Opinion
No. 07-17-00440-CV
04-27-2018
IN THE INTEREST OF A.G. AND A.G., CHILDREN
On Appeal from the 320th District Court Potter County, Texas
Trial Court No. 89,336-D, Honorable Don R. Emerson, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, D.G., appeals the trial court's order terminating his parental rights to his children, A.G. and A.G. We will affirm the judgment of the trial court.
To protect the children's privacy, we will refer to appellant and the children by their initials. TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b).
The mother voluntarily relinquished her parental rights to her children on the morning of trial. The trial court terminated the mother's rights on the basis of her affidavit of voluntary relinquishment. She has not appealed.
Background
This case involves a female child, A.G., nine years old by the time of the final hearing, and a male child, A.G., then six years old. The children have an older half-sister, A.E., who was a teen at the time of the final hearing.
The mother also voluntarily relinquished her rights to A.E. A.E.'s father voluntarily relinquished his rights before the final hearing in this case. Parental rights to A.E. are not at issue in this appeal.
The Texas Department of Family and Protective Services became involved with the family after allegations of neglectful supervision, domestic violence and drug use by both parents were reported. In November 2016, the Department filed pleadings that included an original petition for protection of a child, for conservatorship, and for termination.
About the time the Department became involved, D.G. voluntarily entered a rehabilitation facility for addiction to synthetic marijuana. D.G. remained in the facility for 28 days. In September 2016, the mother was admitted to a mental health facility after she attempted to commit suicide. When she left the facility, she failed to take her prescribed medication and continued to abuse methamphetamine.
The children were removed from the care of the mother and D.G. and placed in foster care. A.E. was placed with a maternal cousin and the younger two children were placed with a maternal aunt and her husband. The children remained in that placement at the time of the final hearing.
A final hearing was held in November 2017. Two counselors, a Department investigator, a Department caseworker, the children's foster father and D.G. testified. The main concerns in the hearing involved domestic violence and drug use.
After hearing the evidence, the court took the matter under advisement. A final written order was subsequently signed, reflecting that the trial court terminated D.G.'s parental rights to his two children based on a finding that clear and convincing evidence showed D.G. violated sections D, E, and O of section 161.001(b)(1) of the Texas Family Code. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West 2018). The trial court also found that clear and convincing evidence demonstrated that termination was in the children's best interest. TEX. FAM. CODE ANN. § 161.001(b)(2).
Appealing the order, D.G. challenges the legal and factual sufficiency of the evidence supporting the predicate grounds on which the trial court terminated his parental rights. D.G. does not challenge the trial court's finding with regard to the best interest of his children. We will therefore not discuss the evidence of best interest except as it pertains to our analysis of the sufficiency of evidence supporting the predicate grounds on which the court relied.
Analysis
Standard of Review and Applicable Law
The Constitution protects "[t]he fundamental liberty interest of natural parents in the care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established. TEX. FAM. CODE ANN. § 101.007 (West 2014); In re C.H., 89 S.W.3d at 25-26.
The Texas Family Code permits a trial court to terminate parental rights if the Department proves by clear and convincing evidence that the parent committed an action prohibited under section 161.001(b)(1) and termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to support an order 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 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.). Thus, a termination order may be affirmed if it is supported by legally and factually sufficient evidence of any statutory ground on which the trial court relied for termination, and the best interest finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).
Under the legal sufficiency analysis, we examine all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. However, we take into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, we must defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
Evaluation of the factual sufficiency of evidence supporting termination of parental rights requires "an exacting review of the entire record." In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual sufficiency review, we must give due consideration to the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We 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. In doing so 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. In re J.F.C., 96 S.W.3d at 266.
Subsection (D) permits termination of the rights of a parent who has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Among other findings, the trial court found D.G. knowingly placed or allowed A.G. and A.G. to remain in such conditions. Because only one statutory predicate ground is required to support termination, we will discuss only the sufficiency of the evidence demonstrating appellant committed acts described in section 161.001(b)(1)(D). In re A.V., 113 S.W.3d at 362.
Subsection (D) focuses on children's surroundings and environment, and requires for termination that their environment was endangering to their physical or emotional well-being. In re N.M.L., No. 07-17-00310-CV, 2018 Tex. App. LEXIS 607, at *114 (Tex. App.—Amarillo Jan. 19, 2018, pet. denied) (mem. op.) (citing In re B.S.T., 977 S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.)).
"Endanger" means to expose to loss or injury or to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment under subsection (D) may be established by evidence related to the child's environment. In re A.F., No. 14-17-00394-CV, 2017 Tex. App. LEXIS 9814, at *22 (Tex. App.—Houston [14th Dist.] Oct. 19, 2017, no pet.) (mem. op.) (citing In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)). "Environment" refers to the acceptability of living conditions, as well as a parent's conduct in the home. In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ). A child is endangered when the environment creates a potential for danger of which the parent is aware but consciously disregards. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). "Inappropriate, abusive, or unlawful conduct by a parent or other persons who live in the child's home can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection D." In re A.F., 2017 Tex. App. LEXIS 9814, at *22 (citing In re M.R.J.M., 280 S.W.3d at 502). Application of Law to Facts
Domestic Violence
In his brief, D.G. contends the evidence was insufficient under section 161.001(b)(1)(D) because there "is only one specific instance of abuse testified to [in] the record. This is A.E. relating that she had seen D.G. throw A.G. No other specific details are offered with regard to this incident." D.G. argues, therefore, that because there was insufficient evidence of abuse toward the children, the evidence did not support a finding that he knowingly placed or allowed his children to remain in conditions which endangered their physical or emotional well-being. We must disagree.
Although appellant may be correct that the record speaks of only a single act of violence directed at one of the children, his argument disregards the settled principle that conduct need not be directed at a child to create an endangering environment. See, e.g., In the Interest of H.L., No. 07-17-00070-CV, 2017 Tex. App. LEXIS 6533, at *13 (Tex. App.—Amarillo July 13, 2017, no pet.) (mem. op.) (citing In the Interest of S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.)).
Appellant's argument also is incorrect that A.E.'s report to her counselor provided the only details with regard to the incident in which D.G. "threw" his son. The counselor testified A.E. told her "[D.G.] threw A.G. down the hallway." The children's foster father also gave evidence concerning the incident. He testified to a conversation with A.G. in which the boy said, "daddy threw me across the room, and he hurt me." The witness continued, "And I said - - I just acknowledged that I understood and - - and he - - he mentioned that happened a couple times."
Several witnesses testified to instances of abuse and violence in the home. In his testimony, D.G. admitted there was domestic violence in the home and that it "went both ways." The Department's investigator testified the mother confirmed the allegations of domestic violence. The mother told her she and D.G. engaged in violence and that D.G. was the instigator. The investigator also testified A.E. told her the violence between her mother and D.G. "happened about twice a month."
The investigator described to the court an instance of domestic abuse as related to her by the children. The mother and D.G. had an argument "because [D.G.] wanted K-2 and [the mother] wouldn't buy him any. And then there was a nightstand that was thrown . . . . [The mother] grabbed a knife and tried to stab [D.G.] twice." A.E. "got in the middle of it and took the knife away from [the mother] and then, at that time, [the mother] was holding [D.G.'s] hair. And then [D.G.] had—head-butted [the mother's] chest at that time." She said A.E. stated she "punched [D.G.] a few times" to get him off her mother. The investigator testified the older A.G. told her that during the fight, the children "had to hide in the room, because they were scared, when they were fighting." The younger A.G. also described to the investigator the same fight. The child's counselor testified he "gave a secondary diagnosis of child physical abuse."
D.G. argues this case is analogous to In re A.S., 261 S.W.3d 76 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). We disagree, and find A.S. is not helpful to D.G. There, the court found the evidence insufficient to support termination based in part on domestic violence because there was no evidence the children were present or witnessed the violence. Id. at 85. In the case before us, all three children made statements indicating they were both present and witnessed violence between the parents. And both A.E. and the younger A.G. reported that D.G. threw the child.
A parent's violent or abusive conduct can produce an environment that threatens a child's well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); In re N.C.G., No. 07-17-00232-CV, 2017 Tex. App. LEXIS 10040, at *9-10 (Tex. App.—Amarillo October 25, 2017, no pet.) (mem. op.) (citation omitted); see In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). "Domestic violence, want of self[-]control, and propensity for violence may be considered as evidence of endangerment." In re N.C.G., 2017 Tex. App. LEXIS 10040, at *10 (citing In re J.I.T.P., 99 S.W.3d at 845); see In re N.M.L., 2018 Tex. App. LEXIS 607, at *14 (noting same).
The trial court could have taken the evidence before it as clear and convincing evidence that D.G. and the mother, by their violence against each other, created an environment that endangered the physical and emotional well-being of the children and that D.G. knowingly placed or allowed the children to remain in that environment. See In re A.F., 2017 Tex. App. LEXIS 9814, at * 27-28 (the evidence supported the trial court's finding that the mother "endangered the children for almost the entirety of their lives by exposing them to domestic violence and failing to maintain separation from [the father] with whom she engaged in domestic violence."). Drug Use
The trial court also heard evidence of D.G.'s drug use in the presence of the children. In his testimony, D.G. admitted to his drug usage, and that of the mother. Asked whether their drug usage was "a main cause" of the violence between the two, he agreed, "Yes, ma'am, obviously so."
The counselor and the investigator told the court that A.E. described the drug use by D.G. and her mother. The children were able to describe D.G.'s use of the K-2 and what he used to smoke it. The foster father testified the younger A.G. said that "mommy and daddy do drugs." The younger A.G. told the investigator his parents share a room and that is where D.G. "hides his weed." As noted, the children related that a fight erupted when the mother would not buy D.G. the K-2 he desired.
Although D.G. admitted to his drug use, he nevertheless argues on appeal that there is no evidence his drug use created an environment that endangered his children's physical or emotional well-being. The authority he cites, however, In re D.J.J., 178 S.W.3d 424, 429-30 (Tex. App.—Fort Worth 2005, no pet.), is readily distinguished. Unlike the father in D.J.J., who had "never seen or lived with" his son, id. at 426, D.G. acknowledged that his drug use contributed to the combative and violent environment he and their mother exhibited in front of the children. And the child D.J.J., when he was removed from his surroundings, "was well cared for and had been receiving proper medical care." Id. at 430. By contrast, the court here heard evidence that the children were not well cared-for by D.G. and the mother. The foster father told the court the children questioned whether they would go to school each day, and said their parents did not make them do so. There was testimony also of potential hearing loss in the younger A.G. because of a long-standing and apparently untreated ear infection, and of a persistent vision problem in his left eye that had since been corrected with glasses. The counselor noted speech issues with the child that may have stemmed from lack of stimulation. The child also had to repeat preschool. The foster father and the counselor testified to much improvement over the time the child had been with the foster family. The foster father also noted the older A.G. was somewhat delayed in her education, had repeated the second grade, and struggled with some subjects. She too had improved over the time with the foster family. In the context of the evidence the court heard, it could have inferred that drug use by D.G. and the mother contributed to their inability to properly care for the children, thus supporting a conclusion D.G. knowingly placed or allowed the children to remain in endangering conditions.
When viewed in the light most favorable to the trial court's finding, we conclude that the evidence is sufficient to have allowed a reasonable factfinder to have formed a firm belief or conviction that D.G. knowingly placed or allowed the children to remain in conditions which endangered their physical and emotional well-being.
Under a factual sufficiency analysis, we recognize that the trial court heard evidence that could be considered contrary to its finding. That evidence included D.G.'s testimony that he realized his relationship with the mother was "toxic" and that he ended the relationship. In his appellate brief, he says this realization came "within a month" of the Department "starting its investigation." That evidence also included D.G.'s testimony that, of his own accord, he entered and successfully completed a rehabilitation program. And, other than one positive drug screen, D.G. remained clean and sober, had three jobs over the course of the case and obtained housing, moving three times. He also visited regularly with his children and completed many of his services. But, he also acknowledged he "didn't complete a lot of the services because of my own actions." The evidence of D.G.'s commendable recent strides, however, does not diminish the clear and convincing evidence of the endangering conditions imposed on the children in the home prior to their removal, nor is that evidence so significant as to preclude the trial court's finding termination was warranted under subsection (D). See In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App. -San Antonio 2017, no pet.) (finding the period before the Department removed the child relevant to the determination of sufficiency of the evidence supporting statutory ground (D)).
As the finder of fact and sole judge of the credibility of the witnesses, the trial court has sole discretion to resolve evidentiary conflicts and is free to disregard any or all of a witness's testimony. In the Interest of S.A.H., 420 S.W.3d 911, 927 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Considering all of the record evidence in a neutral light, we conclude that the evidence is such that the trial court could reasonably form a firm belief or conviction of its finding of the statutory ground for termination under section 161.001(b)(1)(D). In re C.H., 89 S.W.3d at 25.
Accordingly, we resolve D.G.'s sole appellate issue against him.
Conclusion
Having overruled appellant's issue, we affirm the judgment of the trial court.
James T. Campbell
Justice