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holding that foster parents with whom child had lived for seven months prior to filing of suit met standing requirements under both subsections and of family code section 102.005
Summary of this case from In re D.A.Opinion
NO. 12-11-00004-CV
09-28-2012
IN THE INTEREST OF M.J.R.B., A CHILD
APPEAL FROM THE
COUNTY COURT AT LAW
CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
A.M.H. appeals the termination of her parental rights. In three issues, A.M.H. challenges the order of termination. We affirm.
A.M.H. is also sometimes referred to as A.H., A.M.B., or A.M.H.B. in the pleadings or other papers in this case.
BACKGROUND
A.M.H. is the mother of M.J.R.B., born May 22, 2009. On June 30, 2010, C.A.S. and C.L.S. filed an original petition to terminate the parent-child relationship between A.M.H. and M.J.R.B., which included a petition in suit affecting the parent-child relationship, and for adoption of M.J.R.B. After a hearing on temporary orders, the trial court found that C.A.S. and C.L.S. had standing to bring a suit for termination and adoption under the family code. The trial court appointed C.A.S. and C.L.S. as temporary sole nonparent managing conservators and A.M.H. as temporary possessory conservator of M.J.R.B. Further, the trial court ordered that A.M.H. have possession of M.J.R.B. at the discretion of C.A.S. and C.L.S., and ordered A.M.H. to pay child support. On August 6, 2010, A.M.H. filed an original answer and a motion to strike, alleging that C.A.S. and C.L.S. did not have standing to file suit because the child is not eligible for adoption. At a hearing, the trial court denied A.M.H.'s motion to strike, finding that C.A.S. and C.L.S. had standing, and confirmed its previous ruling. The trial court also filed a temporary possession order granting A.M.H. one period of access to M.J.R.B. each week.
At the conclusion of a jury trial, the jury found, by clear and convincing evidence, that A.M.H. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights, and that termination of the parent-child relationship between A.M.H. and M.J.R.B. was in the children's best interest. Based on these findings, the trial court ordered that the parent-child relationship between A.M.H. and M.J.R.B. be terminated. A.M.H. filed a motion for new trial, which was overruled by operation of law. This appeal followed.
STANDING
In her first issue, A.M.H. argues that the trial court erred by finding that C.A.S. and C.L.S. had standing to bring suit. Standard of Review
Subject matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is implicit in the concept of subject matter jurisdiction. Id. Whether a party has standing to maintain a suit is a question of law. Tex. Natural Res. Conservation Comm'n v. IT—Davy, 74 S.W.3d 849, 855 (Tex. 2002); In re A.J.L., 108 S.W.3d 414, 419 (Tex. App.—Fort Worth 2003, pet. denied). To have standing, the pleader bears the burden of alleging facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Ass'n of Bus., 852 S.W.2d at 446. In our review of standing, an appellate court takes the factual allegations in the petition as true and construes them in favor of the pleader. Juarez v. Texas Ass'n of Sporting Officials, El Paso Chapter, 172 S.W.3d 274, 278 (Tex. App.—El Paso 2005, no pet.) (citing Texas Ass'n of Bus., 852 S.W.2d at 446). Besides the pleadings, an appellate court may also consider relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
Standing to sue may be predicated upon either statutory or common law authority. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 850 (Tex. App.—Fort Worth 2005, no pet.). When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis. Id.at 851. Applicable Law
An original suit requesting only an adoption or for termination of the parent-child relationship may be filed by an adult who has had actual possession and control of the child for not less than two months during the three month period preceding the filing of the petition, or another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so. TEX. FAM. CODE ANN. § 102.005(3), (5) (West Supp. 2012). An original suit affecting the parent-child relationship may be filed at any time by a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition. TEX. FAM. CODE ANN. § 102.003(a)(9) (West Supp. 2012). Analysis
Here, C.A.S. and C.L.S. filed an original petition on June 30, 2010, to terminate the parent-child relationship between A.M.H. and M.J.R.B. They asserted that they had standing pursuant to Texas Family Code Section 102.005(3). Additionally, they pleaded in their original petition in suit affecting the parent-child relationship that they had standing pursuant to Texas Family Code Section 102.003(a)(9). We must take the factual allegations in the petition as true and construe them in favor of C.A.S. and C.L.S. See Juarez, 172 S.W.3d at 278. However, we may also consider relevant evidence to resolve this issue. See Bland Indep. Sch. Dist., 34 S.W.3d at 555.
A hearing on temporary orders, C.L.S. testified that on December 18, 2009, M.J.R.B. began living with her and her husband. She stated that M.J.R.B. had been in their care for seven months, and testified regarding their care, development, and affection for her. Based on this evidence, the trial court determined that C.A.S. and C.L.S. had general standing under Texas Family Code Section 102.003(a)(9) because they had possession of M.J.R.B. for more than six months prior to the filing of the petition. Further, the trial court found that C.A.S. and C.L.S. had standing under Texas Family Code Sections 102.005(3) and 102.005(5).
At the hearing on the motion to strike, Pat Shaw, a family based safety services caseworker for the Department of Family and Protective Services (the Department), testified that in December 2009, A.M.H. voluntarily placed her child with C.L.S. and C.A.S. The trial court determined that C.A.S. and C.L.S. had general standing to file suit because they are not foster parents and have had possession of M.J.R.B. for more than six months. Further, the trial court denied A.M.H.'s motion to strike, and found that similar to its previous ruling, C.A.S. and C.L.S. had standing to file suit under Texas Family Code Sections 102.003(a)(9), 102.005(3), and 102.005(5).
From the factual allegations in the pleading and the evidence, the record establishes that C.A.S. and C.L.S. had actual possession and control of M.J.R.B. for not less than two months during the three month period before filing the petition, thus fulfilling the jurisdictional requirements of Texas Family Code Section 102.005(3). Further, the pleadings and evidence showed that they had substantial past contact with the child sufficient to warrant standing to file an original suit for termination pursuant to Texas Family Code Section 102.005(5). The evidence also showed that C.A.S. and C.L.S. were not foster parents, and had actual care, control, and possession of the child for at least six months preceding the date of the filing of the suit affecting the parent-child relationship, thus fulfilling the jurisdictional requirements of Texas Family Code Section 102.003(a)(9).
Because the pleadings and evidence support C.A.S. and C.L.S.'s standing to maintain this suit, the trial court did not err in finding that C.A.S. and C.L.S. had standing and denying A.M.H.'s motion to strike. Accordingly, A.M.H.'s first issue is overruled.
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). 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.). 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. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012); In reJ.M.T., 39 S.W.3d 234, 237 (Tex. App.-Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN. § 161.001(1) (West Supp. 2012); Green v. Texas Dep't of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West Supp. 2012); In re J.M.T., 39 S.W.3d at 237. Additionally, both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.
Due process requires a petitioner to justify termination by clear and convincing evidence because termination is such a drastic remedy. In re J.M.T., 39 S.W.3d at 237. The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. Clear and convincing evidence 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). There is a strong presumption that the best interest of the child is served by preserving the parent-child relationship. Wiley, 543 S.W.2d at 352; In re J.M.T., 39 S.W.3d at 240. Thus, the burden of proof is upon the person seeking to deprive the parent of their parental rights. In re J.M.T., 39 S.W.3d at 240.
STANDARD OF REVIEW
The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. In re C.H., 89 S.W.3d at 25. In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the record, both in support of and contrary to the trial court's findings. Id. at 27-29. An appellate court must also give due deference to findings of fact, and must not supplant the fact finder's judgment. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
This standard retains the deference an appellate court must have for the fact finder's role. In re C.H., 89 S.W.3d at 26. Additionally, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st Dist.] 1997, pet. denied). Thus, our review must not be so rigorous that only fact findings established beyond a reasonable doubt could withstand review. In re C.H., 89 S.W.3d at 26.
TERMINATION UNDER SECTION 161.001(1)(E)
In her second issue, A.M.H. argues that the evidence is factually insufficient to support a finding that she engaged in conduct, or knowingly placed M.J.R.B. with persons who engaged in conduct, that endangered the child's physical or emotional well being. Applicable Law
The court may order termination of the parent-child relationship if it 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. TEX. FAM. CODE ANN. § 161.001(1)(E) (West Supp. 2012). The specific danger to the child's well being need not be established as an independent proposition, but may instead be inferred from parental misconduct. Tex. Dep't of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.J., 911 S.W.2d at 440. Further, scienter is not required for an appellant's own acts under Section 161.001(1)(E), although it is required when a parent places his child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). Finally, the need for permanence is a paramount consideration for the child's present and future physical and emotional needs. In re N.K., 99 S.W.3d 295, 301 n.9 (Tex. App.-Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d 190, 200 (Tex. App.— Amarillo 1999, no pet.).
"Endanger" means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533; In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.). It is not necessary that the conduct be directed at the child or that the child actually suffers injury; rather, it is sufficient that the child's well being be jeopardized or exposed to loss or injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. Subsection (E) requires us to look at the parent's conduct alone, including actions, omissions, or the parent's failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.-Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811. It is inconsequential that the parental conduct occurred before the child's birth. In re U.P., 105 S.W.3d at 229; In re D.M., 58 S.W.3d at 812. Instead, courts look to what the parent did both before and after the child's birth to determine whether termination is necessary. In re D.M., 58 S.W.3d at 812. Further, termination under subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.-Fort Worth 2000, pet. denied). A voluntary, deliberate, and conscious "course of conduct" by the parent that endangers the child's physical and emotional well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.
As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well being of a child. In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Analysis
At trial, Elsa Davise, a supervisor for the Department, stated that on May 22, 2009, the Department received a report from the hospital regarding A.M.H. and M.J.R.B. She stated that the hospital was concerned about A.M.H., her mental state, and her ability to provide care for her newborn child. Davise testified that a case was opened because of A.M.H.'s history and possible mental health issues, and because she did not have her other children in her care. At that point, Davise stated, the Department determined that the child was in no immediate danger and allowed A.M.H. to leave the hospital with the child. Davise also stated that later A.M.H. was offered family based safety services based on her history. These services included parenting, anger management, individual counseling, and a psychological evaluation. Davise testified further that A.M.H. voluntarily placed M.J.R.B. with Stephanie Steiffer in May 2009, and began living with Steiffer. However, in December 2009, A.M.H. voluntarily placed M.J.R.B. with C.A.S. and C.L.S.
Davise stated that in January 2010, A.M.H. began living at The Salvation Army. She admitted that A.M.H. got a full time job at some point, moved from The Salvation Army to an apartment with its help, and showed progress. Davise stated that in May or June 2010, the Department determined that a reunification effort should be made between A.M.H and M.J.R.B. She testified that A.M.H. had progressed to unsupervised eight hour visits with the child, and that the next step would have been overnight visits. She stated that prior to June 2010, A.M.H. had not done anything that would have led the Department to believe that termination of her parental rights was appropriate. Davise also testified that A.M.H. lost her job between August and September 2010 and was no longer living in the apartment.
During Davise's testimony, counsel for C.A.S. and C.L.S. introduced records including a child interview guide dated March 2010. According to Davise, the child interview guide showed that a child living with Steiffer made an outcry against A.M.H. She testified that the outcry involved A.M.H. trying to touch the child while the child was bathing. Although Davise stated that A.M.H. was asked to leave Steiffer's house, she did not know if this was the cause of her leaving.
Pat Shaw, a caseworker for the Department, stated that she was M.J.R.B.'s caseworker. Shaw stated that she was aware of A.M.H.'s history with the Department, including allegations that A.M.H. was not feeding her oldest child, that she spanked the child with a brush, and that she hit the child. Regarding M.J.R.B., Shaw recalled that A.M.H. told her that she took the child to the Bottoms Up club to introduce the child to the managers or owners. Shaw denied receiving any reports of negligent treatment of M.J.R.B. by A.M.H. while the child was at Steiffer's home. She stated that Steiffer told her that A.M.H. was a good mother. She acknowledged that an early childhood intervention completed on M.J.R.B. in September 2009 revealed no developmental delay or concerns. Because of problems between A.M.H. and Steiffer's family, she stated, A.M.H. decided to place the child with C.A.S. and C.L.S. Shaw stated that she received a complaint from C.A.S. and C.L.S. regarding some mosquito bites, but could not determine when they occurred. She did not receive a report that M.J.R.B. had open sores from a diaper rash nor was she aware that one of the Department's workers left M.J.R.B. at A.M.H.'s apartment without electricity.
Shaw stated that she reviewed A.M.H.'s psychological evaluation and that it supported her belief that the Department needed to offer services and continue its efforts. According to Shaw, A.M.H. completed parenting education, anger management, and participated in counseling. Shaw stated that upon her recommendation, A.M.H. entered The Salvation Army and availed herself of its services. She also requested that The Salvation Army extend A.M.H.'s stay, hoping that the Department could move forward with visitations. She recalled stating in April 2010 that she wanted A.M.H. to get the child back in a week. In June 2010, she informed C.L.S. that the Department was moving towards family reunification. She stated that she was looking forward to completing this goal around August 2010. Shaw could not recall "using the particular terminology" to counsel for C.A.S. and C.L.S. that the Department was "not anywhere close to placing the child back" with A.M.H.
William Andrew McBride, Ph.D., testified that he reviewed A.M.H.'s records pertaining to her mental health from 1992 through July 2010. McBride stated that in 1992, A.M.H. was diagnosed with oppositional defiant disorder, ADHD, and a developmental disorder in math. He noted that A.M.H.'s records showed outbursts or explosions of temper and violence. At one point, he stated, the records included a statement by A.M.H. that she was going to kill one of her older children because the child called A.M.H. by her name instead of calling her "Mother." The records also showed that A.M.H. beat up her uncle.
McBride stated that in 2003, he tested A.M.H.'s verbal and performance intelligent quotient. This test revealed a twenty-five point difference between the verbal score and the performance score. According to McBride, "[T]hat shouldn't happen." He stated that the only reason for the discrepancy was that the court sent A.M.H. to him, she wanted to get one of her children back, and she wanted Social Security disability. McBride diagnosed A.M.H. with bipolar II, personality disorder not otherwise specified, and mixed personality disorder with borderline antisocial, schizotypal, paranoid, obsessive compulsive, and dependent features. He stated that treatment of someone with antisocial personality disorder takes years and that the success rate is "horrendous." McBride also stated that a person with antisocial personality disorder is the same as a sociopath. In his opinion, a person with bipolar II would not seek help voluntarily. McBride stated that A.M.H. needed medication and intense counseling.
McBride stated that A.M.H. was in a mental health hospital several times in 2007. He testified that her history suggested that she would arrive at a hospital and indicate that she really needed help, would work hard, and would commit suicide if she did not receive help. Further, he saw a pattern of noncompliance, and noted that A.M.H. made threats of harm to herself and others. McBride stated that A.M.H. has not shown that she could be an empathetic, caring, loving parent, and he would not allow her to babysit his grandchildren. In his opinion, the problem with allowing A.M.H. unsupervised visitation with M.J.R.B. is what would happen if A.M.H. became emotionally fatigued to the point where she was unable to control her impulses. Further, he would expect M.J.R.B. to be in danger of emotional, physical, and mental abuse or neglect if she was placed in A.M.H.'s custody. McBride stated that A.M.H. engaged in conduct that endangered M.J.R.B.'s physical and emotional well being when she took the two day old infant to a club after being released from the hospital. He stated that a two day old infant does not have the potential to fight off infection.
Stephanie Steiffer stated that A.M.H. has lived with her on and off for approximately ten years. She has had possession of A.M.H.'s third child, K., for almost five years. She stated that K. came into her care because she was being starved and neglected. According to Steiffer, A.M.H. could not handle K. because she is a special needs child. In Steiffer's opinion, A.M.H. has a mental illness. Further, she testified that her (Steiffer's) eleven year old stepchild made an outcry against A.M.H., stating that A.M.H. touched her private areas.
After M.J.R.B. was born, Steiffer testified, A.M.H. lived with the child in someone else's house. However, four to five days later, A.M.H. called Steiffer and stated that the Department was going to take the child. At that point, M.J.R.B. and A.M.H. began living with her and continued to do so until November 2009. She stated that sometimes A.M.H. took care of M.J.R.B., but it "just depended on the day." The majority of the time, Steiffer testified, A.M.H. stayed up most of the night and slept most of the day. According to Steiffer, there were about three altercations with A.M.H. Once, Steiffer woke up and noticed that her six year old daughter's clothes had been changed. Her daughter told her that A.M.H. hit her in the face, that her nose bled, and that she had to wash her clothes. A.M.H. denied it, stating that the daughter wet the bed. A second altercation occurred, she testified, when she asked A.M.H. if she could help her clean the house. A.M.H. became irate, Steiffer pointed at her, and A.M.H. hit her in the face twice.
The last altercation began in November 2009 at Steiffer's mother's house between her mother and A.M.H. Steiffer told A.M.H. to go back to her house. Steiffer testified that when Steiffer arrived home, A.M.H. and Steiffer's husband were fighting near M.J.R.B. in a bassinet. According to Steiffer, A.M.H. began crying, shoved and hit Steiffer's husband, and screamed in six month old M.J.R.B.'s face, "[S]hut the f*** up, bi***." Steiffer's husband then called the sheriff's department. Steiffer testified that A.M.H. tried to take M.J.R.B., but she told A.M.H. that she, Steiffer, could go to jail if she allowed A.M.H. to take her. A.M.H. gave the child back to Steiffer, and Steiffer took A.M.H. to the Bottoms Up club. Steiffer stated that A.M.H. has not been back in her home.
Tommy Les McElroy, Jr., Steiffer's husband, testified that in November 2009, A.M.H. and Steiffer's mother had an altercation. Afterwards, A.M.H. returned to McElroy's house, and went into his and Steiffer's bedroom where M.J.R.B. was in a bassinet. According to McElroy, A.M.H. went to the bassinet, leaned over it with her fist balled up, and said, "[S]hut the f*** up, bi***." McElroy got between A.M.H. and the baby, and tried to get A.M.H. out of the house. He testified that A.M.H. somehow got the baby, and he called the sheriff's department. He stated that A.M.H. gave the baby back to Steiffer and left. He feared for M.J.R.B.'s safety and believed that A.M.H. was going to harm the child. McElroy stated that before M.J.R.B. was born, A.M.H. went into a "psychotic fit" at their house during which she became hostile, cursed, screamed, and said that she was going to "kill her, kill you," or "kill somebody."
Alexandria Gillen, Steiffer's niece, stated that she has known A.M.H. since Gillen was a little girl. When Gillen was about six or seven years old, A.M.H. told her that she was bisexual and liked to perform oral sex. She observed A.M.H. with M.J.R.B. about three or four times. According to Gillen, A.M.H. was not very good with M.J.R.B. She said on one occasion, the baby was in the back of the house crying. She told A.M.H. that the baby was crying. A.M.H. responded that the baby was supposed to be sleeping and kept talking. Finally, Gillen stated that she went and got M.J.R.B. In her opinion, A.M.H. did not display affection toward her child like a mother should.
Trista Hale Donaldson stated that she knows A.M.H. through Steiffer, who is her aunt. She testified that she lived about two blocks from Steiffer and had observed A.M.H. and M.J.R.B. together. She stated that when she visited, she would discover M.J.R.B. crying or awake in her play pen or bed. If Donaldson brought the baby into the living room, A.M.H. would get mad and take the baby back to the bedroom. She never saw A.M.H. feed the baby. For approximately one month after M.J.R.B. was born, Donaldson believed that A.M.H. was bonding with the child, but she then "went right back to her old habits." She observed A.M.H. out at night, drunk, reckless, careless, and having fun. She stated that A.M.H. began going to bars, wanted to party all the time, wanted to be up at night and sleep all day, and did not change or bathe the baby.
Donaldson testified that she saw A.M.H. and another woman get into an argument in Steiffer's front yard and that the argument became very violent. When Donaldson was twelve, she and A.M.H. were at Steiffer's house and had a disagreement. She stated that A.M.H. called Donaldson's eight year old sister something very ugly, resulting in a physical altercation between her and A.M.H. She noted that at the time, A.M.H. was an adult.
John Norman, with The Salvation Army, testified that on January 20, 2010, A.M.H. came to their shelter. After thirty days, he stated, the residents must begin paying room and board, or $60.00 per week. He stated that A.M.H.'s stay was extended until June 4, 2010, and that A.M.H. found employment on March 15, 2010, at a Dollar General Store. He stated that before she found a job, records showed A.M.H. was two weeks away from being discharged from the program. However, Norman testified that The Salvation Army paid the rent and deposit on an apartment for A.M.H. in the amount of $950.00 even though A.M.H. was in arrears in the amount of $360.00 for room and board. According to Norman, records from The Salvation Army showed that A.M.H.'s caseworker at the Department wanted to reunite A.M.H. with M.J.R.B. and petitioned to move her into a family room at the shelter. However, he stated, The Salvation Army believed it was more feasible to find A.M.H. an apartment.
Norman also testified that The Salvation Army has a no fraternizing rule, and that the shelter had to address that rule more than once with A.M.H. According to Norman, A.M.H. would "find herself" in front of the men's dorm, dancing, and was always in front of the window by the men's dorm. Norman testified that A.M.H. was aggressive and would resist correction. There was a concern, he stated, regarding A.M.H.'s mental health because she was aggressive with the residential director and would not calm down.
Gail Adams, an employee at Meadowbrook Apartments in Tyler, Texas, testified that A.M.H. moved into an apartment in June 2010. She stated that there was a lot of activity at A.M.H.'s apartment, and received complaints about A.M.H.'s early morning behavior and garbage outside the front door. She stated that The Salvation Army paid A.M.H.'s deposit and first month's rent, A.M.H. and a Tiffany Smith paid some rent, and then payments ceased. According to Adams, Meadowbrook Apartments gave A.M.H. a delinquent notice for nonpayment of rent in September 2010. Shortly afterward, A.M.H. moved from the apartment.
Melody Walters stated that the first time she met A.M.H. was in July 2010, when she came to Walters's house with Tiffany Smith. She stated that A.M.H. and Smith were intoxicated and looking for Walters's daughter. In August or September of 2010, Walters testified that her daughter called, told her that she had had too much to drink, and that she needed a ride home. She stated that her daughter decided to ride with A.M.H. and Smith even though they had also been drinking. When Walters attempted to pick up her daughter, the three women had already left the club. She called Smith and asked her to pull over, but she refused. Walters followed the car to an apartment complex and retrieved her daughter. The third time Walters saw A.M.H. and Smith was approximately two weeks before trial when they arrived, intoxicated, on her front porch in the middle of the night.
C.L.S. testified that she is a registered nurse at Trinity Mother Frances Hospital. She and her husband, C.A.S., were given custody of M.J.R.B. on December 16, 2009. She stated that M.J.R.B. was almost seven months old and developmentally delayed, unable to sit up or crawl. C.L.S. stated that M.J.R.B.'s doctor did not know if her delay was neurological or environmental. However, within a week, M.J.R.B. was crawling and within a month or two, she was pulling up.
C.L.S. stated that she always knew when A.M.H. had visitation with M.J.R.B. because the child would throw out of the ordinary fits, throw herself on the floor and scream, and attempt to play with things that she was not ordinarily allowed to play with. In recent visitations with A.M.H., C.L.S. stated, M.J.R.B. screamed when she would hand her to A.M.H. and try to go back to C.L.S. She stated that when M.J.R.B. returned, the child would not let go of her and her husband. C.L.S. observed A.M.H. and M.J.R.B. together at her house twice, at The Salvation Army once, and when A.M.H. left the child for visits. C.L.S. stated that when A.M.H. first left the child in December 2009, she did not interact with the child at all. The second time, A.M.H. held the child for about three to five minutes, put her down, and did not interact with the child again. She testified that at The Salvation Army, A.M.H. held the child, but did not show any affection. C.L.S. stated that during this visit, M.J.R.B. repeatedly tried to return to her and her husband.
C.L.S. stated that M.J.R.B. came back from visitations a few times with mosquito bites. According to C.L.S., M.J.R.B. is allergic to mosquito bites and she always included repellant in the child's bag. When she brought up the fact that M.J.R.B. was returning with mosquito bites, Shaw (the caseworker) always made excuses for them. C.L.S. testified that one time, M.J.R.B. left for a visitation with a diaper rash. She sent cream, medicated powder, and a note to A.M.H. explaining that the child had a diaper rash. When M.J.R.B. returned, the child was crying, had open, broken sores, and could not sit. She informed Shaw who stated that some mothers did not like to use powder and in C.L.S.'s opinion "blew it off."
When M.J.R.B. was accidentally injured, C.L.S. attempted to contact A.M.H. and Shaw but could not reach either of them. Then, she called the Dollar General where A.M.H. worked and heard A.M.H. tell the person answering the telephone that she would call back. C.L.S. stated that she never did. C.L.S. stated further that A.M.H. has not called to check on the child, come to see her at C.L.S's house, or come to her birthday party, despite being invited to do so. She opined that taking a two day old infant to a club would be placing the child in a dangerous surrounding. She testified that a young infant does not have an immune system and that the germs could cause an infant to contract an illness, virus, or disease.
Shronda Hinton, a human service technician with the Department, stated that she transported M.J.R.B. to visitations with A.M.H. She supervised these visits from December 28, 2009, to June 28, 2010. Hinton stated that beginning in May 2010, the visits were unsupervised, going from one hour to eventually all day. Hinton testified that the interaction between A.M.H. and M.J.R.B. was good and appropriate. She stated that in visitations in January 2010, A.M.H. would check M.J.R.B's diaper, hold her, and play with her for a few minutes, but then the child would go to sleep. She admitted leaving M.J.R.B. at A.M.H.'s apartment without electricity in the summer of 2010. However, Hinton stated, the apartment was fine and not too hot.
Hinton disagreed that the child was brought back to the day care from visitations with an overly soiled diaper. She remembered M.J.R.B. crying when she returned her to day care only twice. According to Hinton, A.M.H. never acted inappropriately or became angry, unless it was something concerning her child. Brittany Davis, an employee with Kid N Motion day care, testified that M.J.R.B. was in her day care. She stated that when M.J.R.B. would leave the facility for a visitation with A.M.H., the child would cry and fight the Department worker taking her. Davis stated that when M.J.R.B. returned, she would be dirty, sleepy, fussy, frustrated, very wet, without having had her diaper changed, and very hungry.
Viewing all the evidence in the record, both that in support of and contrary to the trial court's findings, we hold that a reasonable fact finder could have determined that A.M.H.'s history of mental illness; aggressive behavior, including physical assaults against an uncle, Steiffer, Steiffer's six year old child, and Donaldson, threats to kill one of her children, and threats against M.J.R.B. while leaning over her bassinet; inappropriate behavior at The Salvation Army, and with Gillen, taking the two day old infant to a club, staying up all night going to bars, and continually being intoxicated; possible sexual assault against Steiffer's stepchild; inattention and neglect of M.J.R.B.; and unstable home life subjected M.J.R.B. to a life of uncertainty and instability. See In re M.R.J.M., 280 S.W.3d at 503.
Although there is evidence that conflicts with the trial court's findings, including that A.M.H. found employment at some point, completed parenting education, participated in counseling, and had appropriate visitations with the child, the trial court could have resolved this conflict in favor of its finding. There is also some disputed evidence, that this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that A.M.H. engaged in conduct or knowingly placed M.J.R.B. with persons who engaged in conduct that endangered her physical or emotional well being. The evidence is factually sufficient to support termination of A.M.H.'s parental rights to M.J.R.B. Accordingly, A.M.H.'s second issue is overruled.
Under Section 161.001, C.A.S. and C.L.S. were required to prove only one ground of termination under subsection (1). Because we have concluded that the evidence is factually sufficient to support termination of A.M.H.'s parental rights under subsection (1)(E), we need not determine if the trial court's findings under subsection (1)(D) are also supported by legally and factually sufficient evidence. Therefore, we do not address A.M.H.'s second issue regarding this ground for termination.
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DISPOSITION
Having overruled A.M.H.'s first and second issues and concluded that we need not address her remaining argument, the judgment of the trial court is affirmed.
BRIAN HOYLE
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
JUDGMENT
NO. 12-11-00004-CV
IN THE INTEREST OF M.J.R.B., A CHILD
Appeal from the County Court at Law
of Cherokee County, Texas. (Tr.Ct.No. A2010-00013)
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.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.