Opinion
No. 05-06-01552-CV
Opinion Filed August 7, 2007.
On Appeal from the 305th District Court Dallas County, Texas, Trial Court Cause No. 05-00525-X.
Before Justices WRIGHT, RICHTER, and LANG.
MEMORANDUM OPINION
This is an accelerated appeal from a judgment terminating the parent-child relationship between Mother and her three children M.C., K.C., and R.C., Jr. The trial court found that Mother knowingly placed and allowed the children to remain in conditions or surroundings that endangered their physical and emotional well-being and knowingly placed them with persons who engaged in conduct endangering their physical and emotional well-being. It further found termination was in their best interest. In a single issue, Mother contends the evidence is factually insufficient to establish by clear and convincing evidence that termination was in the children's best interest. Specifically, Mother asserts there was no evidence that continued, supervised contact with her was harmful to the children, and to the contrary, the evidence showed separation from the parents traumatized the children. We affirm the trial court's judgment.
M.C. was born in 1997, K.C. in 1999, and R.C., Jr. in 2002.
Background
The Dallas County Child Protective Service Unit (CPS) took M.C., K.C., and R.C. into care on April 14, 2005 after receiving a referral in February 2005 alleging that Mother and her boyfriend were smoking methamphetamines around the children, manufacturing drugs in the home, and that Mother abused cocaine while pregnant with R.C. In March 2005, Dana Scherer, an investigative caseworker for CPS, interviewed M.C. and K.C. at school. M.C. told her she saw her Mother smoking potpourri out of a glass pipe, which Dana believed to be a crack pipe. M.C. also told her she often saw her father hit her mother, the police had been called to her home on many occasions, and she was scared when her parents fought.
Mother's boyfriend is not the father of the three children.
Another referral to CPS came from Father's probation officer who said Father was violating the terms of his probation by having contact with Mother. On April 13, 2005, Dana made an unannounced visit and found the children in his possession. During this visit, he provided Dana with an extensive family history. He stated Mother had a long history of cocaine and methamphetamine addiction and was recently diagnosed as bipolar but refused to take her medication. He admitted there was a history of domestic violence, and M.C. told the truth when she said she often saw her parents fighting.
On August 22, 2005, the Texas Department of Family and Protective Services filed a petition for termination of parental rights for all three children. The Department alleged each parent (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being and (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being. Tex. Fam. Code Ann. § 161.001(1)(D), (1)(E) (Vernon Supp. 2006). The Department also alleged termination of parental rights was in the children's best interest. Id. § 161.001(2).
On October 9, 2006, the trial court held a hearing on Mother's request to place the children with their maternal grandfather. The trial court denied the request and proceeded with a bench trial on the Department's request for termination. The parties agreed the evidence from the hearing would be incorporated into the trial. At the conclusion of the trial, the Department offered evidence of the Father's affidavits of relinquishment of parental rights to all three children pursuant to Texas Family Code section 161.103. Tex. Fam. Code Ann. § 161.103 (Vernon Supp. 2006). The trial court then entered a decree terminating Mother's parental rights on October 27, 2006. Mother timely filed a notice of appeal and her points on appeal as required by Texas Family Code section 263.405(b). Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006).
Burden of Proof in Termination Proceedings
In proceedings to terminate the parent-child relationship under section 161.001 of the Texas Family Code, the Department must establish one or more of the acts or omissions enumerated under subsection (1) of the statute and must also prove termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001; In re B.L.M., 114 S.W.3d 641, 644 (Tex.App.-Fort Worth 2003, no pet.). Both elements must be established; therefore, termination may not be based solely on the best interest of the child as determined by the trier of fact. In re B.L.M., 114 S.W.3d at 644. Because of the elevated status of parental rights, the quantum of proof required in a termination proceeding is elevated from preponderance of the evidence to clear and convincing evidence. Tex. Fam. Code Ann. § 161.001. Clear and convincing evidence is "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 (Vernon 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard in criminal proceedings. In re B.L.M., 114 S.W.3d at 644. While the proof must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Id.
Here, Mother does not challenge the finding under section 161.001(1); therefore, we only address the second prong of whether termination was in the children's best interest.
Standard of Review and Applicable Law
The higher burden of proof in termination cases alters the appellate standard of factual sufficiency review. In re C.H., 89 S.W.3d at 25. In a factual sufficiency review, the inquiry must be whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the allegations. Castaneda v. Tex. Dep't of Protective Regulatory Servs., 148 S.W.3d 509, 523 (Tex.App.-El Paso 2004, pet. denied). A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved disputed evidence in light of its finding. Id.
While we do not view the evidence in the light most favorable to the challenged finding, our review must maintain the respective constitutional roles of factfinders. Id. 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 the factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
The Texas Supreme Court has recognized several factors to consider in determining whether termination is in a child's best interest. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). These include: (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 those 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 the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Id.
This list of factors is not exhaustive, and no single consideration is controlling. Id.; In re J.R.K., 104 S.W.3d 341, 344 (Tex.App.-Dallas 2003, no pet.). Likewise, a factfinder is not required to consider all of the listed factors. Holley, 544 S.W.2d at 372.
Application of Significant Holley Factors
After reviewing the record and considering the relevant Holley factors, we conclude the following evidence establishes by clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. Thus, the evidence is factually sufficient to support the trial court's judgment.
1. Desires of the Children
The evidence is conflicting on whether the children had any attachment to Mother. For example, after the children were removed from the home and placed into protective custody, CPS arranged a meeting between Mother and the children. They did not run to her or acknowledge her. Instead, Mother had to ask them to give her a hug. On another occasion when the parents were late to a scheduled visit, the children were upset, and when Mother later showed up, they were excited to see her.
Dana Sherer, a supervisor with CPS who was an investigative caseworker for the family, testified that although she feels the children love their mother, she could not say if they wanted to go home to her. She stated "[t]hey did not mention that to me. That was not a statement that came out of their mouth." Cf. In re D.M., 58 S.W.3d 801, 815 (Tex.App.-Fort Worth 2001, no pet.) (noting child had close bond with mother and asked to go home with her at the end of most visits). Patricia Berry, another CPS caseworker, was unable to testify with certainty if the children loved and were bonded to Mother. She testified "I think that [R.C.] is not attached. I think that [M.C.] is distant, and I think [K.C.] gets a lot of negative attention from her, and through that means, they are attached."
Patricia further testified she had briefly discussed with them if they wanted to go home. She said the children did not want to go with Mother; however, they wanted to return to their father because he played with them. Although Mother claimed if parental rights were terminated for either parent "it would emotionally destroy all three children," she presented no evidence supporting this claim.
We conclude that although the trial court heard conflicting evidence about the children's desires, it could reasonably have found by clear and convincing evidence that this factor supported termination.
2. Emotional and Physical Danger to Children Now and in the Future; Acts or Omissions of Parent Which May Indicate Existing Parent-Child Relationship is Improper; Appellant's Parenting AbilityThe record is replete with evidence documenting domestic violence between the parents and Mother's extensive drug use. Testimony established domestic violence has been ongoing for at least six years, which means it started when M.C. was three years old. Essentially, all three children have been exposed to violence their entire lives.
Mother told Dana Sherer of at least three physical altercations in which the children were present when Father assaulted her and threatened to kill her. During one specific incident in July 2004 Father threatened to kill Mother and held a knife to her neck. She ran out of the house and left the children inside with Father. Father pleaded guilty to aggravated assault with a deadly weapon and served sixty-five days in jail. He was placed on deferred adjudication; however, his probation was revoked when he subsequently contacted Mother in violation of his probation.
At the time of trial, he was still on four years deferred adjudication. Also, ten days prior to trial he tested positive for methamphetamines.
Mother did not think her violent relationship with Father endangered the physical or emotional well-being of the children because since she could not predict when he was going to be violent, she did not do it knowingly. When she let him back into the home after a protective order expired, she did not see this as endangering the children because again, she could not predict when or if another occurrence would happen.
M.C. told caseworkers she saw domestic violence, and the police had been called out to the home many times, which scared her. She also said her mother would put a knife in the bedroom door so she and her sister could not leave. Mother testified this was actually to keep R.C. from going in their room, but the trial court could reasonably conclude Mother was minimizing her behavior, which indicated a lack of parental ability.
Father testified Mother started using drugs in 1999, specifically crack cocaine. Mother claimed this was a lie, and she started using crack cocaine socially in 2001. She said she later switched to methamphetamine around 2004 or 2005, but she probably used it no more than ten times. There was substantial evidence, however, negating Mother's claims and establishing that her drug use was much more extensive.
Father stated when they first married, they drank alcohol to the point the children were drinking too. He also said Mother would leave for the weekend or longer and go on drug binges and leave the children with him (despite his violent tendencies toward Mother). Father considered her a crackhead and thought she endangered the children with her behavior.
Dana Sherer testified that Mother's regular use of cocaine and marijuana endangered the children. Mother herself even agreed her drug use was not in the best interest of the children. Specifically, she testified "every mistake that I've ever made is coming back to endanger my children."
Besides the domestic violence and drug use, the trial court heard further evidence of acts and omissions on Mother's part that indicated the existing parent-child relationship was improper. Prior to the children's removal, Mother left them with her mother because she was "tired of life in general." After the children were placed in foster care with Mother's aunt, Mother went to see them only one time, which was the first day. She was verbally abusive and gave instructions to the children that were "counterproductive for the home." This led to the eventual breakdown of the placement with the aunt.
After the children were placed in other homes, Patricia Berry supervised most of the family visits. She testified Mother acted inappropriately during the majority of the visits. She would not interact with the children and usually sat on the couch and interacted with other relatives while the kids played around her. During one visit, Father hit R.C. in the chest for throwing something at him, and Mother did nothing about it. She was unable to redirect the children if they were acting up. When she tried, they simply ignored her.
M.C. and K.C. were in one home, and R.C. was in another home.
Based on this evidence, the trial court could reasonably have found by clear and convincing evidence that Mother's past behavior indicated an improper parent-child relationship, and she was unable to prevent future emotional and physical danger to the children. See, e.g., In re D.T., 34 S.W.3d 625, 641-42 (Tex.App.-Fort Worth 2000, pet. denied) (noting evidence of past conduct and behavior can be some evidence termination is in the child's best interest). Likewise, her actions demonstrate a lack of parenting ability. We conclude this factor supports termination.
3. Emotional and Physical Needs of the Children Now and in the Future
The evidence shows the children have extensive emotional and physical needs, which Mother is not in a position to handle. For example, M.C. has anger issues towards her sister, has received therapy for acting like a cat, and sometimes pulls out her hair. She is also on several medications for depression and anger management. Mother was unaware that she had bed wetting problems and claimed M.C. did not have these issues when she lived with her.
Mother has been diagnosed with stage two bipolar disorder; however, she admitted she stopped taking her medicine because she could not control her moods.
At the time of trial, M.C. had discontinued use of her antidepressant medication but remained on anger management medication.
M.C. also wrote a letter stating, "my life as a kid stinks. My sister and my baby brother they get on my nerves sometimes. They're just plain crazy. I'm always having to be mom, having to fix breakfast and lunch. My sister climbs up the stair railing and my brother is running off the walls." When Mother read this letter into evidence, she dismissed the significance of it claiming M.C. wrote letters all the time, and she could provide the court "with ten letters to that one to show that she was actually happy." She said she would give them to her attorney; however, the record is devoid of any such letters.
K.C. has been diagnosed with ADHD and is on medication, and R.C. has been diagnosed as autistic. Mother was unaware of either diagnosis. In fact, she said she was unaware of any problems R.C. was having in foster care, but she was "sure he is" having some. Evidence also established R.C. is developmentally delayed, has outbursts and potty training issues, and suffers from a disorder that causes him to pick at sores and mosquito bites until they bleed. Father testified it was possible the children's behavior issues stemmed from being in a home for six years where there was consistent domestic violence. He also agreed the children had problems before they were removed, but thought they increased dramatically when they went into foster care. He said M.C. acts out, K.C. is withdrawn, and R.C. calls his foster mother "mom." Patricia Berry testified that some of the children's problems could stem from anxiety separation, but she did not believe either parent would be able to meet the children's extensive needs.
Based on the evidence, the trial court could form a reasonable belief by clear and convincing evidence that Mother was incapable of providing the emotional and physical needs of her children. We conclude this factor supports termination.
4. Any Excuse for the Acts or Omissions of the Parent
As noted above, Mother claimed that she did not endanger the children by remaining with Father because she did not know when he would act out; therefore, she did not knowingly place them in danger. She further made excuses for why she waited fifteen months after the children were placed in foster care to start her services. She claimed she could not get anyone to respond to her and give her a service plan. She also did not have the financial resources to do them the first six months because she was trying to get a job and get into school. Dana Sherer, however, testified that Mother told her during a visit she would not be completing services or coming to visit the children.
As part of her service plan, Mother was required to submit to drug testing; however, she repeatedly refused to take drug tests. She even refused a court ordered drug test. She believed her past drug use outweighed anything she was doing now. Thus, even though drug use was an issue, she did not believe proving sobriety was important.
After the children entered foster care, Patricia Berry asked Mother to take a drug test twice every month.
Mother claimed she tried to take a drug test, but the proper 2054 form was not ready for her. Patricia Berry said she was unaware of any time when Mother tried to take the test. She said if a person showed up for a drug test and the form was not present, she would usually receive a phone call and then send the form over. She never received any call regarding Mother.
Although Mother attempted to provide excuses for her actions, the trial court was presented with clear and convincing evidence that her excuses were not compelling enough to weigh against termination. See, e.g., In re L.C., 145 S.W.3d 790, 800 (Tex.App.-Texarkana 2004, no pet.) (noting mother's blame shifting showed a failure to take responsibility for actions or inactions, which would likely inhibit any improvements or growth within the family).
5. Stability of the Home or Proposed Placement
Mother admitted she was not in a proper place in life to take care of her children. However, she believed the children needed their family, and family members were willing to take them. CPS conducted home studies of several family members, but determined none of them were suitable options.
Crystal Cato conducted a home study of the children's maternal grandfather, but determined placement was inappropriate. The first time she visited she determined his living situation was inappropriate, his income was not verified, he minimized his daughter's role in the abuse and neglect of the children, and he minimized the children's needs for continued therapy and medication. He told Crystal he would do nothing the first month they were placed in his care and then after that maybe see about putting them back in therapy.
Of further concern was his wife, the children's grandmother, who has a long documented history of abusing Xanex. She is also on probation for falsifying prescriptions. The couple separated on several occasions but always reconciled. He said he did not believe in divorce, but if she filed for divorce, he would sign the papers. Crystal concluded in her home study "if the children were placed in his home, it is believed that [he] would likely allow his wife to return to the home, as has been his pattern for years. Although [he] is aware of his wife's problems with drug abuse, he has reconciled with her many times." Further, Grandfather testified if he had the children, he felt it would be acceptable for Grandmother to have contact with them in a "group," meaning more than four responsible people in the house.
Crystal later returned for another home study to see if circumstances had changed. Although Grandfather moved into a larger home, Crystal questioned whether he really intended to stay there because it had a padlock on the door similar to a home for sale. It also was not decorated in a typical manner for a single male. He also verified his income; however, Crystal said the adequacy of the home and his income were not as important as his relationship with his wife and how he minimized his daughter's role in the neglect of the children.
For example, Crystal saw a tea set sitting on a table, which indicated that perhaps his wife was still in his life.
Crystal testified he could not protect the children from Mother because he did not believe she had a problem. He minimized her drug use and blamed most of the abuse and neglect on Father. Crystal was also concerned that he was aware of the violence in the household for years, but did not intervene to protect the children from abuse or neglect. She had concerns he would allow unsupervised contact with Mother or return the children to her, which would place the children at risk for further abuse and neglect. He testified "both [parents] can come visit with the kids as many times as they want, as long as they want. As long as they understand they don't live at my house, they can't stay at my house, and they can never live back in my house." The court could have inferred from this statement that he clearly did not believe the parents' influence on the children was problematic since he was willing to allow them to see the children as much as they wanted.
She further had concerns about the children's possible exposure to their grandmother and her drug abuse. Although Grandfather told Crystal a divorce petition had been filed, she was suspicious of the truthfulness of his statement. The petition appeared to be hand-written and dated the same day she conducted her home study. And finally, CPS considered the fact that Grandfather tried to bribe Patricia Berry with $3,000 to redo the home study and approve it so he could get the children as a factor in denying his home study.
The trial court also heard evidence that Mother did not believe Grandfather was suitable to care for the children because he never intervened in her life growing up.
CPS also conducted a home study of Mother's brother. They determined he was not an appropriate option because he also did not believe Mother had a drug problem or had ever been abusive or neglectful. In fact, he stated he did not know why the children were removed or why they had not been returned to the parents. Because of these beliefs and his close relationship with Mother, Crystal did not feel he would have a desire to enforce any guidelines on Mother regarding contact with the children. She also was concerned he would be unable to meet the children's emotional needs since he is a single male who has never had any children, much less experience with children with special needs. Finally, although he claimed he would have support from Grandfather and Father's mother, CPS had already determined Grandfather was not an appropriate option for the children, and a home study of Father's mother established she lived with a convicted sex offender. As such, any dependence on these individuals for help was not considered.
CPS thoroughly investigated willing family members for placement of the children and concluded none of them were suitable to provide for their special needs and protect them from the negative influences of Mother because none of them were willing to recognize that she was part of the abuse and neglect. See Horvatich v. Tex. Dep't of Protective Regulatory Servs., 78 S.W.3d 594, 604 (Tex.App.-Austin 2002, no pet.) (noting in a termination case, it is certainly in the best interest of the children that the Department attempt to place children with a relative if possible). Thus, clear and convincing evidence exists to support the trial court's decision that termination would be better for the children than placement with a viable relative. But see id. (concluding evidence was factually insufficient to support termination when there was no evidence of why maternal grandmother was not considered for placement).
Conclusion
After reviewing the evidence and considering the appropriate Holley factors, we conclude clear and convincing evidence exists that termination of Mother's parental rights was in the children's best interest. Thus, the evidence is factually sufficient to support the trial court's judgment. Mother's assertion that there was no evidence to support that continued, monitored contact with her or the extended family would be detrimental to the children is but one factor the trial court could consider in determining whether termination was in their best interest. However, as stated above, the trial court had evidence before it that the extended family minimized Mother's problems and therefore could possibly allow the children continued access to her, which was not in their best interest.
The strong evidence in support of the other Holley factors supports the trial court's judgment. We overrule appellant's sole issue and affirm the trial court's judgment.