Opinion
No. 04-16-00715-CV
04-19-2017
IN THE INTEREST OF M.L.D.R.E., D.A.E., A.A.E., and Y.M.E., Children
MEMORANDUM OPINION
From the County Court at Law, Val Verde County, Texas
Trial Court No. 3147-CCL
Honorable Sergio J. Gonzalez, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Yuriko E. appeals the trial court's order terminating her parental rights to four of her six children, M.L.D.R.E, D.A.E, A.A.E., and Y.M.E. Yuriko asserts the evidence is legally and factually insufficient to support the trial court's findings with regard to the three statutory grounds for termination and its finding that termination was in the children's best interest. We affirm the trial court's order.
BACKGROUND
The trial court made its ruling after a bench trial involving several recesses. The bench trial started on November 19, 2014 and continued for almost two years, starting again on January 29, 2016, April 26, 2016, April 27, 2016, September 14, 2016, and September 15, 2016. The trial court signed the order terminating Yuriko's parental rights on October 24, 2016. When the trial court signed the order, A.A.E was eight, Y.M.E. was six, M.L.D.R.E. was almost five, and D.A.E. was three.
As noted in Yuriko's brief, the reporter's record from April 27, 2016 is confusing and contains two separate court reporter's certificates - one in the middle of the record and one at the end of the record. It appears the portion of the reporter's record following the first certificate contains testimony from the day before the discussion and testimony that is contained in the first portion of the reporter's record. It does appear, however, that the eight volumes of reporter's records filed in the appeal contain all of the trial testimony.
The Department of Family and Protective Services removed D.A.E. and M.L.D.R.E. from Yuriko's care in July of 2013. At that time, two of Yuriko's children, A.A.E. and Y.M.E., were in Mexico with Yuriko's mother. At the Department's request, Yuriko brought A.A.E. and Y.M.E. back to the United States approximately one month later, and they were also removed from Yuriko's care. Yuriko's two other children, her oldest son J.A.E., who was ten at the time of trial, and her youngest son J.G., who was born on June 21, 2014, remained in Yuriko's care and were not subject to the termination proceedings.
Lisa Jensen, an investigator with the Department, testified the Department removed the children because D.A.E. presented to a hospital emergency room with injuries. Although D.A.E. had symptoms of a head injury in Del Rio, Yuriko drove with him to Cuero before taking him to the hospital. D.A.E. was then airlifted to a hospital in San Antonio. Jensen was told Yuriko's explanation of the injuries was not consistent with the nature of the injuries. Jensen believed D.A.E.'s injuries were caused by either Yuriko or her boyfriend, Genaro. On cross-examination, Jensen admitted Genaro's background check did not show any criminal history. Although Genaro expressed a willingness to provide a statement to the Department regarding his version of the facts, Jensen stated she was never able to talk to him.
Sandra Fuentez was initially assigned to the children's case as the Department's legal caseworker. Fuentez testified the father of M.L.D.R.E. is Josue, and the father of the other three children is Christian. Fuentez met with Josue; however, she was never able to contact Christian because he lived in Mexico and Yuriko could only provide his name and date of birth. Yuriko told Fuentez her relationship with Christian involved a lot of domestic violence. Yuriko also told Fuentez that Christian likely injured D.A.E. when he tried to pull D.A.E. out of a taxi.
Fuentez further testified an agreement was reached at a mediated settlement conference on October 30, 2014. Under the terms of the agreement, the Department would conduct an intake of the children's maternal grandfather who lived in North Carolina. If the intake was approved, the grandfather would be appointed managing conservator, and Yuriko would be appointed as possessory conservator. Yuriko would live with her father in North Carolina, and Genaro would remain in Texas and not have any contact with Yuriko or the children. Fuentez testified she believed Yuriko had positively engaged in the services the Department offered to her, and Yuriko had learned from the experience. Fuentez stated the Department still had concerns regarding the injuries to D.A.E. and M.L.D.R.E. because Yuriko's explanations for the injuries were not credible.
Krystal Lopez was assigned as the Department's caseworker in April of 2015, and testified the home study on the maternal grandfather was conducted but was denied three times. Lopez stated the Department removed the children because D.A.E. sustained a skull fracture and had six broken ribs. In addition, M.L.D.R.E. had healing fractures on her right tibia and on her right third metacarpal. At the time the injuries were discovered, Yuriko provided no explanation for the injuries. Yuriko subsequently provided multiple explanations; however, the medical experts opined none of the explanations Yuriko provided matched the injuries. Lopez testified Yuriko was in compliance with her service plan; however, the children did not listen to Yuriko or follow her instructions during visits. Lopez stated A.A.E. tried to run away from the visits because he did not want to be there, and M.L.D.R.E. cried. Lopez stated the children's behavior is completely opposite when they are with their foster parents. Lopez testified Yuriko has no support system in San Antonio to assist her with the children.
On cross-examination, Lopez testified she was assigned as the caseworker after the case passed the termination date of August 2014, and after Yuriko had completed all of her services. Lopez was shown a report from an April 2014 family group conference. The report stated Yuriko helped the children with their homework, provided them clothing, was hard working, and has a good support network. Although the report referenced a concern about Yuriko's relationship with Christian, the report did not reference any concern with Genaro. Lopez's last home study of Yuriko's home was in November of 2015, and the home was an appropriate house to care for the children. Lopez testified Yuriko regularly visits the children for four hours each week. Although D.A.E. is not close to Yuriko, the other three children are. Lopez testified the children had been with the same foster parents since June of 2015. Lopez stated she had only met with Yuriko approximately four times because Yuriko did not keep in contact with her. Lopez visits the foster parents every month. Lopez testified the criminal case against Yuriko for endangering a child which arose from the injuries to D.A.E. was dismissed.
In response to questioning by the children's ad litem, Lopez testified the Department's first priority was to ensure the children remain safe and protected. Lopez agreed the circumstances of the case changed since the April 2014 family group conference report.
On re-direct examination, Lopez testified Yuriko told her only Yuriko and her youngest son live in her house; however, Lopez saw a lot of men's clothing and shoes in the closet. At that time, Yuriko's oldest son was living in North Carolina. The Department had investigated a referral for medical neglect of the youngest son. Lopez testified he had been placed in a stroller and fell face first on a concrete floor. After the investigation, the case was closed. Lopez testified Genaro's name was on the lease of the apartment in San Antonio where Yuriko lived before moving into her current rental home.
Lopez was recalled as a witness in September of 2016. She testified termination of Yuriko's parental rights was in the best interest of the children because Yuriko had not changed her pattern of being in abusive relationships or demonstrated she could provide a safe environment for the children. Lopez stated Yuriko endangered the children by allowing them to be around Christian because he assaulted Yuriko. Lopez further stated one of the Department's concerns was Yuriko's relationship with Genaro and that Yuriko tried to hide her relationship with Genaro from the Department. Lopez agreed the only direct evidence in the Department's file regarding Genaro being abusive to the children was A.A.E.'s statements to his therapist. Lopez also agreed A.A.E. stated Genaro treated him well during A.A.E.'s forensic interview in 2013.
Dr. James Lukefar is a pediatrician who specializes in examining children who may be abused or neglected. On July 10, 2013, D.A.E. was airlifted to a hospital in San Antonio for treatment of a skull fracture and hemorrhage. Dr. Lukefar's colleague examined D.A.E. the following day, and Dr. Lukefar examined him at a follow-up visit on July 29, 2013. D.A.E. was two months old. Dr. Lukefar explained a hemorrhage is bleeding on the surface of the brain, and the injury to D.A.E.'s head was caused by blunt trauma. Dr. Lukefar further explained the nature of D.A.E.'s skull fracture was not typical for an accidental injury but was caused by the application of a substantial amount of force to D.A.E.'s head. Dr. Lukefar believed the skull fracture occurred a few days before D.A.E. was taken to the hospital. In addition to the skull fracture, D.A.E. had two rib fractures on the side of his ribcage that were probably two to three weeks old. A follow-up skeletal x-ray revealed D.A.E. had seven additional rib fractures which likely occurred approximately two weeks before D.A.E. was taken to the hospital. Dr. Lukefar stated the rib fractures were likely caused by a shaking force or force applied to the baby's chest. Based on the injuries D.A.E. sustained, Dr. Lukefar opined D.A.E. was the victim of physical abuse.
Dr. Lukefar also examined M.L.D.R.E., who was nineteen months old. The skeletal x-ray performed on M.L.D.R.E. revealed a fracture on her right tibia which Dr. Lukefar stated could conceivably have been inflicted and another fracture close to the wrist of her right hand which Dr. Lukefar opined was the result of blunt trauma or a forceful blow to her hand or wrist. Because the fractures were in advanced stages of healing, Dr. Lukefar opined they were three to four weeks old.
Dr. Lukefar testified he also examined A.A.E. and Y.M.E.; however, they were out of the age range for a skeletal x-ray. Both children had normal exams and appeared to be growing normally. Dr. Lukefar stated the children were four and three, respectively, at the time of the exam.
Jacqueline Guerrero supervised Yuriko's visitation with the children since November of 2015. Guerrero testified Yuriko visits the children four hours each week and had only missed one visit due to a court appearance. Because the foster parents are raising the children to speak English, Yuriko, who speaks very limited English, has difficulty communicating with them. Guerrero testified the children are quiet when they arrive with their foster parents and do not appear to be comfortable; however, the children are happy and excited to see Yuriko. On April 18, 2016, which was Yuriko's last visit with the children before Guerrero appeared in court to testify, Yuriko and Guerrero observed blood in the toilet after one of the children went to the restroom and saw blood stains on the girl's underwear. Guerrero reported the observation to the foster mother and made a referral to the Department. Guerrero testified the foster mother's response was not normal, but that Lopez, the caseworker, informed Guerrero that it was Yuriko who would not be allowed any further visitation with the children. Guerrero also testified one of the children was crying during a visit and told Guerrero that his foster mother told him he did not have a family. Guerrero explained Yuriko remains in the building until after the children leave with the foster parents to avoid any altercations. After one visit, Guerrero saw the foster parents parked in a location to observe Yuriko walking to the bus stop. Guerrero stated the children's hearts would be broken if they could no longer see Yuriko.
In response to questioning by the children's ad litem, Guerrero testified Yuriko brings her oldest and youngest sons to the visits, and the siblings are bonded. Guerrero testified Yuriko brings food and gifts for the children.
Yuriko testified she has six children, J.A.E., A.A.E, Y.M.E., M.L.D.R.E., D.A.E., and J.G. Christian is the father of J.A.E., A.A.E, Y.M.E., and D.A.E. Josue is the father of M.L.D.R.E., and Genaro is the father of J.G.
Yuriko met Christian when she was sixteen and living in Acuña, Mexico. Yuriko gave birth to J.A.E. when she was eighteen, and Christian became violent toward Yuriko after J.A.E. was born. Yuriko testified Christian slapped and punched her, and she believed Christian was using drugs when he abused her. Christian also cut her with a knife on her back. The cut was about six inches in length and required stitches. On another occasion, Christian threatened her with a gun. Yuriko testified Christian began working with a drug cartel and told her about people the cartel had killed. Y.M.E. was born in Del Rio, and after her birth, Yuriko started a relationship with Josue, M.L.D.R.E.'s father. When Josue discovered Yuriko had previously been in a relationship with Christian, Josue was afraid because of Christian's association with the drug cartel. Josue wanted Yuriko to have an abortion, but she refused and left after an altercation. Yuriko went back to live with her mother in Mexico who supported her. Yuriko testified she became pregnant with D.A.E. after Christian kidnapped her and raped her. While she was pregnant with D.A.E., Yuriko met Genaro. After D.A.E. was born, Christian attempted to kidnap Yuriko from a taxi cab. Yuriko believed D.A.E. sustained the skull fracture in that incident. Yuriko testified she initially stated D.A.E. had fallen off a bed because she was afraid what might happen if the Department discovered Christian's involvement.
With regard to M.L.D.R.E.s injuries, Yuriko believed M.L.D.R.E. fractured her leg when she twisted her foot on an uneven floor and fractured her wrist when Yuriko grabbed her hand to prevent her from falling to the floor. Yuriko stated M.L.D.R.E.'s hand and leg were swollen, but Yuriko did not take her to a doctor because Yuriko went to the hospital to have D.A.E. When Yuriko returned home, she testified M.L.D.R.E. no longer had any swelling. Yuriko denied being told she should not be in a relationship with Genaro. She stated she was not living with Genaro, who worked out of town, but she explained Genaro would come to her house to visit J.G.
Yuriko was recalled as a witness the final day of trial. Photographs of the children and the living arrangements Yuriko had made for the children were introduced into evidence. Yuriko testified she had family and friends who would help her with the children. Yuriko testified she completed all the services the Department requested and has been employed since the children were removed from her care. Yuriko stated she did not currently have a boyfriend. Yuriko testified Genaro had never been physically abusive to her or the children, and she did not believe he was dangerous or would hurt her children. Yuriko did not understand why the Department believes she can care for J.A.E. and J.G., who live with her, but not her other four children.
Erica Dilsaver is a licensed professional counselor who saw A.A.E. in therapy from January of 2014 to January of 2015 while he lived in a group foster home. A.A.E. was referred for therapy because he would have tantrums lasting up to three hours during which he would scream, yell, and attempt to destroy property. A.A.E. was six years old at the time of the referral. A.A.E. told Dilsaver he missed his mother but was afraid of Genaro. A.A.E. also told Dilsaver Genaro hit his younger sisters on their legs with an open hand and had punched A.A.E. in the face. A.A.E. further stated Genaro put cold water on him and made him sleep on the floor. When Dilsaver was asked if A.A.E. could have been coached into telling her about the abuse, Dilsaver responded anything is possible. Dilsaver testified A.A.E. wanted to return to his mother but did not want Genaro around.
The children's foster mother, Jennifer, testified the children had been in her care for fifteen months. She stated the children were very solemn and quiet when they first came into her care. Since the children have been in her care, they have become more outgoing and confident. Jennifer stated she and her husband want to adopt the children. Jennifer's parents, in-laws, and neighbors are available to help with the children. Jennifer testified the three older children have told her they do not want to move back with their mother even though the children love their mother.
Genaro testified he has never physically abused the children. Genaro testified he never lived with Yuriko after November 2014 when the Department said he could not be around the children, but he would still visit to spend time with J.G. Genaro stated he recently ended a ten-month relationship with another woman from Mexico.
Melanie Salazar is a caseworker assistant with the Department who supervises parent/child visits. Salazar estimated she had observed sixty to eighty visits between Yuriko and the children. Salazar testified Yuriko was not able to take care of the children and discipline them. The children tell Yuriko they do not have to listen to her and throw things at her. Salazar testified the children behave well around their foster parents.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'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.
In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
In reviewing the factual sufficiency of the evidence to support the termination of parental rights, a court "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. "A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." 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 a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
STATUTORY TERMINATION GROUNDS
Yuriko first challenges the sufficiency of the evidence to support the trial court's findings with regard to the following three statutory grounds for termination: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; see TEX. FAM. CODE ANN. § 161.001(b)(1)(D); (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; see id. at § 161.001(b)(1)(E); and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the children; see id. at § 161.001(b)(1)(O).
Based on the testimony presented, the trial court could have formed a firm belief or conviction that Yuriko or Genaro caused the injuries to D.A.E. and M.L.D.R.E. especially given Yuriko's failure to provide a credible explanation for the injuries. In addition, the trial court could have believed A.A.E.'s outcry that Genaro punched him in the face and hit M.L.D.R.E. and Y.M.E. on their legs. The trial court could also have believed Yuriko and Genaro were still living together despite A.A.E.'s outcry and the Department's concerns about Genaro's past abuse of the children. Therefore, the evidence is legally and factually sufficient to support the trial court's finding that Yuriko engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.
As previously noted, only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d at 362. "'If multiple predicate grounds are found by the trial court, we [may] affirm based on any one ground because only one is necessary for termination of parental rights.'" In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.) (quoting In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.)). Because we hold the evidence is sufficient to support the trial court's predicate finding under section 161.001(b)(1)(E), we do not address the trial court's other two predicate findings. See TEX. R. APP. P. 47.1
BEST INTEREST
There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016). In determining whether a child's parent is willing and able to provide the child with a safe environment, the court should consider: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id. at § 263.307(b).
Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (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. Id.
The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.
With regard to Yuriko's willingness and ability to provide the children with a safe environment, two of the children sustained injuries while in her care which the trial court could have believed were inflicted by Yuriko or Genaro. Rather than taking D.A.E. to a hospital in Del Rio, Yuriko drove with him to Cuero. A.A.E. also reported Genaro had punched him in the face and hit Y.M.E. and M.L.D.R.E. on their legs. A.A.E. was afraid of Genaro and did not want to be around him.
Jennifer P. testified A.A.E., Y.M.E., and M.L.D.R.E. have expressed a desire not to return to their mother. From the evidence, the trial court could have believed Yuriko continued to live with Genaro even though he had been abusive to the children. Therefore, the trial court could have believed Yuriko would not protect the children. The evidence established that Yuriko was unable to adequately parent the children during visits; however, the foster parents demonstrated good parenting abilities. The children had lived with the foster parents for fifteen months, and the foster parents want to adopt the children.
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination was in the children's best interest.
CONCLUSION
The trial court's order is affirmed.
Sandee Bryan Marion, Chief Justice