regularly brought excessive amounts of sugary snacks and sodas, even after the Department requested healthier alternatives. According to the testimony, D.R. interacted more positively and proactively with W.R., evidencing a stronger bond with him, while D.R. struggled to communicate with C.N., often talking and signing to him while his back was turned. During the visits, C.N. displayed aggressive behaviors toward W.R., and D.R. struggled to manage, redirect, or calm his behavior. D.R. regularly appeared inattentive or disconnected and often needed interventions. According to supervisors, D.R. often handled C.N. in a forceful manner that could cause injuries. For example, one day after C.N. pushed W.R., D.R. picked up C.N. "so hard that his head popped backwards, and his glasses came flying off his head." In addition, D.R. often appeared defiant, hysterical, or aggravated. In one instance, D.R. began giving C.N. a haircut, "[b]ut she was going really fast" and appeared to be hurting C.N., so the supervisors intervened. D.R. dismissed their concerns and claimed C.N.'s reactions were caused by his autism. D.R. often cited C.N.'s autism as justification for his conduct, as well as hers. She also refused to discipline during the visits. Despite attending parenting classes and other services, her visits failed to improve during the pendency of the case. At the last inperson visit, D.R. spent most of the time on the phone while C.N. behaved aggressively toward W.R. D.R. forcefully pulled C.N. across the room, threw him on the couch, and pinched his thigh, leaving a mark.
Furthermore, D.R. testified to telling her cousin that she would share her psychotropic medication. And when the trial court and attorneys raised her Fifth Amendment right, D.R. responded, "It's okay . . . I know it's a felony. It's fine. Please sit down. I know."
After reviewing the evidence in the light most favorable to the judgment, we hold that a reasonable factfinder could have formed a firm belief or conviction that D.R. knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered his physical or emotional well-being and engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Furthermore, having considered the entirety of the evidence, both that which supports and that which is contrary to the trial court's findings, we conclude that any disputed evidence is such that a reasonable fact finder could reconcile such disputed evidence in favor of its findings. See In re J.F.C., 96 S.W.3d at 266. Therefore, we hold that the evidence is legally and factually sufficient to support termination of D.R.'s parental rights to C.N. under subsections (D) and (E) of Texas Family Code Section 161.001(b)(1). Accordingly, we overrule D.R.'s first issue.
Best Interest of the Child
In her second issue, D.R. contends the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in C.N.'s best interest.
Applicable Law
Trial courts have wide latitude in determining a child's best interest. Interest of I.N.B., 662 S.W.3d 631, 647 (Tex. App.-Beaumont 2023, no pet.). In determining the best interest of the child, courts consider a non-exhaustive list of factors, including: (1) the desires of the child; (2) the child's emotional and physical needs 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) programs available to assist these individuals to promote the child's best interest; (6) plans for the child by these individuals or the agency seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
The Texas Family Code also provides a list of factors that we will consider in conjunction with the Holley factors. TEX. FAM. CODE ANN. § 263.307(b) (West 2023). These statutory factors include (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id.
No particular Holley factor is controlling, and evidence of one factor may be sufficient to support a finding that termination is in the child's best interest. In re A.P., 184 S.W.3d 410, 414 (Tex. App.-Dallas 2006, no pet.). The evidence need not prove all the statutory or Holley factors to show that termination of parental rights is in a child's best interest. See Holley, 544 S.W.2d at 372; In re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.-Houston [14th Dist.] 2003, no pet.). The best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d at 814. Evidence supporting the statutory predicate grounds for termination of parental rights is also probative in determining whether termination is in the child's best interest. See In re C.H., 89 S.W.3d at 28-29. In conducting a best-interest analysis, "a court may consider not only direct evidence but also may consider circumstantial evidence, subjective factors, and the totality of the evidence." In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). We will apply the relevant statutory and Holley factors below.
Analysis
The evidence at trial showed that C.N, who was five years old at the time of trial, has significant special needs. D.R. consistently attended visits with C.N.; however, those visits were generally chaotic and demonstrated a lack of bond between D.R. and C.N. D.R. was unable to effectively communicate with C.N. as well. In his foster placement, C.N. is learning American Sign Language (ASL) and progressing in school, physical and emotional health, and has been potty-trained. C.N.'s foster mother is a deaf education teacher, is married, and has two children. His foster mother testified, "When [C.N.] first came, he was timid, almost scared. And now he is a happy-go-lucky kid and loved to be around us, and he's part of our family." She and her family wish to adopt C.N.
Patricia Glass, C.N.'s court-appointed special advocate, testified that C.N. is doing well in his foster placement and was playful and interacted well with his foster siblings. Glass did not see C.N. engage in aggressive behavior toward the foster siblings. In addition, Glass opined that C.N. appeared emotionally attached to his foster mother. She observed the foster mother and C.N. effectively communicate and she "could tell that he truly understood what was going on, and being able to communicate and have that autonomy for himself was really neat to watch."
As detailed above, the evidence showed that D.R. endangered C.N. both before and after removal. She left him unattended in both her apartment and a running vehicle. Her disciplinary choices also physically harmed C.N. Additionally, D.R. failed to put her completed services into practice. She continued bringing an excess of sugary snacks to visits and using the same disciplinary tactics, despite knowing that they were ineffective or harmful.
"[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 2019). After viewing the evidence in the light most favorable to the trial court's best interest finding and applying the statutory and Holley factors, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that termination of D.R.'s parental rights was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. Any contrary evidence is not so significant that a reasonable factfinder could not have reconciled it in favor of its finding and formed a firm belief or conviction that terminating D.R.'s parental rights is in the child's best interest. Because the evidence is legally and factually sufficient to support the trial court's best interest finding, we overrule D.R.'s second issue.
Disposition
Having overruled D.R.'s first and second issues, we affirm the trial court's judgment.
JUDGMENT
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.