Opinion
NO. 09-17-00200-CV
10-26-2017
IN THE INTEREST OF T.H.
On Appeal from the County Court at Law Polk County, Texas
Trial Cause No. PC06482
MEMORANDUM OPINION
Appellant L.H. appeals from an order terminating her parental rights to her minor child, T.H. The trial court found, by clear and convincing evidence, that statutory grounds exist for termination of L.H.'s parental rights, and that termination of L.H.'s parental rights is in the best interest of T.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2) (West Supp. 2016). In issue one, L.H. argues that the trial court abused its discretion by refusing to interview T.H. in chambers. In issues two and three, L.H. challenges the legal and factual sufficiency of the evidence. We affirm the trial court's order.
PROCEDURAL BACKGROUND
In October 2015, the Department of Family and Protective Services ("the Department") filed a petition to terminate the parent-child relationship between L.H. and T.H., alleging, among other grounds, that L.H. had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of T.H. The Department further alleged that termination was in the best interest of T.H. In March of 2017, the trial court conducted a final hearing on the Department's petition to terminate.
At trial, Anita Sykes, a caseworker with the Department, testified that she was T.H.'s caseworker. Sykes explained that the Department had concerns regarding L.H. because she had failed to protect T.W., her child who had been sexually abused by L.H.'s current husband, W.H. Sykes testified that L.H. reviewed and signed the service plan. The Department's goals for L.H. were for her to stay clean from drugs, stay out of jail, and provide a stable environment for her children. Sykes explained that L.H. completed all items in the service plan except housing, because L.H. had failed to provide a stable home. According to Sykes, L.H. changed residences during the case without notifying the Department.
Sykes explained that T.H.'s father's home had been found to be inadequate, and while T.H.'s aunt had an adequate home, there were concerns about the aunt's son, who is a sex offender, living nearby. Sykes explained that T.H. was originally placed with the aunt's daughter (T.H.'s cousin), but T.H. was removed from that home when her grandfather passed away in the home. Sykes testified that L.H. had not provided an adequate home and had not reported where she was currently living. According to Sykes, L.H. was obligated to notify the Department when L.H. changed her address.
Sykes testified that T.H. was thriving in her current placement. Sykes testified that T.H. had improved in school since coming under the Department's care, and T.H. seemed more content and had opened up. According to Sykes, it is in T.H.'s best interest to continue visitation with her siblings. Sykes explained that because L.H. failed to provide a stable and safe home, it was in T.H.'s best interest to stay in her current placement. Sykes explained that in making her recommendation, she considered that L.H. had maintained communication with W.H. during his incarceration.
Amanda Jackson, a Conservatorship Supervisor for the Department, testified that she supervised Sykes. Jackson explained that T.H. was removed from her cousin's house after a man died there, and because the people staying at that house, including the deceased, had criminal histories as well as a history with the Department. According to Jackson, the cousin's house was not an approved placement. Jackson testified that a home study was conducted on W.H.'s sister, who was approved, but other parties objected to the placement. Jackson testified that a home study was not conducted on the aunt's home for the reasons stated above, and because of the aunt's son living nearby.
Jackson explained that the Department did not recommend returning T.H. to L.H. because of ongoing concerns regarding L.H.'s honesty, mental stability, and her ability to provide a safe and stable home. Jackson testified that L.H.'s ongoing contact with W.H. was a huge concern, because her relationship with W.H. had taken precedence over the safety and well-being of her children. Jackson was also concerned that L.H. had tried to get her daughter T.W. to change her story about being sexually assaulted by W.H.
Jackson testified that L.H.'s service plan required her to notify the Department if her residence changed and to report any new household members, and L.H. had failed to do so. According to Jackson, there is a thread of deceptiveness among L.H. and her family members. Jackson testified that the Department recommended terminating L.H.'s parental rights so that it could pursue a goal of unrelated adoption for T.H. Jackson explained that termination was in the best interest of T.H. because the only family member who was approved as a caretaker withdrew and there were no other family members who would be an appropriate placement. Jackson also explained that she took into account T.H.'s desire to stay at her current placement as well as L.H.'s continued relationship with W.H. According to Jackson, T.H. has thrived in her current placement and her foster parents are interested in adopting T.H. Jackson also explained that the Department wanted to ensure that T.H. maintained contact with her sister.
T.H.'s foster parent testified that T.H. is doing well in school and gets along with the other children in the home. The foster parent explained that T.H. struggles and gets really nervous because of her situation. According to the foster parent, T.H.'s behavior changes after visiting with L.H., and T.H. becomes a little abusive and grouchy. According to the foster parent, T.H. is going to counseling and wants to be normal like other children. She has expressed a desire to change her name if she gets to stay in her current placement. The foster parent also testified that T.H. never talks about going home, and the foster parent is prepared to adopt T.H. and allow T.H. to continue to visit with her siblings.
T.H.'s Court Appointed Special Advocate (CASA) representative, testified that T.H. is happy at her current placement and likes her school; she has her own room and belongings; and she feels like she is at home with the foster parent. According to the CASA representative, T.H. has expressed the desire to stay at her current placement; and CASA recommends that T.H. continue to stay there. According to the CASA representative, T.H. also expressed the desire to continue to see her family, and CASA believes that T.H. needs to visit her siblings. The CASA representative testified that it is in T.H.'s best interest that L.H.'s rights be terminated because T.H. needed stability, structure, and a place to feel safe. The CASA representative also testified that she had concerns about T.H. being at the aunt's house, because she questioned the aunt's ability to supervise T.H.; the aunt's son, a sex offender, lived next door; and L.H.'s father's house was nearby.
Rachel St. Julian testified that she was the Department Investigator who investigated the case when T.H. and T.W. were removed from the home. St. Julian testified that when she became involved, the children were already placed at the cousin's home. St. Julian explained that the Department had concerns about L.H.'s mental state because L.H. was not consistent about whether L.H. believed T.W.'s account about the sexual assault or about her plan of action to protect her children. According to St. Julian, L.H. was erratic, tried to get T.W. to change her story, and even considered bonding W.H. out of jail and moving back into the home with him. St. Julian also explained that L.H. was not consistent concerning her desire to have the children placed with her relatives.
Lieutenant Craig Finegan with the Criminal Investigation Division of the Polk County Sheriff's Office testified that he investigated the case regarding the sexual assault of T.W. Finegan testified that T.W. made an outcry statement against W.H., and W.H. admitted to having sex with T.W. Finegan testified that when he interviewed L.H., she denied having any knowledge of the abuse. The record shows that W.H. was convicted of continuous sexual abuse of a child under the age of fourteen and was sentenced to a term of twenty-five years in prison.
Jessica David, the Jail Administrator Secretary at the Polk County Sheriff's Office, testified that she keeps track of inmates' trust funds, mail logs, and phone logs. David testified that the logs show that L.H. had visited W.H. several times and made numerous phone calls, which were recorded, and the trial court admitted copies of W.H.'s jail and phone logs. The trial court also admitted audio recordings of W.H.'s jail calls with L.H. In the recorded telephone calls and live visits with W.H., L.H. told W.H. that she loved him, did not think he should have to do so much time in jail, would help him with his case, and would try to talk to T.W.
L.H. testified that she is currently married to T.H.'s father, W.H., but she is seeking a divorce. L.H. testified that her two other children, M.W. and T.W., have different fathers, and M.W. lives with one of L.H.'s aunts and T.W. lives with her father. L.H. explained that the Department became involved with T.H. because she reported that W.H. had admitted to having sex with T.W. L.H. testified that after she reported the incident, she moved to her father's house and never lived with W.H. again.
According to L.H., she was very upset about finding out that W.H. had raped T.W., and she still could not believe that it had happened. L.H. testified that she had visited W.H. since he had been incarcerated for the sexual assault, and she had spoken with him on the telephone about two weeks prior to trial. L.H. testified that she might have told W.H. that he had received too much time for the crime, and she did not know if she had agreed to speak with T.W. about recanting her statement. L.H. denied that she tried to get T.W. to change her story. L.H. testified that when she called W.H. at the jail, she did not know that the phone calls were being recorded. L.H. explained that she had talked to W.H. because she was scared and did not know how to get away from him, but L.H. admitted she was wrong for talking to W.H. and planned to stop.
L.H. explained that for the past four months, she had been living with a male friend who lives with his parents, and prior to that she lived with her father, who had recently passed away. L.H. testified that she had just finished chemotherapy treatments for her ovarian cancer, which is in remission, and she was recently diagnosed with kidney cancer. L.H. testified that she was going to nursing school, and that she received a grant to pay for her school. L.H. testified that she was not currently working, but she received SSI because she was bipolar and had PTSD. According to L.H., she was currently being treated and taking medications. L.H. explained that she got PTSD after being raped. Although L.H. admitted that in the past she had described herself as a ticking time bomb, she did not believe that to be the case anymore. L.H. testified that it had been over two years since she had taken any illegal drugs.
L.H. further testified that she did not think that T.H. was doing well in her current placement, and L.H. believed T.H. needed to be placed with family. L.H. testified that she was asking that the aunt be appointed as T.H.'s permanent managing conservator. L.H. explained that while the aunt's son is a sex offender and lives next door to her, the aunt does not have any contact with him. L.H. testified that the aunt's home would be appropriate for T.H., the aunt would take good care of T.H, and T.H. would have no contact with the aunt's son.
L.H. testified that she prepared a service plan with the Department specifying what L.H. needed to do to show that she had an appropriate home for T.H. L.H. testified that when she signed the family plan of service, she understood that it became a court order, and she knew that the plan required her to have safe and appropriate housing in order for T.H. to be returned. L.H. testified that she lived in a three-bedroom trailer with her friend, whom she later admitted was her boyfriend, and she stated that she paid part of the bills. According to L.H., she did not intend to stay with her boyfriend.
According to L.H., she had a stable home while living with her father, who died several months prior to the termination hearing. L.H. explained that her brother is now living in her father's home, and she had to move out. L.H. testified that she could move in with her relatives if she needed to do so to see her children. L.H. testified that she could provide a stable home life at either relative's house. According to L.H., she had complied with her family service plan, and all she wanted was to see her children. L.H. testified that T.H. wanted to be with her and it was not in T.H.'s best interest to never see L.H. again. L.H. believed that due to her health condition, T.H. should be placed with relatives.
Karen Bumpus, a licensed professional counselor, testified that she had been counseling L.H. for approximately one year, and Bumpus had been helping L.H. cope with L.H.'s health issues, losing her father, and having limited access to her children. According to Bumpus, L.H. has managed well, given the circumstances, and has complied with treatment and maintained sobriety. Bumpus testified that, in her opinion, T.H. should remain with L.H. if L.H. can provide a safe environment and uphold her responsibilities in meeting parental obligations. Bumpus explained that her opinion was based solely on what L.H. had reported to her. According to Bumpus, based on information that L.H. had provided, Bumpus was verifying that L.H. had done what had been asked of her concerning her treatment, and Bumpus was not making a recommendation concerning the placement of the child.
L.H.'s cousin testified on behalf of L.H., and testified that there was no reason T.H. could not be at her house. She testified that T.W. did report to her that L.H. had tried to get her to change her story about the assault, but claimed that T.W. was not credible, and she did not believe L.H. would do that. According to her, she did not associate with her brother who lives next door to their mother; she does, however, have a relationship with his wife and children. She testified that T.H. does not like her current placement, and is not doing well emotionally. She believes that T.H. would be safe with her and termination is not in T.H.'s best interest. She testified that L.H. is not a danger to her children and L.H.'s rights should not be terminated, but agreed that L.H. should cut off all contact with W.H. She testified that she wanted T.H. to live in her home and be back with the family.
The aunt testified that there is no reason why T.H. should not be placed with her daughter. The aunt also testified that she would love to have T.H. placed in her home. The aunt explained that she supervises L.H.'s visits with T.W., and has no problem supervising L.H. She testified that L.H. stays at her house on the weekends that T.W. visits. She testified that her son is a registered sex offender who was convicted of indecency with a child. She understands that her son living on her property impacts her ability to have T.H. placed with her. She testified that she did not believe that her son was guilty of the crime and that he had been set up by his ex-wife. She explained that she did not see her son much, and he is not around the children because he does not want to be accused of anything. She testified that she would have her son move if that was the only concern the judge had about placing T.H. with her. According to her, it would not be in T.H.'s best interest for L.H.'s rights to be terminated because T.H. loves her mother. She agreed, however, that if L.H. was still in a relationship with W.H., L.H.'s rights should be terminated.
P.R., another of L.H.'s aunts, testified that she has had custody of L.H.'s son, M.W., for eleven years and that L.H. agreed to give her custody of M.W. P.R. testified that when she received custody of M.W., L.H. was on drugs and had abandoned M.W. P.R. explained that L.H. has improved over the years and is now allowed to have unsupervised visitation with M.W. According to P.R., it would not be in T.H.'s best interest to terminate L.H.'s rights. P.R. testified that T.H. should be placed with the aunt so T.H. could be with the family. P.R. explained that the aunt's son stays away from the children. P.R. also testified that she would take T.H. in her home.
M.W., L.H.'s sixteen-year-old son, testified that he sees L.H. mostly on weekends. M.W. testified that L.H. had never been violent with him or his sisters. M.W. testified that the last time he saw T.H., T.H. told him that her foster parents were mean to her and that T.H. wanted to live with the aunt. According to M.W., L.H. stays at the aunt's house sometimes and goes to her boyfriend's house to get clothes. M.W. explained that he considered the aunt's house as L.H.'s house.
The trial court found, by clear and convincing evidence, that L.H. had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of T.H., and that termination of L.H.'s parental rights was in the best interest of T.H. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(O), (2). The trial court appointed the Department as the managing conservator of T.H., and instructed the Department to maintain contact with T.H.'s siblings.
ANALYSIS
In issues two and three, L.H. contends that the evidence is legally and factually insufficient to show that (1) she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of T.H., and (2) terminating her parental rights was in the best interest of T.H. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(O), (2). Because issues two and three involve sufficiency of the evidence, we address them first.
Under legal sufficiency review, we review 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 the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, the evidence is legally insufficient. Id.
Under a factual sufficiency review, we must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. We 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.
The decision to terminate parental rights must be supported by clear and convincing evidence, i.e., "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 2014); In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed one or more predicate acts or omissions and that termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2016); see also J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is supported by legally and factually sufficient evidence and the best interest finding is also supported by legally and factually sufficient evidence. In the Interest of C.A.C., Jr., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.). The court need not consider any excuses offered by the parent for failure to comply with court-ordered services. In the Interest of J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.).
Section 161.001(b)(1)(O) allows for termination if the trial court finds by clear and convincing evidence that the parent has "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department[.]" Tex. Fam. Code Ann. § 161.001(b)(1)(O). Regarding the child's best interest, we consider a non-exhaustive list of factors: (1) desires of the child; (2) emotional and physical needs of the child now and in the future; (3) emotional and physical danger to the child now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the child; (6) plans for the child by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam. Code. Ann. § 263.307(b) (West Supp. 2016). No particular Holley factor is controlling, and evidence of one factor may be sufficient to support a finding that termination is in the child's best interest. See In the Interest of A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). The best interest determination may rely on direct or circumstantial evidence, subjective facts, and the totality of the evidence. See In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).
Viewing the evidence in the light most favorable to the trial court's finding under subsection 161.001(1)(O), we conclude that the trial court could reasonably conclude and could reasonably have formed a firm belief or conviction that L.H. failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of T.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); N.R.T., 338 S.W.3d at 677.
In regard to the Holley factors, L.H. maintains that there was no evidence referring to T.H.'s desires or showing that L.H. would not have been able to parent T.H. and to provide stable housing in the future. L.H. argued that while she was not able to meet T.H.'s needs in the immediate future because of L.H.'s cancer treatment, T.H.'s needs could have been met if T.H. had been placed with L.H.'s relatives. L.H. maintained that she planned to have T.H. live with relatives until her treatment was completed, and L.H. planned to move in with T.H. after T.H. was placed. According to L.H., there is no evidence of any acts or omissions by her indicating an improper relationship with T.H., and there was no evidence that L.H. knew or should have known that W.H. had molested T.H.'s sister. L.H. further argued that there was no evidence showing that T.H. was in any emotional or physical danger because L.H. reported W.H.'s activity as soon as she discovered it and he was no longer in the house. L.H. maintained that she had completed all of the requirements under the family service plan except for finding stable housing, and that was due to L.H.'s father's untimely death.
With respect to the best interest finding, the trial court heard testimony from Sykes that it was in T.H.'s best interest to stay in her current placement and to continue visitation with her siblings. Sykes explained that in making the Department's recommendation, she considered that L.H. had maintained communication with W.H. during his incarceration. The trial court also heard Jackson, Sykes's supervisor, testify that termination was in the best interest of T.H. because there were no family members who would be an appropriate placement, and because T.H. had expressed a desire to stay at her current placement. The trial court heard testimony that T.H. was doing well in her placement and that her CASA representative recommended that T.H. stay with her foster parents. T.H.'s CASA representative also testified that it was in T.H.'s best interest that L.H.'s rights be terminated because T.H. needed stability, structure, and a place to feel safe.
The trial court also heard testimony from three of L.H.'s family members who testified that T.H. should be placed with family, but they did not recommend placing T.H. with L.H. One of L.H.'s aunts testified that L.H.'s rights should be terminated if L.H. was still in a relationship with W.H.
"[T]he 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). As the sole judge of the credibility of the witnesses and the weight to be given to their testimony, the trial court could reasonably conclude that termination of L.H.'s parental rights was in the best interest of T.H. See id. §§ 161.001(b)(2), 263.307(a); see also J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72. We conclude that the Department established, by clear and convincing evidence, that L.H. committed the predicate act enumerated in section 161.001(b)(1)(O) and that termination of L.H.'s parental rights is in the best interest of T.H. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2); C.A.C., Jr., 2011 WL 1744139, at *1. We overrule issues two and three.
In issue one, L.H. argues that the trial court abused its discretion by refusing to interview T.H. in chambers. The record shows that at the close of the evidence, T.H.'s attorney ad litem advised the trial court that she had filed a motion for the trial court to interview T.H., who was nine years old, but that T.H. had not asked to speak directly with the court. The trial court asked for the parties' opinions, and L.H.'s counsel stated that she trusted the trial court's judgment, but also expressed concern regarding T.H.'s maturity. The Department objected due to T.H.'s age. The trial court, noting that the Texas Family Code makes it discretionary as to whether a child under the age of twelve is to be interviewed by the court, denied the request. At that point, none of the parties objected to the trial court's ruling.
Because the trial court was acting within its clear and unambiguous statutory discretion when it denied the request to interview T.H, a child under twelve years of age, we conclude the trial court did not abuse its discretion. See Tex. Fam. Code. Ann. § 153.009(a) (West 2014) (stating that on the application of the attorney ad litem of the child, the trial court may interview in chambers a child under twelve years of age). We overrule issue one. Having overruled all of L.H.'s issues on appeal, we affirm the trial court's judgment.
AFFIRMED.
/s/_________
STEVE McKEITHEN
Chief Justice Submitted on September 12, 2017
Opinion Delivered October 26, 2017 Before McKeithen, C.J., Kreger and Johnson, JJ.