Opinion
No. 04-16-00795-CV
05-10-2017
IN THE INTEREST OF N.R.G., et al., Children
MEMORANDUM OPINION
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA00044
Honorable Karen A. Crouch, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
The parental rights of mother A.R-J.P. and father L.J.S-G, Jr. were terminated as to their three children N.R.G., F.R.G., and N.E-R.G. Father appeals the trial court's findings on two statutory grounds relating to the termination of his parental rights to F.R.G. Mother appeals the trial court's finding that termination was in the best interest of the children. We affirm the trial court's order.
BACKGROUND
On January 5, 2016, Jeanette Salazar, an investigator for the Texas Department of Family and Protective Services, received a referral based on observations that F.R.G. was emaciated with her rib cage showing. In addition, concerns were expressed about the children being dirty and possible drug use by the parents. At that time, N.R.G. was two, F.R.G was one, and N.E-R.G. was about one week old.
Salazar testified when she visited the home to investigate the referral, she observed F.R.G. when her mother undressed her. Salazar stated F.R.G.'s rib cage was showing, her skin under her arms and her butt area was sagging, she could not roll over, she appeared sick, and she could not respond to any social cues. Ten photographs of F.R.G. depicting her emaciated condition were introduced into evidence. Salazar contacted emergency medical services and had F.R.G. transported to the hospital.
Salazar further testified N.R.G's. hands and feet were dirty, and he was eating cereal from a bag. N.R.G. was not crawling, walking, or speaking. Because N.R.G. and F.R.G. appeared neglected, Salazar was concerned N.E-R.G. was also neglected.
At the time the children were removed, the mother and father were unable to provide an explanation to Salazar regarding the children's conditions. At a subsequent visit at the children's shelter, the mother, who was eighteen, admitted to Salazar that she was being lazy because of her pregnancy. The mother also told Salazar the father, who was nineteen, was working but would try to help when he was home. Salazar subsequently learned the father was not working. Both the mother and the father were indicted for injury to a child based on F.R.G.'s condition, and the mother and father admitted using marijuana.
After F.R.G.'s removal, she began gaining weight. Salazar testified the children were developmentally delayed at the time of the removal, which the parents also were unable to explain. The mother and father had never sought any medical attention for F.R.G. or even routine medical care for immunizations.
Kathleen Buckley, a pediatric nurse, testified she has evaluated over a thousand children based on allegations of neglect and abuse. Buckley specializes in children who have been neglected and are failing to thrive. Buckley testified F.R.G. was failing to thrive because she was unable to eat and was deprived of proper nutrients. F.R.G was not diagnosed with any medical condition that would cause her emaciated condition. Upon being provided with an appropriate caloric intake, F.R.G. immediately began to improve in the hospital. In the eight days F.R.G. was hospitalized, she gained two pounds.
After F.R.G. was discharged from the hospital, Buckley continued to follow her progress from February to September. During that time, Buckley testified F.R.G. progressed to crawling and pulling to stand. Previously, F.R.G. could not crawl or get into a sitting position. When F.R.G. was admitted to the hospital, she was thirteen months old; however, Buckley testified F.R.G. was the average weight of a three-month-old baby, and her development level was that of a five-month-old baby. Within two months, F.R.G. caught up developmentally.
The trial was held in December of 2016.
Buckley testified the mother and father were unable to explain F.R.G.'s condition. Although she should have been on formula until she was twelve months old, the parents started feeding F.R.G. milk at eight months because they ran out of formula. The parents told Buckley they tried to also feed F.R.G. ground meat and chicken; however, she would refuse to eat. Buckley testified F.R.G. demonstrated no refusal to eat in the hospital or in the foster home. Buckley stated a reasonable parent would have sought medical attention for F.R.G., and F.R.G.'s medical records showed she had not been to a doctor since she was six months old. Buckley testified F.R.G.'s sagging skin was a sign she had lost weight which the parents should have noticed. In Buckley's opinion, both parents physically and medically neglected F.R.G.
Buckley also monitored N.R.G. because he was placed in the same foster home. Buckley testified N.R.G. has more ongoing problems that took longer to treat. When N.R.G. was initially placed at the children's shelter, he could not walk and kept one leg bent when he crawled. He also was not eating well and preferred to drink from a bottle. N.R.G. was deaf in his right ear and was fitted with a device to assist him in hearing. At the time Buckley evaluated N.R.G., he was almost two; however, his development level was that of a nine or ten-month-old. During the period Buckley monitored N.R.G. from February to September, he made a tremendous amount of progress. N.R.G. had been discharged from physical therapy and was soon to be discharged from occupational therapy.
Jared Moore, the Department's caseworker, testified N.R.G. was thriving at the time of trial. He is able to say a few words, walk, and is starting to run. In addition, F.R.G. gained almost double her weight from when she was hospitalized and also is able to walk and run. N.E-R.G. is able to roll over and crawl.
While the case was pending, Moore testified the parents did not comply with services and currently are not able to meet their children's needs. The mother was dropped from individual counseling on three separate occasions, failed to follow the recommendations of her psychiatric evaluation, and constantly missed her parenting classes. The father was also dropped by his therapist, and neither parent maintained stable housing or stable employment. Both parents told Moore they were too tired or did not have time to feed F.R.G. Moore believed the parents chose not to feed F.R.G.
Moore believed the parents' rights should be terminated based on the manner in which the children have thrived in foster care. Moore stated the children are bonded to each other and are very bonded to their foster parents. The children have been with the foster parents for almost a year, and the foster parents have worked with the children to help them overcome their developmental delays.
After hearing the foregoing testimony, the trial court signed an order terminating the parents' parental rights. Both parents appeal.
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.
FATHER'S APPEAL - STATUTORY GROUNDS AS TO F.R.G.
The father appeals the trial court's findings on two statutory grounds relating to the termination of his parental rights to F.R.G. Specifically, the father challenges the grounds set forth in sections 161.001(b)(1)(D) and 161.001(b)(1)(E) of the Code as a basis for terminating his parental rights to F.R.G.
As previously noted, the Department is only required to prove one of the predicate grounds in section 161.001(b)(1) to support the termination of a parent's rights. See TEX. FAM. CODE ANN. § 161.001; In re A.V., 113 S.W.3d at 362. In addition to terminating the father's rights based on its findings under sections 161.001(b)(1)(D) and 161.001(b)(1)(E), the trial court also terminated the father's rights based on its findings under sections 161.001(b)(1)(K) and 161.001(b)(1)(O). Because the father does not challenge these other two grounds, we do not address his argument that the evidence is insufficient to support the trial court's findings under sections 161.001(b)(1)(D) and 161.001(b)(1)(E). In re J.J.C., No. 04-14-00577-CV, 2015 WL 452231, at *1 (Tex. App.—San Antonio Jan. 28, 2015, no pet.) (mem. op.); In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003, pet. denied).
MOTHER'S APPEAL - BEST INTEREST
In her appeal, the mother challenges the sufficiency of the evidence to support the trial court's finding that termination of her parental rights is in the children's best interests.
The Texas Supreme Court has enumerated the following factors to assist courts in evaluating a child's best interest: (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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 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 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." In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).
When N.R.G. and F.R.G. were removed from their parents' care, they were severely neglected which led to significant developmental delays. F.R.G. was emaciated and could not crawl or maneuver into a sitting position. At thirteen months old, F.R.G. was the average weight of a three-month old baby. Similarly, N.R.G. could not walk and his development level was over a year behind his age. Neither parent could explain the reason for the developmental delays. Eventually, the mother admitted she was too lazy during her pregnancy with N.E-R.G. to feed F.R.G.
While the case was pending, the parents failed to demonstrate any ability or desire to improve their parenting skills. They did not comply with services and were dropped from counseling or therapy. They did not maintain stable housing or employment. Furthermore, both parents admitted to using marijuana.
Since the children's removal, they have thrived. In the eight days F.R.G. was hospitalized, she gained two pounds. After being placed in her foster home, F.R.G. caught up developmentally within two months. Similarly, N.R.G. made significant progress. The children are bonded to their foster parents who have worked with the children to overcome their developmental delays.
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.
Irene Rios, Justice