Opinion
NO. 01-16-00996-CV
06-01-2017
IN THE INTEREST OF G.K.G.A., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2013-02795J
MEMORANDUM OPINION
R.A., father, appeals the termination of his parental rights to G.K.G.A., challenging the legal and factual sufficiency of the evidence supporting the trial court's predicate finding that he constructively abandoned the child. We affirm.
BACKGROUND
The child was born in El Paso in December 2006. Sometime before the fall of 2012, her family relocated to Harris County. The child came into the Department's custody in May 2013, after it had received reports of three separate incidents of violence in her family.
The first occurred in October 2012. While driving, her father punched her mother in the face several times and threatened to beat her again at home. When the father stopped the car in the apartment complex's parking lot, the mother tried to run away from the father, but he tackled her to the ground. As a result of this altercation, the father was criminally charged with assault against a family member. Pursuant to a plea agreement, the father pleaded guilty to the charge and received two years of deferred adjudication community supervision.
The other two incidents occurred in January and May 2013, respectively, and involved the child's half-brother, who was 12 years old at that time. In the January incident, the half-brother complained about pain during the school day and was taken to the nurse's office. The nurse examined the half-brother and found bruising on his face and back. He disclosed to school officials that his stepfather, who is the father in this appeal, had "lashed out" at him for having taken an electronic reading device to school.
In the May incident, the half-brother was found carrying a large pocket knife to school. When school officials discovered that he was carrying a knife, the half-brother told them that his mother told him to take the knife to school and "hide it." The school officials contacted the mother and told her about the situation. She was overheard cursing at the half-brother, telling him to "shut the hell up," and not to say another word. When the school officials asked the mother to explain, she responded that half-brother was "a liar." In the mother's absence, the school officials further discussed the incident with the half-brother. He expressed that his "home life was bad" and said he did not care what happened to him anymore. He also informed them that a similar incident occurred when the family was living in El Paso and he was almost taken from his family.
Within a few days of the May incident, the Department petitioned for protection for the child in this case and her two half-siblings. The trial court ordered the Department to serve as managing conservator for the children. The three children were placed in the care of the half-siblings' paternal aunt and her husband in El Paso. The trial court prohibited the father from having contact with the children. The no-contact order remained in place from May 2013 until July 2014.
The father was not served and did not appear at the initial hearing. The Department eventually located him in the county jail, where he was detained on a charge of interfering with a public servant. That charge was later dismissed. The Department served the father with the petition on June 18th.
By August 2014, the mother's parental rights had been terminated. Because the father's detention had prevented him from undertaking the services ordered by the trial court, the Department and the father entered into a mediated settlement agreement that gave him additional time to work on them. The father signed the MSA on August 13.
The MSA provided that the father would have visitation and access to the child "as arranged by DFPS and previously ordered." This language references the trial court's July 2014 temporary order that lifted the no-contact order. The case supervisor testified that the Department had made visitation arrangements at the mediation that the father would contact the Department whenever he was going to El Paso and they would "set it up . . . with the [case]worker there."
The evidence is disputed concerning the father's involvement with the child from July 2014 until the case was tried in October 2016. The caseworker supervisor testified that. to her knowledge, the father made no effort to arrange any visits with the child after the no-contact order was lifted. The aunt likewise testified that the father never contacted her for assistance in setting up a face-to-face visit with the child, despite their prior acquaintance and his possession of her telephone number.
Beginning in August 2014, on a couple of occasions, the father and the child had calls lasting about 45 minutes. Other times, however, he called when the child was busy with activities or she would refuse to speak to him. The aunt contacted the Department for guidance in handling calls when the child did not want to talk to the father. After speaking with the caseworker, the aunt told the father that he should contact the Department to arrange for contact with the child.
The case supervisor testified that the father had a pattern of sporadic contact with the Department. The case supervisor testified that the father tried to call the child for about 3 months and then stopped trying to call her in approximately November 2014. He did not try to call her again until late May or early June 2015. At that time, the father asked the Department to help him complete the court-ordered services, including anger management counseling. He continued to attempt to call the child from time to time. He did not make any effort with either the Department or with the aunt to have a face-to-face visit with the child. Not long after June 15, 2015, he stopped calling the child and the Department lost contact with him again. The courtesy caseworker in El Paso has no records of any visits with the child.
In contrast to the testimony from the caseworker, the father testified that he attempted to contact the caseworker "almost on a daily basis" to arrange to visit with the child. He also testified that he left voice mails and texts with the caseworker, but that he was ignored and received no response. He explained that he did not try to show up at the aunt's door for a visit without the Department's permission because he was told he would be arrested if he did so. The father acknowledged that he "realiz[ed] that two years without seeing a father is a long time for a child this age." He testified, "I'm asking to see my daughter. I'm asking, I guess, for the rights that I should have had in the beginning that I really didn't realize I had." He described the caseworker's testimony as "a lie actually," stating that the times he had he had contacted her were "too many to count."
The aunt testified that she had done nothing to stop a visit from G's father and that she doesn't say negative things about anything going on with the case because she wants to "try to continue a very positive environment."
The child was nine years old by the time of the trial. Beginning soon after her placement with the aunt and uncle, she consistently expressed her desire to be adopted by them to her therapist, caseworkers and the ad litem. She expressed resentment about the father's absence in her life and his inconsistent attention. In March 2016, the child sent a letter to the father telling him that she wanted the aunt and uncle to adopt her and that she would give him one chance to call her, with a deadline of April 7, 2016. In a subsequent letter to the father, she expressed frustration at him for his failure to respond to her March letter and asked him to appear at the next court date: "I wish you would respond! I getting frustrated because you let me talk to you in prison! Please be at this court Date. Please be a mannered man and right man." The father acknowledged having received her letters.
In May 2016, the Department held a family group conference in which the attendees, including the child and the child's guardian ad litem, again discussed visitation arrangements with the father. The case supervisor testified that the attendees "set it up where he would again contact the agency and he could go to El Paso. In fact, we started where he would be able to go to El Paso at least once a month." The father assured the Department that he would be able to visit with the child at least once a month. Nevertheless, there is no Department record showing that the father made any visit.
At this point, the child had gone more than three years seeing the father only at periodic court dates in Houston. According to the therapist and the aunt, the child became very anxious when having to attend court dates or otherwise deal with the issue of her permanency.
After the May family group conference, the child was so uncomfortable that she became physically ill and vomited before returning to El Paso. She was crying when she arrived and sought comfort from her aunt. In June 2016, the child began having regular visits with a therapist.
The child's therapist testified that the child consistently states that she wants to be adopted by the aunt and uncle and remain with her half-siblings, who have already been adopted by them. The child also told the therapist that the only reason she agreed to have email or phone contact with the father was to tell him she wanted to be adopted by the aunt's family.
The father communicated with the therapist concerning family therapy with the child and sought to visit with her during her therapy, but the child refused to see him. The therapist opined that, due to the length of time the father and child had been apart, it would take baby steps to develop the relationship. She explained that she could not force the child to attend therapy with her father against her will without damaging the therapeutic relationship. The therapist concluded it would be best for the court to terminate the father's parental rights.
After the therapist declined to assist the father in arranging a visit with the child, the father filed a motion for visitation. Following a hearing held two weeks before trial, the trial court denied the motion.
DISCUSSION
The father challenges the legal and factual sufficiency of the evidence supporting the trial court's finding he had constructively abandoned the child.
A. Standard of review
In conducting a legal-sufficiency review in a parental-rights-termination case brought by the Department, we look at the entire record to determine whether the evidence, viewed in the light most favorable to the finding, is such that a reasonable factfinder could have formed a firm belief or conviction about the truth of the matter on which the Department had the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d at 266). We also remain mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. In re J.F.C., 96 S.W.3d at 266.
In conducting a factual-sufficiency review in a parental-rights termination case, we determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a factfinder reasonably could have formed a firm conviction or belief about the truth of the matter on which the Department bore the burden of proof. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266-67. "If, in light of 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, then the evidence is factually insufficient." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (quoting In re J.F.C., 96 S.W.3d at 266).
There is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d at 294; see TEX. FAM. CODE ANN. § 153.131(b) (West 2014). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016).
B. Termination based on constructive abandonment
The trial court's judgment terminates the father's parental rights pursuant to section 161.01(b)(1)(N), which requires clear and convincing proof that the parent has constructively abandoned the child as well as a separate finding that termination is in the child's best interest. To support a predicate finding of constructive abandonment, the Department must adduce evidence that (1) the child has been in the permanent or temporary conservatorship of the Department or an authorized agency for not less than six months; (2) the Department or authorized agency has made reasonable efforts to return the child to the parent; (3) the parent has not regularly visited or maintained significant contact with the child; and (4) the parent has demonstrated an inability to provide the child with a safe environment. TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (West Supp. 2016). The father does not dispute that the child has been under the Department's conservatorship for more than six months. We thus consider whether clear and convincing evidence establishes the remaining three prongs to support the trial court's finding of constructive abandonment.
1. The Department made reasonable efforts to return the child to the father.
A family service plan is designed to reunify a parent with a child who has been removed by the Department. Liu v. Dep't of Family & Protective Servs., 273 S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The family service plan, incorporated into the MSA, allowed the father to visit with the child, which he could arrange by contacting the Department.
The Department confirmed that the father performed all of the services required by the MSA. The evidence is contested, however, about whether the father attempted to maintain contact with the child and whether the Department cooperated with the father's attempts to visit her.
The father testified that he called the Department "almost on a daily basis" and left messages for the caseworker in order to arrange a visit with the child, but the caseworker did not return his calls. The case supervisor, on the other hand, testified that the parties at the mediation discussed with the father how he could make arrangements to visit the child when he was in El Paso. She also testified that the attendees at the May conference discussed visitation again with the father and explained that the father was informed that he could contact the Department to arrange monthly visits with the child. He assured the attendees he would follow through with monthly visits. Nevertheless, the case supervisor had no knowledge that the father had made any attempt to arrange a visit with the child, and no Department record showed any attempt.
The father did not provide any details concerning the circumstances surrounding his requests. He generally complained that the aunt told him to arrange the visits through the Department and the Department told him to arrange them through the aunt. The case supervisor, however, said that the father did not attempt to contact her to help resolve any communication problem he had with the caseworker. And, like the Department, the aunt testified that the father did not contact her for help in arranging a visit with the child. Despite the father's complaints concerning the Department's purported lack of cooperation in that regard, he had no complaints concerning the Department's assistance in his efforts to complete the court-ordered services. Nor did the father ask the trial court to intervene by ordering the Department to comply with the MSA and help him arrange for a visit with the chld until the month before trial.
The Department's two meetings with the father to inform him how to make arrangements to visit the child satisfy the reasonable effort requirement. "In reviewing the sufficiency of the evidence supporting termination under section 161.001(1)(N), the issue is whether the Department made reasonable efforts, not ideal efforts." In re N.K.T., No. 01-16-00439-CV, 2016 WL 6277415, at *8 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (quoting In re S.R., No. 12-14-00238-CV, 2015 WL 302493, at *2 (Tex. App.—Tyler Jan. 23, 2105, pet. denied)); see also In re M.V.G., 440 S.W.3d 54, 61 (Tex. App.—Waco 2010, no pet.) (recognizing, in conducting evidentiary sufficiency analysis of reasonable-efforts requirement, that "there probably are things the Department could have done differently [when implementing mother's service plan], but the issue is whether the Department made 'reasonable efforts'"). The parties dispute whether the Department assisted the father in implementing the visitation plan, but the evidence on this issue is such that the trial court could reasonably have resolved it in favor of finding credible the Department's evidence that the father had not made contact despite having been told how to arrange for a visit rather than the father's testimony that the Department had thwarted his efforts. The evidence is legally and factually sufficient to support the trial court's finding that the Department made reasonable efforts to return the child to the father.
2. The father failed to regularly visit or maintain significant contact with the child
The evidence proffered by the Department shows that the father did not attempt to arrange a face-to-face visit with the child for nearly the entire two years the visitation terms were in place. The father had sporadic telephone contact with the child, but he would not call or make contact with her for months after he encountered resistance from her, demonstrating a lack of perseverance in attempting to reform a bond with her. At the same time, the record shows that much of the child's resentment of her father was due to his inconsistent contact.
Aside from the telephone calls, the child had no other contact with the father. He received but did not respond to her March 2016 letter or call her. Other than his testimony, the father's motion for visitation, filed in the last month of the two-year period, is the only affirmative effort to visit the child that is documented in the record.
The trial court reasonably could have resolved the conflicts in the evidence and found that the father failed to regularly visit or maintain significant contact with the child. See In re B.S.T., 977 S.W.2d 481, 486 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (holding evidence was sufficient to support termination under subsection N when, after release from prison, father was advised of availability of visitation but only visited with children twice and made no further effort to be involved with them, and caseworker testified that Department made reasonable efforts to return children to parents), overruled in part on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002).
3. The father has demonstrated an inability to provide the child with a safe environment.
The record contains ample evidence of the father's abusive behavior toward family members, including a conviction for assault-family violence arising out of an incident in which he punched the child's mother, and the incident in which he beat the child's 12-year-old half-brother, which triggered the Department taking custody of the children. The father admits that the child was with the family when he allegedly assaulted the mother, but, despite his guilty plea to the charge, he claims she did not witness any violence "because it never happened." According to the father's testimony, the mother came home that day "already assaulted" by a former co-worker and that he signed a guilty plea for deferred adjudication so he could leave the jail and find out why the Department had taken custody of the children.
The case supervisor testified that the child was a witness to the father's violence in the home. The father points out that his steady employment and his successful completion of the deferred adjudication community supervision shows that he is able to provide a safe home. The father's denial that he had any problem with physically abusing family members, however, is contradicted by the Department records in evidence, which contain witness statements describing the incidents and include details concerning the victims' bruising following those incidents. The evidence of father's history of abusive behavior toward the child's mother and brother and his failure to make and maintain significant contact with the child. together amount to legally and factually sufficient evidence supporting the trial court's finding that the father cannot provide the child with a physically and emotionally safe environment.
We hold that the evidence, viewed in the light most favorable to the trial court's finding of abandonment, is such that a reasonable factfinder could have formed a firm belief or conviction that the father constructively abandoned the child. We further hold that considering all of the evidence in the record, both supporting and contradicting the constructive abandonment finding, the trial court reasonably could have formed a firm belief or conviction that the father constructively abandoned the child.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Justices Higley, Bland, and Brown.