Opinion
NO. 12-11-00197-CV
04-30-2012
IN THE INTEREST OF E.J.F., A CHILD
APPEAL FROM THE 392ND
JUDICIAL DISTRICT COURT
HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
E.R.F. appeals the termination of his parental rights. In one issue, E.R.F. challenges the order of termination. We affirm.
BACKGROUND
E.R.F. is the father of one child, E.J.F., born February 1, 2010. T.D. is the mother of the child. On February 25, 2010, the Department of Family and Protective Services (the Department) filed an original petition for protection of a child, for conservatorship, and for termination of the parent-child relationship between both parents and the child. On March 9, 2010, the trial court ordered that the Department be appointed temporary managing conservator of the child. A trial began on May 26, 2011. At the conclusion of the trial on the merits, the trial court found by clear and convincing evidence that E.R.F. had engaged in one or more of the acts or omissions necessary to support termination of his parental rights, and that termination of the parent-child relationship between E.R.F. and E.J.F. was in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between E.R.F. and E.J.F. be terminated. This appeal followed.
On May 26, 2011, the trial court found by clear and convincing evidence that T.D. 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 T.D. and E.J.F. was in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between T.D. and E.J.F be terminated. T.D. is not party to this appeal.
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. 2011); In re J.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. 2011); 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. 2011); 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
When confronted by both a legal and a factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no pet.). Because termination findings must be based on clear and convincing evidence, the standard of review is not the same on appeal as a finding based upon a preponderance of the evidence. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Therefore, in conducting a legal sufficiency review, we 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 findings were true. Id. at 266. We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id. This does not mean that we are required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis. Id.
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 that in support of and contrary to the trial court's findings. Id.at 27-29. 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 at 266.
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)(Q)
As part of his first issue, E.R.F. argues that the evidence is legally and factually insufficient to support a finding that he knowingly engaged in criminal conduct that resulted in his conviction of an offense, and confinement or imprisonment and inability to care for E.J.F. for not less than two years from the date of filing the petition. Applicable Law
The court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has knowingly engaged in criminal conduct that has resulted in the parent's (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition. TEX. FAM. CODE ANN. § 161.001(1)(Q) (West Supp. 2011). Terminating parental rights under this subsection requires that the parent be both incarcerated or confined and unable to care for the child for at least two years from the date the termination petition is filed. TEX. FAM. CODE ANN. § 161.001(1)(Q)(ii); In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006). "[I]f a parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the [Department] may use subsection Q to ensure that the child will not be neglected." In re A.V., 113 S.W.3d 355, 360 (Tex.2003).
However, an appellate court should recognize that a two year sentence does not automatically meet subsection Q's two year imprisonment requirement. In re H.R.M., 209 S.W.3d at 108. In some cases, neither the length of the sentence nor the projected release date is dispositive of when the parent will in fact be released from prison. Id. Thus, evidence of the availability of parole is relevant to determine whether the parent will be released within two years. Id.at 109. Mere introduction of parole related evidence, however, does not prevent a fact finder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years. Id. Parole decisions are inherently speculative, and the decision rests entirely within the parole board's discretion. See id.; In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.— San Antonio 2004, no pet.) (stating that a father's "hope that he might be granted early release is pure speculation"); In re R.A.L., 291 S.W.3d 438, 443 (Tex. App.-Texarkana 2009, no pet.). If the mere possibility of parole prevents the fact finder from ever forming a firm belief or conviction that a parent will remain incarcerated for at least two years, then termination under subsection Q will occur only when the parent has no possibility of parole. In re H.R.M., 209 S.W.3d at 109. This would impermissibly elevate the Department's burden of proof from clear and convincing to beyond a reasonable doubt. Id.
Once the Department has established a parent's knowing criminal conduct resulting in his incarceration for more than two years, the burden shifts to the parent to produce some evidence as to how he will arrange to provide care for the child during that period. Hampton v. Tex. Dep't of Protective & Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004, no pet.); In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). When that burden of production is met, the Department is then required to persuade the court that the stated arrangements would not satisfy the parent's burden to the child. Hampton, 138 S.W.3d at 567; In re Caballero, 53 S.W.3d at 396. Analysis
At trial, E.R.F. admitted that he was convicted of manufacturing and delivery of a controlled substance on September 18, 2008. He was sentenced to five years of imprisonment, which was to commence on October 27, 2008. According to E.R.F., the trial court gave him five weeks to get his affairs in order. However, he failed to report to begin serving his sentence because his girlfriend was pregnant and sick. E.R.F. stated that when that child died shortly after birth, he "just didn't go back." On September 28, 2009, E.R.F. was convicted of unauthorized absence from a community corrections facility. He was sentenced to nine months in a state jail facility for this offense.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010).
See TEX. PENAL CODE ANN. § 38.113 (West 2011).
According to E.R.F., he has already discharged his state jail sentence and has served approximately half of his five year sentence as of January 2010. He testified that his discharge date is October 20, 2013, or more than two years from the date the termination petition was filed on February 25, 2010. See TEX. FAM. CODE ANN. § 161.001(1)(Q). He stated that he had been denied parole twice in this case, and that the parole board had until December 2011 to determine whether he would be granted parole. Although E.R.F. admitted that the parole board would "do what they [sic] going to do," he believed he would be paroled before his discharge date. From this evidence, a reasonable trier of fact could have formed a firm belief or conviction that E.R.F.'s hope that he would be paroled before the two year statutory limit was pure speculation. Thus, because the Department established that E.R.F.'s criminal conduct resulted in his incarceration for more than two years, E.R.F. was required to produce some evidence of how he would provide care for E.J.F. during that period. See Hampton, 138 S.W.3d at 567.
E.R.F. testified, at various times, that he has served twenty-six months, twenty-eight months, or thirty-one months "flat" towards his five year sentence.
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E.R.F. stated that he would like his mother, A.F., to care for E.J.F. if he was granted conservatorship of the child. He admitted that the Department found that his mother's home was not a proper placement for the child. However, E.R.F. stated that A.F. did not have any history with the Department, did not have a criminal history, and had a good job and home. She had taken care of his other children when he was incarcerated, and he believed her home was a safe environment for his child.
Susan Oxford, a family group conference coordinator with the Department, stated that A.F. had a criminal conviction for theft, two jobs, an appropriate home, and no history with the Department. However, Oxford stated that A.F.'s adult sons have a criminal history, A.F.'s income after bills is just over $100, and she planned to take the child to her security guard job on the weekends and nights. Oxford did not believe that A.F.'s security guard job would be a safe environment for a child.
Brandi Harris, a conservatorship supervisor with the Department, stated that she was concerned whether A.F. would be protective towards the child and keep the child safe because of her family history of criminal involvement. Vickie Sussen, the program director for CASA of Trinity Valley, stated that she did not believe A.F.'s home would be an appropriate place for the child.
A.F., E.R.F.'s mother, testified that she lives alone, and has two jobs. She is a kitchen director at an assisted living facility four days a week, and a security guard at a storage facility three nights a week. She believed her home was a safe environment, and that she made enough money to take care of the child. According to A.F., she would provide for the child if she had to, even if she had to quit one of her jobs and apply for assistance. She stated that there is a daycare facility near her home.
A.F. admitted that she went to jail approximately fifteen years ago for theft by check. She stated that she has four sons and admitted that they all have criminal records. A.F. testified that her children learned criminal behavior from the streets although she tried "everything she could" to keep them off the streets. However, she believed that her sons would be a good influence on the child because they were growing up and becoming very good young men. A.F. was unsure about the ages of her children, including E.R.F.
Viewing the evidence in the light most favorable to the finding, a reasonable fact finder could have formed a firm belief or conviction that E.R.F. was convicted of manufacturing and delivery of a controlled substance, that he was sentenced to five years of imprisonment, and that he had failed to report to begin his sentence, resulting in a conviction for unauthorized absence from a community corrections facility. A reasonable fact finder could have also determined that E.R.F. had already been denied parole twice, and that his discharge date was more than two years from the date the termination petition was filed. A reasonable fact finder could have concluded further that the Department determined from E.R.F.'s mother's home study that her home was not a proper placement for the child, that A.F. did not have sufficient income to take care of the child, that her family had a history of criminal behavior, and that she would not be protective towards the child and keep the child safe.
From this evidence, the fact finder could have formed a firm belief or conviction that E.R.F.'s belief that he would be granted parole before the two year statutory limit was unlikely at best, and that his mother was unsuitable to care for the child during that time. Therefore, we hold that the evidence, viewed in the light most favorable to the finding, was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief or conviction that E.R.F. knowingly engaged in criminal conduct that has resulted in his conviction of an offense, and imprisonment and inability to care for E.J.F. for not less than two years from the date of filing the petition.
Although there is conflicting evidence that E.R.F. might be granted parole by December 2011 and that A.F. would have been able to provide for the child with assistance, a reasonable fact finder could have resolved these conflicts in favor of its finding. Although there is some disputed evidence, 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 E.R.F. knowingly engaged in criminal conduct that has resulted in his conviction of an offense, and imprisonment and inability to care for E.J.F. for not less than two years from the date of filing the petition. Accordingly, the portion of E.R.F.'s first issue pertaining to whether he engaged in one or more of the acts or omissions necessary to support termination of his parental rights is overruled.
BEST INTEREST OF THE CHILD
As part of his first issue, E.R.F. also argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of the parent-child relationship is in E.J.F.'s best interest.
In determining the best interest of the child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate 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).
This list is not exhaustive, but simply indicates considerations that have been or could be pertinent. Id. However, the best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.-Fort Worth 2001, no pet.). The Holley test focuses on the best interest of the child, not the parent's best interest. Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ). While incarceration is a factor in determining the best interest of a child, it is not dispositive. In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.-Houston [1st Dist.] 2002, pet. denied). In determining the weight of this factor, the court should consider the expected length of an appellant's imprisonment and whether it can be inferred from an appellant's criminal conduct that he has endangered the safety of the child. Id. We will consider the Holley factors below. The desires of the children
E.J.F. was too young to testify regarding his desires. Sussen (the CASA program director) testified that the child was very happy in his foster home. E.R.F. stated that he believed the child needed to be with family, including the child's siblings. However, E.R.F. admitted that he had never met his child because he had been imprisoned before the child was born. The emotional and physical needs of the children now and in the future
E.R.F. stated that if he were paroled, he would support E.J.F. and his other two children by obtaining a job. He has previously worked at construction, manufacturing, television services, and landscaping. However, he admitted that the mothers of his two other children are caring for them. Oxford (a Department family group conference coordinator) and Sussen testified that E.R.F. cannot provide for his child at this time, including a home or support. The emotional and physical danger to the children now and in the future
When E.R.F. was told that E.J.F. was born with marijuana in his system, he stated that he was not aware that the child's mother was pregnant. He admitted that he has been convicted of three misdemeanors, including unlawfully carrying a weapon, driving while intoxicated, and possession of marijuana. Further, E.R.F. has been convicted of five felonies, including deadly conduct, possession of a controlled substance twice, manufacturing and delivery of a controlled substance, and unauthorized absence from a community corrections facility. All of these convictions occurred between 1999 and 2009. Although E.R.F. was granted community supervision for his deadly conduct offense, he violated the terms and conditions of his community supervision, resulting in his community supervision being revoked.
E.R.F. admitted that his other two children were born before he was convicted and incarcerated for manufacturing and delivery of a controlled substance, but stated that he was not with the children when he committed this felony. Although he realized that he endangered his children financially and emotionally when he decided to commit this felony, he had lost his job and the rent was due. Thus, he "had to do what [he] had to do." However, E.R.F. stated that he has family support now, and would not have to do so again. Oxford testified that the amount of time E.R.F. has left to serve on his sentence is not a short time in a child's life. The parental abilities of the parents seeking custody
E.R.F. stated that he has no prior history with the Department, having never been charged with physically abusing his children. He also stated that he has seen his other two children almost every week since being incarcerated. Oxford and Harris (a Department conservatorship supervisor) stated that E.R.F. has never been charged with abuse or neglect of E.J.F. because he has never met the child. However, Oxford stated that there is nothing to show that E.R.F. can support or meet his child's needs at this time or in the future. The programs available to assist the parents
Oxford admitted that E.R.F. has complied with the family plan, including maintaining contact with the Department, and providing relative options and a health, social, and genetic history. E.R.F. stated that he attended a "changes" class in prison that included parenting, drug rehabilitation, and anger management. The plans for the children by the parents
E.R.F. stated that if he were to be released from prison on parole, he would get a job to support his children and live with his mother. He stated that in the meantime, his mother could support the child. However, A.F. admitted that all of her four sons have a criminal history, including one with a conviction for a violent offense, and she may not have sufficient income to support the child. Further, she planned to take the child to her security guard job on the weekends and at night. The stability of the home
E.R.F. is incarcerated at present and his mandatory release date is in 2013, although he may be released earlier if he is granted parole. Moreover, there is no evidence that upon release from prison, he will have a stable home to offer the children. E.R.F. admitted being convicted of three misdemeanors and five felonies from 1999 through 2009. E.R.F. stated that if he were paroled, he would support E.J.F. and his other two children by obtaining a job and would live with his mother. He has previously worked at construction, manufacturing, television services, and landscaping. However, he admitted that the mothers of his two other children are caring for them. Oxford and Sussen testified that E.R.F. cannot provide for his child at this time, including a home or support. Harris stated that E.R.F. has no stability to offer the child. The acts or omissions of the parents that may indicate the existing parent-child relationship is not a proper one
E.R.F admitted that he has been convicted of three misdemeanors and five felonies between 1999 and 2009, resulting in multiple confinements and incarcerations. Further, he violated his community supervision once, and failed to report to prison for his five year sentence, resulting in another conviction. E.R.F. admitted being denied parole twice in this case. Although he could not predict the actions of the parole board, he believed he would be paroled before his discharge date. Any excuse for the acts of omissions of the parents
E.R.F. stated that he could be a better father if given a chance, and he believed that E.J.F. should know his father "no matter what." He also stated that before he committed the offense of manufacturing and delivery of a controlled substance, he had lost his job and the rent was due. Thus, he "had to do what [he] had to do." Then, he failed to report to begin serving his sentence because his girlfriend was pregnant and sick. E.R.F. stated that he "just didn't go back" when that child died shortly after birth.
Result of Holley Analysis
Viewing the evidence in the light most favorable to the finding, a reasonable fact finder could have concluded that E.R.F.'s home was unstable, that he cannot support his child now or in the future, that he did not realize the effect his behavior had on his child, that he had recently been denied parole twice, that he had violated his community supervision in the past, and that he had repeated convictions, confinements, and incarcerations. Considering all the evidence in relation to the best interest factors in the light most favorable to the trial court's finding, we conclude a reasonable trier of fact could have formed a firm belief or conviction that termination was in the best interest of the child.
Although there is conflicting testimony, a reasonable fact finder could have disregarded E.R.F.'s testimony that he did not jeopardize his children because none of his criminal activities were committed around them, that he would not do so again, that he had supported his other children in the past, and that he would be a better father if given a chance. A fact finder could have reasonably found that E.R.F. failed to be a part of this child's life through his continual convictions, incarcerations, and confinements, that he had little insight into how his criminal behavior affected the child, and that he cannot support the child now or in the future. Although there is some disputed evidence, 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 terminating E.R.F.'s parental rights is in the best interest of E.J.F. Accordingly, the portion of E.R.F's first issue pertaining to whether termination is in the best interest of the child is overruled.
DISPOSITION
Having overruled E.R.F.'s sole issue, we affirm the judgment of the trial court.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.