Opinion
NO. 12-11-00384-CV
09-28-2012
IN THE INTEREST OF C.T., A CHILD
APPEAL FROM THE
COUNTY COURT AT LAW
VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
A.P. and J.T. appeal the termination of their parental rights to C.T. A.P. raises eight issues, and J.T. raises seven issues. We affirm.
BACKGROUND
A.P. and J.T. (collectively Appellants) are the parents of C.T., who was born on September 23, 2009. On September 22, 2010, the Department of Family and Protective Services (the Department) filed a petition for protection of C.T., for conservatorship, and for termination in a suit affecting the parent-child relationship. That same day, the trial court signed an emergency order naming the Department as temporary sole managing conservator of C.T. The first adversarial hearing was held on October 5, 2010, at which the court ordered the Department to continue as temporary managing conservator of the children. The court ordered, among other things, that A.P. submit to a court-ordered psychological or psychiatric evaluation and follow all recommendations, attend and cooperate in counseling, attend and cooperate in parenting classes, submit to a court-ordered drug and alcohol dependency assessment and follow the recommendations of the assessment, submit to random drug testing, and comply with the Department's service plan requirements. The trial court also ordered J.T. to comply with the Department's service plan requirements.
A jury was selected on October 25, 2011, and the case proceeded to trial. Ultimately, a unanimous jury determined that the parent-child relationship between Appellants and C.T. should be terminated.
The original dismissal date for this case was September 26, 2011. On September 7, 2011, the district judge transferred the case to the Van Zandt County Court at Law. The next day, a permanency hearing was held in which the associate judge extended the dismissal date to March 25, 2012. Despite the order of transfer, the district court maintained jurisdiction until September 26, 2011, the date on which the Honorable Randal McDonald acknowledged receipt of the district court's transfer of the case. See TEX. FAM. CODE ANN. § 155.005 (West 2008); Bigham v. Dempster, 901 S.W.2d 424, 430-31 (Tex. 1995) (court's jurisdiction does not depend on "whether, or with what diligence, a clerk performs a ministerial duty to forward court documents"; case is docketed when court to which case is transferred has received certified copy of transfer order and asserts jurisdiction, or when all files have been transferred, whichever occurs first).
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights. In re C.L.C., 119 S.W.3d 382, 390 (Tex. App.—Tyler 2003, no pet.); Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001). When the state seeks to terminate one's parental rights, it seeks not only to infringe one's fundamental liberty interest, but to end it. See In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). A termination decree is "complete, final, irrevocable [and] divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child's right to inherit." 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.). Thus, the breaking of bonds between a parent and child "can never be justified without the most solid and substantial reasons." Wiley, 543 S.W.2d at 352; In re Shaw, 966 S.W.2d at 179. Because a termination action "permanently sunders" the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley, 543 S.W.2d at 352; In re Shaw, 966 S.W.2d at 179. However, parental rights are not absolute, and it is vital that the emotional and physical interests of the child not be sacrificed at the expense of preserving that right. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Section 161.001 of the Texas Family Code permits the termination of parental rights if two elements are met. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection of the statute. Id. § 161.001(1) (West Supp. 2012); In re C.L.C., 119 S.W.3d at 390. Second, termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West Supp. 2012); In re C.L.C., 119 S.W.3d at 390. Both elements must be proved by "clear and convincing evidence," and proof of one element does not alleviate the petitioner's burden of proving the other. Id. "Clear and convincing evidence" means 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 2008). Because there is a strong presumption that the best interest of the child is served by preserving the parent-child relationship, the burden of proof rests upon the party seeking to deprive the parent of his parental rights. See Wiley, 543 S.W.2d at 352; In re C.L.C., 119 S.W.3d at 390-91.
MOTION TO DISMISS
In her seventh issue, A.P. contends that the trial court erred in not granting Appellants' motion to dismiss after the Department "nonsuited" the conservatorship portion of its case. J.T. makes the same argument in his sixth issue. The Department asserts that the issue is moot because the trial court reversed its ruling the following day. Facts
After the jury was selected, but prior to opening statements, the Department moved to "nonsuit" the conservatorship portion of its petition. The trial court granted the Department's request. A.P. argued that the "nonsuit" put Appellants "at a huge disadvantage." J.T. made an oral motion to dismiss the "whole case" asserting that the Department lacked standing to pursue termination if it did not also seek permanent managing conservatorship of C.T. After hearing extensive argument, the trial court recessed the case to allow the parties to research the issue. The following day, the trial court reconvened the hearing, reversed its original ruling granting the nonsuit, and reinstated the conservatorship portion of the Department's petition. The court informed the parties that they were "going to be back where we were" before the Department made its oral motion to nonsuit. Standard of Review and Applicable Law
A motion to dismiss a case is a matter ordinarily addressed to the sound judicial discretion of the trial court. City of Waco v. Texas Coffin Co., 472 S.W.2d 800, 804 (Tex. App.—Waco 1971, writ ref'd n.r.e.). Therefore, we review the trial court's ruling on a motion to dismiss for an abuse of discretion. See id.
A "nonsuit" is a termination of the pleaded causes of action and asserted defenses without an adjudication of their merits that returns the litigants to the positions they occupied before the petitioner invoked the court's jurisdiction. Rexrode v. Bazar, 937 S.W.2d 614, 619 (Tex. App.— Amarillo 1997, no writ). Ordinarily, a party has an absolute right to a nonsuit the moment it makes a timely oral or written request for the nonsuit, and a trial court is without discretion to refuse an order dismissing a case. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). But in a suit seeking termination of parental rights, a nonsuit is not an absolute right of the petitioner. See TEX. FAM. CODE ANN. § 161.203 (West 2008). Instead, a nonsuit or dismissal of a termination may not be taken unless it is approved by the trial court. See id. Ordinarily, the trial court has the authority to change a previous ruling during the pendency of a case. See, e.g., Schlafly v. Schlafly, 33 S.W.3d 863, 871 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); Bodenschatz v. Bodenschatz, No. 03-97-00433-CV, 1998 WL 153565, at *5 (Tex. App.—Austin Apr. 2, 1998, no pet.) (not designated for publication) (op. on reh'g). Analysis
Here, Appellants contend that they were severely prejudiced by the trial court's denial of their motion to dismiss. More specifically, they argue that the Department's nonsuit left the Department without standing to pursue the termination because conservatorship is an element that is essential to proceeding in a suit affecting the parent-child relationship. They also contend that all previously entered orders in the case were no longer valid because an essential portion of the Department's petition had been nonsuited.
Appellants' argument presupposes that the trial court's reversal of its ruling granting the Department's nonsuit was of no effect. However, neither appellant has made any such argument on appeal. Moreover, the trial court's subsequent ruling resulted in the reinstatement of the conservatorship portion of the Department's case. Accordingly, we overrule A.P.'s seventh issue and J.T.'s sixth issue as moot.
STANDARD OF REVIEW SUFFICIENCY OF THE EVIDENCE
When the burden of proof is clear and convincing evidence, we conduct a legal sufficiency review by looking at all of the evidence in the light most favorable to the finding to determine whether a reasonable fact finder 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 must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. Id. Thus, it follows that the reviewing court should disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible, but this does not mean that the reviewing court must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. If, after conducting our legal sufficiency review, we determine that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then we will conclude that the evidence is legally insufficient. Id.
When we conduct a factual sufficiency review, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Id. If, when viewed in light of the entire record, the disputed evidence is so significant that a fact finder could not have reasonably formed a firm belief or conviction, then the evidence is factually insufficient. Id. In finding evidence factually insufficient, the appellate court should detail why it has concluded that a reasonable fact finder could not have credited disputed evidence in favor of its finding. Id. at 267.
The standard of review for legal and factual sufficiency challenges maintains a deferential standard for the fact finder's role, which means the trier of fact is the exclusive judge of the credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d at 26-27; Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). Thus, our review must not be so rigorous that the only fact findings that could withstand review are those established beyond a reasonable doubt. In re C.H., 89 S.W.3d at 26.
TERMINATION UNDER SECTION 161.001(1)(E)
In A.P.'s third issue, she contends the evidence is legally and factually insufficient to show that she engaged in conduct or knowingly placed C.T. with persons who engaged in conduct that endangered C.T.'s physical or emotional well being. In J.T.'s third issue, he contends the evidence is legally and factually insufficient to show that he engaged in conduct or knowingly placed C.T. with persons who engaged in conduct that endangered C.T.'s physical or emotional well being. Applicable Law
A court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well being of the child. See TEX. FAM. CODE ANN. § 161.001(1)(E) (West Supp. 2012). "Endanger" means more than a threat of metaphysical injury or the possible ill effects of a less than ideal environment. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It is not necessary that the conduct be directed at the child or that the child actually suffered injury; rather, it is sufficient that the child's well being be jeopardized or exposed to loss or injury. In re J.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ denied).
Termination under subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d 801, 812 (Tex. App.-Fort Worth 2001, no pet.). A parent's conduct need not occur in the child's presence in order to constitute endangerment. See In re C.R., 263 S.W.3d 368, 372 (Tex. App.—Dallas 2008, no pet.). The courts have recognized that the "conduct" referenced in subsection (E) encompasses a voluntary, deliberate, and conscious "course of conduct" by the parent. In re D.M., 58 S.W.3d at 812.
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 434, 503 (Tex. App.—Fort Worth 2009, no pet.). A parent's imprisonment will not, standing alone, constitute endangerment. Latham v. Dep't of Family & Protective Servs., 177 S.W.3d 341, 348 (Tex. App.—Houston [1st Dist.] 2005, no pet.). But evidence showing a course of conduct that routinely subjects a child to the probability that he will be left alone because his parent is once again jailed, whether because of the continued violation of probationary conditions or because of a new offense growing out of a continued use of illegal drugs, or because the parent is once again committed to a rehabilitation program, endangers both the physical and emotional well being of a child. In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). A parent's use of illegal drugs may also be considered endangering conduct that supports terminating parental rights. In re C.R., 263 S.W.3d at 372. A.P.'s Conduct
At trial, A.P. testified that she is a methamphetamine addict, with her longest period of sobriety occurring from 2004 to 2006. A.P. testified that she had used methamphetamine prior to the Department's removal of C.T. and had smoked marijuana while caring for C.T. She explained that she would smoke marijuana in the mornings once C.T. had been fed and went back to sleep. A.P. testified that she used ecstasy right after high school and cocaine in 2001, but methamphetamine and marijuana were her drugs of choice. A.P. confirmed that she has served time in jail for committing the offenses of possession of methamphetamine as well as theft. She testified that she had two felony convictions for possession of methamphetamine and twice failed to complete a drug rehabilitation program as a condition of her probation. As a result, she served time in prison for each offense. Throughout the pendency of the current case, A.P. admitted that she used methamphetamine and marijuana, with her most recent use of methamphetamine occurring approximately one month prior to trial. She stated that she did not believe her drug use "hinder[ed]" her ability to be a "good parent," and insisted that she was "a very good mother." A.P. testified that her "act is together with the exception of [her] addiction."
A.P.'s testimony also revealed that she had given birth to three other children before C.T. A.P.'s first child lives with his father, and A.P. confirmed that she has been incarcerated for criminal nonsupport of her first child. A.P. voluntarily gave up her second child for adoption at birth. During the first trimester of her pregnancy with her third child, A.P. used methamphetamine. A.P.'s third child was born with cerebral palsy and was placed almost immediately in the Department's care after his birth. A.P. testified that she "[had] no idea" whether her parental rights to her third child were terminated. The Department offered an order of termination that revealed A.P.'s parental rights to her third child were involuntarily terminated.
It is undisputed that Jessica Callaway, the caseworker, had no personal knowledge of the conditions of Appellants' home at the time of C.T.'s removal. Testimony revealed that Appellants' home did not have air conditioning or running water, but Callaway agreed that these were not conditions that would have caused concern if water was available and fans were used to keep the home cool during the day. Two days prior to C.T.'s removal, law enforcement responded to a report of a dead pit bull in Appellants' yard. C.T. was not removed from Appellants' care because of pit bulls near the home, or the lack of running water or air conditioning inside the home. A.P. and J.T. were arrested on charges unrelated to child endangerment and an appropriate placement for C.T. could not be located at the time of Appellants' arrest. Accordingly, C.T. was placed in the Department's care. J.T.'s Conduct
At the time of trial, J.T. was incarcerated on a motion to revoke probation for the felony offense of burglary of a habitation. This was J.T.'s second arrest during a fourteenth month period. J.T. was first arrested on September 21, 2010, and was released in March or April 2011. J.T. was arrested again in September 2011 and testified that if his probation was revoked, the punishment range was between two and twenty years of imprisonment. When asked what his conditions of probation were, J.T. stated that he did not know because he never reported to his probation officer.
J.T. confirmed that he has been convicted for "a few" felonies, including possession of a controlled substance—heroin, and for assault causing bodily injury family violence. J.T.'s assault conviction occurred in 2009, and A.P. was the victim. A.P. testified that J.T. had hit her a "couple" of times in the past for getting "out of line," or being "disrespectful." One of those times occurred while A.P. was pregnant with C.T. Despite J.T.'s violence towards her, A.P. testified that J.T. was "extreme[ly]" protective of C.T. and never physically or emotionally harmed him.
J.T. testified that he did drugs in the past, and disapproved of A.P.'s methamphetamine use, stating, "I grew up around drugs all my life. I don't feel like you can be an adequate parent if you do drugs around a child. It's something I feel strong about." J.T. confirmed that he was aware that A.P. smoked marijuana in the home before C.T. was removed, but explained, "Pot is not a drug to me. It's not a hard, serious drug like methamphetamines." J.T. testified that, despite A.P.'s drug "issues," she was a "good mother."
Testimony revealed that no one from the Department met with J.T. until January 2011. Jessica Callaway testified that the Department determined it was inappropriate to conduct a visit between C.T. and J.T. at the jail while he was incarcerated, but informed J.T. that they would resume visitation upon J.T.'s release. J.T. testified that after his release, he chose not to visit C.T., explaining that "it [was in his] best interest to not go see [C.T.] because I probably would have left with my son." Disputed Evidence
The majority of the disputed evidence at trial revolved around the Department's initial goal of relative adoption of C.T. upon his removal. Jessica Callaway's testimony confirmed that the Department's goal of relative adoption was due to A.P.'s prior history with the Department.Appellants argued that the Department never intended to reunite them with C.T. rendering any compliance with their service plans frivolous. The evidence was also disputed about C.T.'s health. Appellants testified that C.T. was healthy and current on his vaccinations, but evidence from the Department showed that subsequent to C.T.'s placement with the Department, C.T. had tubes placed in his ears and began to receive respiratory treatments as a result of his medical condition. Conclusion
Callaway confirmed that she was unaware of any "history" with J.T.
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After viewing the evidence in the light most favorable to the finding, we hold that a reasonable fact finder could form a firm belief or conviction that A.P. engaged in conduct or knowingly placed C.T. with persons who engaged in conduct that endangered C.T.'s physical or emotional well being. See In re J.F.C., 96 S.W.3d at 266. A.P.'s drug addiction, prior convictions, and history of arrests illustrate a course of conduct that endangers C.T.'s physical and emotional well being. See In re S.D., 980 S.W.2d at 763. Therefore, we hold that the evidence is legally sufficient to support termination of A.P.'s parental rights under subsection (E).
After reviewing the entire record and considering the disputed evidence, we hold that a fact finder could reasonably have formed a firm belief or conviction about the truth of the Department's allegations. See In re J.F.C., 96 S.W.3d at 266. The disputed evidence at trial did not call into question A.P.'s addiction, prior convictions, history of arrests, and lack of ability to care for her three previous children. Therefore, we hold that the evidence is factually sufficient to support termination of A.P.'s parental rights under subsection (E). Accordingly, A.P.'s third issue is overruled. Because we have held that the evidence is legally and factually sufficient to terminate A.P.'s parental rights pursuant to Section 161.001(1)(E), we need not address A.P.'s first, second, fourth, and fifth issues relating to the sufficiency of the evidence for termination under subsections (D), (M), and (O). See TEX. R. APP. P. 47.1.; In re C.C., No. 12-09-00429-CV, 2011 WL 198595, at *6 n.2 (Tex. App.—Tyler Jan. 19, 2011, no pet.) (mem. op.) (when evidence is sufficient to support termination under one ground, appellate court need not address sufficiency challenges to other grounds for termination in Section 161.001(1)).
Moreover, after viewing the evidence in the light most favorable to the finding, we hold that a reasonable fact finder could form a firm belief or conviction that J.T. engaged in conduct or knowingly placed C.T. with persons who engaged in conduct that endangered C.T.'s physical or emotional well being. See In re J.F.C., 96 S.W.3d at 266. J.T.'s prior criminal history, prior instances of domestic violence against A.P., frequent incarcerations, knowledge of A.P.'s illicit drug use while caring for C.T., past drug use, and attitude towards marijuana illustrate a course of conduct that endangers C.T.'s physical and emotional well being. See In re S.D., 980 S.W.2d at 763. Therefore, we hold that the evidence is legally sufficient to support termination of J.T.'s parental rights under subsection (E).
After reviewing the entire record and considering the disputed evidence, we hold that a fact finder could reasonably have formed a firm belief or conviction about the truth of the Department's allegations. See In re J.F.C., 96 S.W.3d at 266. We have held that the disputed evidence did not call into question A.P.'s course of conduct. We reach the same conclusion as to J.T. J.T.'s criminal history, acts of domestic violence, drug history, and noncompliance with the conditions of his probation constitute conduct subjecting C.T. to a life of uncertainty and instability. See In reM.R.J.M., 280 S.W.3d at 503. Therefore, we hold that the evidence is factually sufficient to support termination of J.T.'s parental rights under subsection (E). J.T.'s third issue is overruled. Because we have held that the evidence is legally and factually sufficient to terminate J.T.'s parental rights pursuant to Section 161.001(1)(E), we need not address J.T.'s first, second, and fourth issues relating to the sufficiency of the evidence for termination under subsections (D) and (N). See TEX. R. APP. P. 47.1.; In re C.C., 2011 WL 198595, at *6 n.2.
BEST INTEREST OF THE CHILD
In her sixth issue, A.P. contends the evidence is legally and factually insufficient to show that termination is in C.T.'s best interest. J.T. raises the same challenge in his fifth issue. Applicable Law
Parental rights may not be terminated merely because a child might be better off living elsewhere. In re C.R., 263 S.W.3d at 375. Furthermore, a parent's imprisonment does not automatically establish that termination is in the child's best interest. In re S.R.L., 243 S.W.3d 232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The party seeking termination must prove by clear and convincing evidence that termination of a parent's rights to his or her child is in the child's best interest. See TEX. FAM. CODE ANN. § 161.001(2). The prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest. See TEX. FAM. CODE ANN. § 263.307(a) (West 2008). But there is also a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 12, 116 (Tex. 2006).
The courts consider a number of factors to determine the best interest of the child. Among those factors are (1) the child's age and physical vulnerabilities; (2) the child's physical needs now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the plans for the child by these individuals or by the agency seeking custody; (5) the stability of the home or proposed placement; (6) whether there is a history of abusive or assaultive conduct by the child's family or others; (7) whether there is a history of substance abuse by the child's family or others with access to the child's home; (8) 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; (9) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; and (10) whether an adequate support system consisting of an extended family and friends is available to the child. See TEX. FAM. CODE ANN. § 263.307(b) (West 2008); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Salas v. Tex. Dep't Protective & Regulatory Servs., 71 S.W.3d 783, 791 (Tex. App.—El Paso 2002, no pet.).
The above list does not include all of the factors found in Section 263.307, nor does it include all of the factors enunciated in Holley. See TEX. FAM. CODE ANN. § 263.307(b); Holley, 544 S.W.2d at 371-72. Moreover, the Department need not prove all of the statutory or Holley factors to determine the best interest of the child. See In re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Holley, 544 S.W.2d at 372. Evidence supporting termination of parental rights is also probative in determining whether termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 28-29. Analysis
By the time of trial, C.T. was two years old. Appellants testified that when C.T. was in their care, he was healthy. A.P. introduced photos of C.T. with both appellants, in which everyone is smiling and appears to be happy. The Department frequently referred to an image purporting to depict an unhappy and sick C.T. But that photograph was taken after C.T. was placed in the Department's care and was not offered into evidence. Thus, that photograph is not in the appellate record.
The Department offered evidence that once C.T. was placed in care, it was discovered that he suffered from a respiratory infection for which breathing treatments were necessary and ear infections that required placement of tubes inside C.T.'s ears. Amanda Baxter, C.T.'s foster mother, testified that C.T. receives breathing treatments to combat his "RSV." Baxter confirmed that she and her husband want to adopt C.T., but testified that even if they could not adopt C.T., they would do whatever they could for him. Other testimony revealed that in the earlier phases of the case, C.T. suffered from "night terrors." Appellants attempted to show that the Baxters were not suitable placements for C.T. because they did not take C.T. to the emergency room during a violent night terror episode during which C.T. could not be awakened. Baxter acknowledged this incident and explained that C.T. was taken to a pediatrician the next morning and prescribed medication for acid reflux. Baxter testified that since C.T. has been taking the medication, he has not had any more night terrors.
Dawn Lloyd, a CASA volunteer, testified that C.T.'s physical and emotional state has greatly improved since the beginning of the case. Lloyd described C.T. as being very bonded with his foster parents, that he was "crazy" about them, and that the foster parents loved C.T. Lloyd also testified that she observed one visit between A.P. and C.T. and did not notice anything during the visit that would have caused her concern.
Ronnie Bannister, J.T.'s half brother, testified that C.T. was healthy when he saw him each time he went with J.T. to take C.T. to the pediatrician. Bannister described J.T. as a "good father," but agreed that a child should not be in a home environment where drugs are actively used. Bannister confirmed that the Department contacted him about placing C.T. with him, but he explained that his family could not take on the responsibility of caring for C.T.
A.P. testified that she missed only two visits with C.T. However, Jessica Callaway, C.T.'s caseworker, testified that A.P. had access to a minimum of fifty-six visits, but only attended twenty-six. A.P. was unemployed and lived with her mother, who was on parole for the felony offense of driving while intoxicated.
Dr. Robert Sperry, a licensed psychologist, interviewed A.P. on September 27, 2011. Sperry testified that A.P. told him that her relationship with J.T. began in 2006 and described their relationship as "very abusive." A.P. related that J.T.'s behavior had gotten better, but that the most recent incident of abuse occurred approximately five months prior to A.P.'s appointment with Sperry.
The evidence at trial also showed that the Department created a service plan at the beginning of the case that included counseling services for Appellants. A.P. began attending counseling sessions, but explained that she stopped because she did not think they were helpful. A.P. testified that she requested a new counselor, but one was never provided. Although J.T. was incarcerated throughout the majority of the case, he failed, upon his release, to complete any of the services requested by the Department. When asked what he would propose to do for C.T. if he was sentenced to twenty years of imprisonment for his felony offense, J.T. replied, "Honestly, I don't know ma'am. Honestly, I don't know."
Viewing this evidence, along with the evidence discussed in our review of the termination finding, in the light most favorable to the finding, we hold that the fact finder could reasonably have formed a firm conviction that termination of Appellants' parental rights was in C.T.'s best interest. See In re J.F.C., 96 S.W.3d at 266. Viewing the record as a whole, we also hold that the fact finder could reasonably have formed a firm conviction that termination of Appellants' parental rights was in C.T.'s best interest. See id Furthermore, we conclude that the disputed evidence is not so significant to conclude that the fact finder's decision was unreasonable. See id. Therefore, we hold that the evidence of C.T.'s best interest is legally and factually sufficient to support the jury's best interest finding. We overrule A.P.'s sixth issue and J.T.'s fifth issue.
JURY CHARGE: GENERAL VERDICT FORM
In her eighth issue, A.P. contends the trial court reversibly erred by submitting the termination grounds and best interest issue to the jury in a general verdict form. J.T. makes the same argument in his seventh issue. Applicable Law
We review the jury charge for an abuse of discretion. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). The trial court abuses its discretion only when it acts without reference to any guiding principles. Id. In all jury cases, the trial court shall, whenever feasible, submit the cause upon broad form questions. See TEX. R. CIV. P. 277; E.B., 802 S.W.2d at 649. In E.B., the trial court submitted the following questions to the jury:
Question No. 1Id. at 648. The trial court also included a description of the rights, privileges, duties, and powers of a parent, and definitions for "termination," "clear and convincing evidence," and "endanger." Id. at 648. The jury was given a list of some of the Holley factors to consider in determining the best interest of the child. Id. The Texas Supreme Court explained that the controlling issue was whether the parent-child relationship between the mother and each of her two children should be terminated, not what specific ground or grounds the jury relied upon to affirmatively answer the questions posed. See id. at 649. Thus, the court concluded that the broad form question did not amount to an abuse of discretion by the trial court. See id.Analysis
Should the parent-child relationship between [Respondent E.B.] and the child [E.B.] be terminated?
Answer: "Yes" or "No"
Answer: _____
Question No. 2
Should the parent-child relationship between [Respondent E.B.] and the child [B.B.] be terminated?
Answer: "Yes" or "No"
Answer: _____
Here, as in E.B., the jury charge tracked the statutory language of the family code in the grounds given to the jury as a possible basis for termination of A.P.'s and J.T.'s parental rights. SeeE.B., 802 S.W.2d at 648; see also TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (M), (N), (O) (West Supp. 2012). The charge instructed the jury that it must also be proven by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child and listed some of the factors to consider in determining the best interest of the child. See E.B., 802 S.W.2d at 648 (citing Holley, 544 S.W.2d at 371-72); see also TEX. FAM. CODE ANN. § 161.001(2). Then, the trial court presented the following controlling questions to the jury by broad form submission:
Question No. 1: Termination of the Parental Rights of [J.T.]
Should the parent-child relationship between [J.T.] and the child [C.T.] be terminated?
Answer "Yes" or "No".
Question No. 2: Termination of the Parental Rights of [A.P.]
Should the parent-child relationship between [A.P.] and the child [C.T.] be terminated?
Answer "Yes" or "No".
Appellants cite In re B.L.D., 56 S.W.3d 203, 218-19 (Tex. App.—Waco 2001), rev'd on other grounds, 113 S.W.3d 340 (Tex. 2003), and Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378, 387-90 (Tex. 2000), to support their contention that a broad form jury question was not feasible in the current case. But because the jury charge approved in E.B. is almost identical to that given in this case and E.B. has not been overruled, we conclude that E.B. is binding on this court. See In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.) (court bound by E.B.); In re K.S., 76 S.W.3d 36, 49 (Tex. App.—Amarillo 2002, no pet.) (court bound to follow E.B. unless overruled or vitiated). Therefore, the trial court did not abuse its discretion in overruling Appellants' objections to the jury charge. See E.B., 802 S.W.2d at 649. Accordingly, we overrule A.P.'s eighth issue and J.T.'s seventh issue.
DISPOSITION
Having overruled A.P.'s third, sixth, seventh, and eighth issues and J.T.'s third, fifth, sixth, and seventh issues, and having concluded that we need not address their remaining issues, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
NO. 12-11-00384-CV
IN THE INTEREST OF C.T., A CHILD
Appeal from the County Court at Law
of Van Zandt County, Texas. (Tr.Ct.No. 10-00728)
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.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.