Summary
affirming termination of the parent-child relationship between the appellant and four of her other children
Summary of this case from In re G.D.P.Opinion
NO. 09-11-00305-CV
07-12-2012
IN THE INTEREST OF J.B., J.L., J.P. AND T.P.
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV0902305
MEMORANDUM OPINION
M.L. and A.P. appeal the trial court's judgment terminating their parental rights concerning their children, T.P. and J.P. Appellant M.L. also challenges the trial court's judgment terminating her parental rights concerning her children, J.B. and J.L.
Before parental rights may be terminated, the petitioner must establish by clear and convincing evidence that the parent has committed one or more of the acts or omissions set out in section 161.001(1) of the Family Code, and that termination is in the best interest of the child. "'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." The trial court found that termination was in the children's best interest, and that M.L. and A.P. knowingly placed or knowingly allowed their respective children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; engaged in conduct or knowingly placed their respective children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; and failed to comply with the provisions of a court order.
See Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2011); see also In re J.P.B., 180 S.W.3d 570, 572 (Tex. 2005).
Tex. Fam. Code Ann. § 101.007 (West 2008).
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O), (2).
The Texas Department of Family and Protective Services became involved after H.P., A.P.'s ten-year-old daughter from a previous relationship and a child not part of this suit, ran away from home with a bag of food and appeared to be malnourished. A.P. and M.L. signed a safety plan stating H.P. would be taken to the emergency room at Cleveland Regional Hospital. The next day it was discovered that neither A.P. nor M.L. had taken H.P. to the hospital. H.P. was ultimately treated that day at the emergency room. The doctor suspected child abuse and malnutrition. The child weighed only forty-seven pounds, had bruises on her body in different phases of healing, and had marks on her arms. Photographs of H.P. at the time of removal were admitted into evidence. Her collarbone, pelvic bone, arm bones, and ribs protruded. Her cheeks were sunken and her stomach was extended.
The record shows that H.P. initially reported that she had been tied up by her biological mother but later stated she lied about who tied her up. She implicated M.L. as the person who tied her with black "zip ties[.]" That evening, the Department removed J.B., J.L., T.P., and J.P. out of concern that the four children had been exposed to the abuse and neglect of H.P. At the time of removal, the four children did not show any indication of physical injury.
At the hospital, A.P. denied that he or M.L. caused H.P.'s injuries and stated that he remembered that H.P. had told him that H.P.'s mother had tied her up. He told the investigator at the hospital that H.P. had only been home for three weeks. At trial, he testified that approximately two-and-a-half months prior to the removal of the children, a mutual friend let H.P.'s mother take H.P., and that H.P. had been back at A.P.'s and M.L.'s home only five or six days when the Department became involved. A.P. testified that when H.P. returned she looked "in poor condition," but he did not seek medical treatment for H.P. until told to do so. He admitted that the other four children saw H.P. in poor condition and probably saw her bruises and the marks on her wrist. A.P. admitted at trial that the injuries to H.P.'s arm were "kind of obvious" and "were scarring." When asked if he regretted not calling 911 or Child Protective Services when H.P. was returned to him, he responded, "Looking now, yes, I wish I would've done something[.]" A.P. admitted punishing the children with a belt. He explained that at ten years old H.P. would wet the bed. H.P. would have to wear a diaper for the entire day as punishment for wetting the bed.
M.L. denied injuring H.P. but admitted that she had hit H.P. with a belt for wetting the bed and would use a belt in punishing her on other occasions. When shown a picture of H.P. taken at the hospital, M.L. agreed H.P. looked sick and malnourished. H.P.'s mother, who was interviewed in jail and had a criminal record, stated she had not seen H.P. for three years.
Law enforcement took pictures of the residence of A.P. and M.L. around the time of the children's removal. Cut zip ties were found in a garbage bag at the residence. Exercise equipment was found in H.P.'s bedroom. The residence was dirty, "had a stench from the dogs[,]" and dogs were caged in another bedroom. A Department caseworker testified at trial that if J.B., J.L., T.P., and J.P. had been exposed to the medical neglect of H.P., the exposure would emotionally damage the four children. After J.L. had been placed in foster care, he reported to the Department caseworker that he had seen M.L. tie H.P. up.
To prove endangerment under section 161.001(1)(E), the Department had to prove by clear and convincing evidence that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. Under subsection (E), the relevant inquiry would be whether clear and convincing evidence exists that the endangerment of the children's physical or emotional well-being was the direct result of that parent's conduct, including acts, omissions, or failures to act. "Endanger" means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment. To "endanger" includes exposure to loss or injury; surroundings can endanger the well-being of a child without the child's suffering actual physical injury. Endangering conduct is not limited to actions directed towards the child. The Texas Supreme Court has held that if the evidence "shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under Section 161.001(E) is supportable."
Tex. Fam. Code Ann. § 161.001(1)(E).
Seeid.; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Inre M.C., 917 S.W.2d 268, 269 (Tex. 1996) (citing Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
Inre L.C., 145 S.W.3d 790, 796 (Tex. App.—Texarkana 2004, no pet.).
Inre J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Considering all the evidence in the light most favorable to the finding, the trial court could reasonably form a firm belief or conviction that M.L. was directly responsible for H.P.'s condition, that the children were exposed to H.P.'s ongoing injuries, that A.P. and M.L. neglected to seek medical attention for H.P., and that the acts or omissions endangered the physical or emotional well-being of J.B., J.L., T.P., and J.P. The trial court could reasonably believe H.P.'s and J.L.'s accounts of M.L.'s tying H.P. up. The trial court could reasonably determine that A.P. knew H.P. was in bad health, which the other children observed, but neglected to seek medical help for H.P. The evidence is legally and factually sufficient to support the finding that A.P. and M.L. endangered the physical and emotional well-being of J.B., J.L., T.P., and J.P. Issue two is overruled. As only one predicate finding under section 161.001(1) is necessary to support a termination order, we need not address A.P.'s and M.L.'s challenges to the evidence supporting termination under subsections (D) and (O).
Inre A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In issue four, appellants maintain there is no evidence or insufficient evidence to support the trial court's finding that termination of appellant's parental rights is in the best interest of the children. Section 263.307(a) of the Family Code provides that "prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." There is also a strong presumption that keeping a child with a parent is in the child's best interest. The Texas Supreme Court has set forth a non-exhaustive list of several factors for consideration: (1) the desires of the child; (2) the emotional and physical needs of the child 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) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. While no one factor is controlling, analysis of a single factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child.
Tex. Fam. Code Ann. § 263.307(a) (West 2008).
Inre R.R., 209 S.W.3d 112, 116 (Tex. 2006).
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Inre A.P., 184 S.W.3d 410, 414-15 (Tex. App.—Dallas 2006, no pet.) (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
The trial court heard evidence that M.L. abused H.P. and that the other four children were exposed to H.P.'s injuries and malnutrition. The trial court heard evidence that A.P. and M.L. admitted that H.P. was in poor health but only sought medical treatment for her after the Department insisted. A.P. and M.L.'s failure to seek medical assistance for H.P. raised an issue regarding their ability to care for J.B., J.L., T.P., and J.P. The trial court could reasonably form a firm belief or conviction that termination of A.P.'s parental rights as to T.P. and J.P., and M.L.'s parental rights as to J.B., J.L., T.P., and J.P., was in the best interest of the children. The evidence is legally and factually sufficient to support the trial court's finding. Appellants' fourth issue is overruled.
In issue five, appellants complain about their trial counsel. The statutory right to counsel in parental-rights termination cases is the right to effective assistance by counsel. In determining whether counsel provided effective assistance, we apply the standard set out in Strickland v. Washington.To determine if trial counsel rendered ineffective assistance, we must first determine whether counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Appellants allege that their counsel did not raise appropriate defenses, failed to present witnesses, failed to cross-examine more witnesses, and agreed to admit many of the State's exhibits that contained hearsay and hearsay within hearsay.
In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).
Id. at 544-45 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
SeeStrickland, 466 U.S. at 687-88, 694.
Considering all of the circumstances surrounding this case, we focus on whether counsel performed in a '"reasonably effective"' manner. We must give great deference to counsel's performance and indulge '"a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,"' including the possibility that counsel's actions are strategic. It is only when '"the conduct was so outrageous that no competent attorney would have engaged in it"' that the challenged conduct will constitute ineffective assistance, a conclusion we do not make here. Furthermore, on this record, we are not convinced that the result of the proceeding would have been different but for counsel's performance. We overrule appellants' fifth issue. The trial court's judgment is affirmed.
Inre M.S., 115 S.W.3d at 545 (quoting Strickland, 466 U.S. at 687).
Id. (quoting Strickland, 466 U.S. at 689).
Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
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AFFIRMED.
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DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.