Summary
noting prior to children's removal, parent placed children, and allowed them to remain, in an unsanitary home
Summary of this case from In re K.S.O.B.Opinion
No. 06-16-00075-CV
03-16-2017
IN THE INTEREST OF G.M.G-U., L.E., F.A.G., AND E.E.G-U., CHILDREN
On Appeal from the 196th District Court Hunt County, Texas
Trial Court No. 82514 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
On October 22, 2015, Tanya's four children, Gabbie, Lana, Freddie, and Eban, were removed from her care under the emergency provisions of the Texas Family Code. See TEX. FAM. CODE ANN. § 262.104 (West Supp. 2016). After a Hunt County jury found that grounds existed to terminate the parental rights of Tanya and the children's fathers, the trial court entered an order terminating (1) Tanya's parental rights to her four children; (2) Antonio's rights to his children, Gabbie, Freddie, and Eban; and (3) Marco's parental rights to his child, Lana. Tanya and Antonio appeal the trial court's order terminating their parental rights.
Tanya's fifth child, Anita, who was born after the other children were removed from the home, was not a subject of this proceeding.
We refer to the children, their parents, their other relatives, and their foster parents by fictitious names to protect the privacy of the children. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
On appeal, Tanya contends that the evidence is legally and factually insufficient to support the jury's findings that any statutory grounds for the termination of her rights existed. Both Tanya and Antonio contend that the evidence is legally and factually insufficient to support the trial court's findings that termination was in the best interests of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016). Finally, both Tanya and Antonio assert that the trial court erred in admitting hearsay evidence of abuse by Antonio. We affirm the trial court's judgment because we find (1) that sufficient evidence supports at least one finding of a statutory ground for termination of Tanya's parental rights to the children, (2) that sufficient evidence supports the trial court's finding that termination of Tanya's and Antonio's parental rights was in the best interests of the children, and (3) that any error by the trial court in admitting hearsay evidence was harmless.
The trial court's order terminated her rights based on grounds (D), (E), and (O) of Section 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016).
I. Evidence at Trial
A. Events Prior to Removal
1. CPS Investigator Tabitha Sims' Testimony
The evidence showed that, when the children were first removed from Tanya's care, she and her four children were staying at a three-bedroom house also occupied by her brother, Ken, her sisters, Sybil and Debbie, Debbie's child, and Sybil's three children. Tabitha Sims, an investigator for Child Protective Services (hereinafter CPS or the Department), testified that, on Thursday, October 22, 2015, she went to the house on Pickett Street in Greenville (the Pickett Street house). Sims testified that there was no running water and no water meter at the house and that the only source of electricity was an extension cord that ran from a neighbor's house to a single light. She also testified that the toilet tank was dry and that the toilet was full of feces and urine. The whole house smelled of urine and feces. There was one couch and only one bed in the house, which was a single twin mattress on the floor. She testified that there did not appear to be any other sleeping arrangements in the house, other than clothes on the floor that appeared to have been slept on.
According to Sims, Lana was drinking soda out of a baby bottle that appeared to also contain dirt and mold. Eban, who was eight months old at the time, had no formula, and Tanya told her that she was feeding him whole milk and food. However, Sims did not find any baby food in the house, only five cans of green beans and baked beans that had been pried open and sat on the kitchen counter. She testified that all of Tanya's children were filthy and smelled of vomit, urine, and sour milk. Gabbie's clothes were filthy and her panties and socks were so black and brown, all of her clothes had to be thrown away after she came into CPS' care. She said that the children did not appear to have been bathed in the last week. Sims testified that, when the children came into the care of CPS, they were immediately bathed and fed and that the children ate everything. She opined that the conditions she found in the house, including the food being fed to the children, were not safe and endangered the children's physical and emotional well-being.
Photographs of Lana drinking out of the bottle, as well as other photographs of the conditions of the house and children, were entered into evidence.
Tanya initially told Sims that she had just arrived at the house the night before and that she was waiting for her husband to pick her up. When it was discovered that there was no formula in the house, Tanya said that Antonio was supposed to wire her some money for gasoline and formula. Sims obtained contact information for Antonio from Tanya and went outside to call him.
Sims testified that Antonio told her that Tanya had texted him on the previous Monday and stated that she was leaving Lufkin, where they had lived, and had no intent to return. Antonio said that, when she left, she stole his vehicle. Antonio also told her that Tanya had asked for money for gasoline and formula, but that he was not planning on coming to Greenville or wiring her money to buy those items. Sims said that Antonio also told her that a friend had called him that morning and told him that there was no refrigerator, electricity, or running water at the house where Tanya and the children were staying.
2. Tanya's Testimony
Tanya testified that she and her children had been at the Pickett Street house for three days. She denied leaving Antonio or intending to divorce him. Rather, she said she came to Greenville to help her sisters with transportation and intended to stay a week. Although Eban normally consumed forty ounces of formula a day, Tanya said she only brought one twenty-four-ounce can of formula with her from Lufkin and had bought two cans in Greenville. When she ran out of formula, she gave him a little bit of whole milk. She admitted that, when Sims came to the house, she was out of both formula and whole milk. She explained that she had run out of money, but that she had texted Antonio that day to send money for formula and gasoline to get back to Lufkin and planned to return the same day that Sims had come to the house.
Tanya admitted that the house did not have electricity, natural gas, or a refrigerator, but claimed that it did have running water, although there were plumbing problems. She also claimed that she had given the children sponge baths with cold water and that they were not dirty. She agreed that it is not safe and appropriate to have children in a house with a toilet full of feces and no utilities and that it was a poor decision to have her children at the house.
Tanya and her family had moved back and forth between Pennsylvania and Texas several times. She admitted that, in 2010, CPS had opened a case on her family because she had a child by Antonio when she was sixteen and her mom was allowing him to live with them. She said she lived with Antonio continuously except for two periods of time when he was deported.
While in Pennsylvania in 2012, she met Marco and had Lana as a result of their relationship. In June 2015, Antonio and Tanya were married in Pennsylvania, and they returned to Texas in September 2015, when Antonio was transferred with his company. She testified that they rented a three-bedroom trailer in Lufkin, that Antonio was paid in cash, and that they had no bank accounts.
On cross-examination by the children's attorney ad litem, Tanya initially denied saying on October 11, 2015, that she was getting a divorce and that she was single and loving it. After the attorney ad litem introduced two screenshots of Tanya's Facebook page from that date in which she posted that she was getting a divorce, that she was done with Antonio, and that she was single and loving it, Tanya admitted that she had posted those things, but claimed she did not mean them.
3. Antonio's Testimony
Antonio testified that he is currently serving a sentence for sexual assault of a child, which arose from his original relationship with Tanya in 2010 when she was sixteen and he was about twenty-three. He said he originally received deferred adjudication community supervision, but that supervision was revoked in November 2015, when he was adjudicated and sentenced to serve four years in prison. Copies of the order of adjudication, the motion to revoke deferred adjudication community supervision and request for final adjudication, and the judgment adjudicating guilt were entered in evidence. The judgment adjudicating guilt showed that Antonio's community supervision was revoked because of his numerous violations of the terms and conditions of his community supervision.
Antonio was arrested at the first hearing after the children were removed.
Antonio also testified that he is from Guatemala and that he entered the country illegally. He originally went to Pennsylvania, but moved to Texas with Tanya and lived with her and her parents. He was stopped on a traffic violation and was deported, but illegally entered the country a second time and again lived with Tanya and her parents. He was deported again after he received deferred adjudication. He then illegally entered the country a third time and now has an immigration hold, so he will be returned to Guatemala once he serves his prison sentence. He admitted knowing that by entering the United States illegally, he could be deported again and that this would be disruptive to his family.
Antonio acknowledged that he was contacted by CPS on October 22, 2015, but denied that he told Sims that Tanya had left him, took his vehicle, and was not coming back. He also denied saying that he was not going to give Tanya money for formula and gasoline. He claimed that, before his arrest, he was making $1,500.00 to $2,000.00 per week from his job and was supporting his family.
B. Post-Removal Events
1. CPS Caseworker Naomi Wade's Testimony
Naomi Wade, a CPS caseworker, was assigned to this case in March 2016. She testified that before she was assigned to the case, Tanya had completed some of the requirements of her service plan, including parenting classes, individual counseling, a psychological evaluation, and random drug testing. The service plan also required Tanya to demonstrate that she could maintain stable employment and housing, to obtain a Texas driver's license, and to participate in family counseling and domestic violence education.
Wade scheduled a parent presentation where Tanya could tell CPS personnel, the Court-Appointed Special Advocate (CASA) volunteer, and attorneys involved in the case what services she had completed, what she had learned, and on what she was still working. The goal of the parent presentation was to determine what would be different if the children were returned to the home and to determine if the children could be returned under monitored conditions. Wade testified that the presentation occurred on April 27, 2016, and that they learned that Tanya had completed some services, but that she was unable to communicate what she had learned in the parenting classes or what issues she was working through in individual counseling. They also learned that she was still residing in the Pickett Street house with Sybil, Ken, and her parents when they were not on the road.
Wade also testified that Tanya's mother had moved into the Pickett Street house to get the utilities turned on and to pay the bills and that she moved out of the house in late June. Testimony showed that by mid-July, the electricity had once again been turned off at the house as a result of non-payment and that Tanya and her siblings had moved from the house when they could not make the rent payment. Wade went to the Pickett Street house on July 14 after Tanya cancelled her scheduled visitations with her children. The outside temperature was ninety-seven degrees, and Tanya and her infant daughter, Anita, were inside the house. Wade testified that the inside of the house felt even hotter than the outside.
Tanya told Wade that the electricity had been off for a week and that they were taking the kids' furniture to her parents' house in Commerce. Anita was five months old at the time, and Tanya gave Wade the impression that they had been living at the Pickett Street house without electricity, even though there were two other houses with utilities where they could stay. She testified that it was dangerous to leave an infant in those conditions and that it was particularly concerning that nine months into the case, Tanya and her child were living in the same conditions that prompted the removal of the other four children.
Wade also testified that Tanya claimed to have moved into a house in Commerce with Sybil, Ken, and her parents. Wade testified that she went to the Commerce house on several occasions at different times of day and on weekends and that no one answered the door. She also talked to the neighbors, who indicated that no one was living in the house. Wade also testified regarding her concerns that Tanya would be living with her parents. She testified that whereas Tanya, Sybil, and Ken had been cooperative before their mother moved into the Pickett Street house, when their mother was present, everything changed, nothing was taken seriously, and there did not seem to be an understanding or acceptance of CPS' concerns.
Wade also testified that Tanya's mother does not understand CPS' concerns. Wade explained that Tanya's mother had a CPS case from 2010 regarding Tanya and her siblings and that she did not seem to grasp the concerns of that case either. Wade said that every interaction with Tanya's mother had been very hostile and that it had been very difficult to reason with her and to explain CPS' concerns and what needs to be done to enable the children to return.
Although Tanya obtained a job at Hacienda Carwash in April, Wade testified that her monthly income was a little over $500.00. That was not enough to meet Tanya's claimed monthly expenses of $873.00, which did not include clothes, diapers, or other necessities for her children. Wade testified that Tanya had not demonstrated that she could support herself or even one child.
Although Wade admitted on cross-examination that Tanya received Temporary Assistance for Needy Families (TANF), food stamps, and Medicaid and that these items were not included in her monthly income, Tanya's claimed expenses did not include items covered by these assistance programs. Also, there was no testimony as to the amount of money Tanya received through TANF or whether this assistance would be ongoing.
Wade also testified that, at the parent presentation, Tanya said she was going to stay married to Antonio and had no plans for a new relationship. As a result, she would not answer any questions regarding what would be appropriate in a new relationship with children in the home. Nevertheless, less than a month later, when Wade visited the Pickett Street house, Tanya had hickeys on her neck. She said that, when she inquired about them, Tanya and her sisters laughed a lot about it, even though she tried to explain CPS' concern about strange men being in the house or her being in a relationship with them. Tanya refused to give Wade the name of the man who gave her the hickeys to enable Wade to conduct a background check. At trial, Tanya identified the man and said that he had family on her street and that she began talking with him and had sex with him.
According to Wade, the children are now in a safe and stable environment and are very bonded to their foster parents. She testified that they are thriving and that their overall conditions have improved significantly. The evidence showed that, when Gabbie came into care, she had a number of cavities and other dental problems that required eight silver crowns, four fillings, two teeth extractions, and three root canal surgeries. Wade said that Gabbie has made a lot of improvement in school. Wade testified that Lana had a substantial speech impediment that has improved significantly.
Wade testified that all of the children now have a sense of security. She said that Gabbie may need ongoing therapy to process the trauma she has been through and that all of the children will have mental and physical needs that were not being met before, but are now being met. She testified that the children had been in a dangerous situation, but are safe now, that the foster family is active in church, and that the foster mom spends a lot of time with the younger children. She said that the children are in a stable home now where they feel secure and can thrive.
2. CASA Volunteer Anna Deusterberg's Testimony
Anna Deusterberg, the CASA volunteer for the children, testified that she had seen the children each month since November and that she had monitored eight of their visits with Tanya. She testified that the children are very happy in their foster home and that they go to parks, camping, and to the library. She said that the foster mother, Celinda, stays at home and that the foster father interacts well with the children, holding them and playing with them.
Deusterberg testified that Gabbie was behind academically at the beginning of the case, but that she has now graduated kindergarten in the top ten of her class. She said that Gabbie also did not know her ABCs, her numbers, or colors at the beginning. Gabbie told her that, when they were with Tanya, they did not always get to eat when they were hungry, they sometimes slept in different houses or the car, and they did not always have beds to sleep in.
Deursterberg also confirmed that Lana's speech had improved. She also said that, at first, Lana had a nervous twitch and seemed sad all the time, but that now she is happy and gets excited about every little thing. She testified that none of the children were current on their shots when they came into care. Deusterberg testified that Celinda reads to the children and works with them and that Gabbie, Lana, and Freddie are learning colors and numbers. She testified that the children are very bonded to their foster mother, that they tell her that they love Mama Celinda, and that Celinda loves them.
Deusterberg also testified that, at the beginning, Tanya did really well in meeting all of the children's needs at visitation. However, in the last four or five months, Tanya brought food, then sat in the rocking chair with whichever baby she had at the time, but did not get down and play with the other children. Deusterberg testified that CASA recommended termination based on the lack of commitment by Tanya to meet the needs of the children and her failure to attend all of the visits and opined that it would be in the best interests of the children. She also testified that she knew Antonio was in prison, that he had been sentenced to four years' incarceration, and that she did not think he would be a significant factor in the children's lives going forward.
3. Foster Parent Celinda's Testimony
Celinda, the foster mother, testified that, when the children came into their care, Eban was nine months old and Freddie was twenty months old. She said that, when he was fed, Eban would not know when he was done. Instead, as soon he finished one bottle he would scream for another one. Freddie was joyful most of the time, but whenever she told him no, he would slap her face and start kicking her. He would also take food in his mouth and hold it without chewing or swallowing it, and they would have to assure him that there was more food. She testified that both boys eat well now.
She confirmed that Gabbie needed dental work, that initially she had experienced academic challenges but had progressed, and that Lana's speech and vocabulary had significantly improved. She testified that the children are bonded to her and her husband and that they often run into the room from playing and jump in their laps to hug them. She said the children will randomly call out that they love them and that they will run to them to be comforted when they are hurt.
Celinda also testified that they work with Gabbie on her homework, that they review the concepts she is learning, and that they read as a family. She also testified that Gabbie had a lot of fear issues at first, including having nightmares, and that they have talked about what to do when she is afraid and about being in a safe environment. She said that Gabbie's nightmares have been reduced from three to four times a week to one a month. Finally, Celinda testified that her husband is a church administrator and that they live in a three-bedroom house with the five children. She said they have sufficient income to support the children and that they would adopt the children if they had the opportunity.
Anita had recently been removed from Tanya's care and placed in the foster home with her siblings.
4. Child Therapist David Sutton's Testimony
David Sutton, the children's therapist, began seeing the children the second week of March 2016. He testified that Gabbie says that she loves her mother and misses her, but that Lana does not talk about her mother or father unless asked. However, he said that all of the children are bonded to their mother. He also testified that at first Gabbie was like a parentified child who wanted to protect, explain, and care for the young children. He explained that a parentified child tries to parent the other children.
Although Sutton acknowledged that some protective behavior is normal for an older sibling, Gabbie's concern was that of a parent, not an older sibling. He explained that a child becomes parentified when their needs and the needs of their siblings are not being consistently met. Sutton also testified that Lana wants to stay with her foster family and that Gabbie will waver between wanting to stay with the foster family or with Tanya.
He testified that all of the children are bonded to their foster parents and grandparents, that they have a good relationship with Celinda, and that their needs have been met by her. He did not believe Gabbie felt safe with Tanya, relating that, when Anita came into the foster family's care, Gabbie whispered to her that she was going to be safe now. When he asked her why she said that, Gabbie told him that it was because they were not safe before and that they are safe now.
5. Family Counselor Janice Chapman's Testimony
Janice Chapman provided family counseling for Tanya, as well as for her sister Sybil. She first observed Tanya interact with the children at the end of May or the first of June 2016. She testified that Tanya handled the situation okay and that she did not see anything overly concerning on the first visit. However, she also said that Tanya was not quick to respond to the younger children and that Tanya suggested that Chapman attend to them first to lessen their trauma. Chapman also asked Tanya to work on being aware of the childhood developmental stages and pointed out that the younger children could not understand or do the tasks the older children were asked to do. She observed three visitations and did not see much progress at all, which caused her to believe Tanya was not trying to work on these things.
Chapman also testified that both she and the caseworker stressed to Tanya that she needed to make changes in the way that she made decisions, the way she communicated, and the way she related to her children, but that Tanya did not make those changes. She observed Tanya with her siblings and her mother and testified that there appeared to be a significant amount of enmeshment that was handicapping her. She explained that with enmeshments, an adult does not have the ability to evaluate situations and make appropriate decisions for themselves and depend on other people to make decisions for them. She testified that she talked with Tanya about this and that she needed to develop an independent life, but that Tanya was not willing to make a change.
Chapman also testified that she normally has twelve family counseling sessions with a client. However, Tanya failed to show up for two sessions in July, and Chapman discharged her, explaining that simply not showing up without attempting to reschedule is a blatant symptom of resistance to counseling.
6. CPS Conservatorship Supervisor Ann-Marie Jordan's Testimony
Ann-Marie Jordan, a conservatorship supervisor for CPS, also opined that termination of Tanya's and Antonio's parental rights was in the best interests of the children. She explained that the same situation that existed at the outset of the children coming into care was present in July and August 2016. Further, Tanya has not taken personal responsibility for her actions and decision-making. Jordan explained that the foster parents are very pro-active in identifying the specific needs of each of the children and getting them the help they need. She also testified that, although Tanya had family members that might be supportive, she avoids those family members and chooses family members who are not helpful in her decision-making and who create an antagonistic lifestyle for her.
Jordan also testified that the purpose of unannounced visits to a parent's home is to see how they are operating in their life. She noted that, when CPS made unannounced visits to the Pickett Street house, there was always someone at home. However, out of the ten unannounced visits to the Commerce house, including six made by her, there was never anyone at home. She acknowledged that she was able to see inside the house before anyone moved into it. Jordan testified that Antonio is not a suitable placement since the earliest he will get out of prison is April 2017, which is not a given, and the children would be in limbo until then. In addition, with his Immigration and Customs Enforcement (ICE) hold, if he is released in April, he will no longer be in the country.
7. Antonio's Testimony
Antonio testified that, although his release from prison date is April 2019, he will be eligible for parole next year when he has served half of his sentence. He admitted that he has not been before the parole board and that parole is not guaranteed. He also admitted that, even if he were given parole, he will no longer be in this country. He maintained, however, that he could still support his children and be a significant part of their lives. He said that whether he was in prison or in Guatemala, Tanya would have the children.
Antonio explained that his family owned a trucking company in Guatemala and that they wanted him to come back and run it since his father had died. He maintained that he made about $4,000.00 per month in Guatemala running the business and would be able to support Tanya and the children. He and Tanya plan to take the children there to live for a while after he is released from prison. Antonio also testified that he plans to sell some property he owns in Guatemala and that money would be sent to Tanya periodically for rent until he gets out of prison.
On cross-examination, Antonio admitted that he has not been able to send any money to Tanya since he went to prison. He also admitted that his plan for the children is based on his being released next year. Finally, he testified that, if something happened so that Tanya could not care for the children, either her parents or his sister, who lives in Nebraska, could care for them. He said that he spoke to his sister the night before he testified, but did not discuss the substance of that conversation.
8. Tanya's Testimony
Tanya testified that she moved from the Pickett Street house in July because they were behind on the rent. She claimed that she, Sybil, and Ken went to their mother's house in Commerce when the electricity was shut off at the Pickett Street house. She also claimed that when Wade came to the Pickett Street house in July, it was mid-afternoon, cool, and not a danger to Anita. Tanya testified that she does not pay rent or utilities at the Commerce house. She said it is a three-bedroom house, that two bedrooms are set up for her and Sybil's children, and that she, her siblings, and her parents will sleep in the parlor.
Tanya testified that when she had her children with her, she has worked at Hacienda Carwash since April and that she averaged $150.00 per week, got food stamps, and received TANF. She said she does not receive any money from Antonio's family, but that her brother and father helped with the bills. Tanya maintained that with regular payments from Antonio, her income, and government assistance, she would be able to support her children.
Although she testified that her Pennsylvania driver's license expired in January and that she did not have insurance for her car, she claimed that she was planning to get a Texas driver's license and insurance. She also testified that she had completed her parenting classes and that she had learned something from them, but did not explain what she had learned. She agreed with Antonio's plans for the children.
II. Standard of Review
"The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental right to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). Since the termination of parental rights implicates these fundamental interests, we require a higher standard of proof, i.e., clear and convincing evidence, by the trial court. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500. We construe involuntary termination statutes strictly in favor of the parent. In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (citing Holick, 685 S.W.2d at 20).
In order to terminate parental rights, the trier of fact must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). "Clear and convincing evidence" is that "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); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.
In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We assume the jury resolved disputed facts in favor of the finding, if a reasonable jury could do so, and disregarded evidence that the jury could have reasonably disbelieved or the credibility of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.
In our review of factual sufficiency, we give due consideration to evidence the jury could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine "whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." Id. at 108 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). "If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. In our deliberations, we make "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26). Nevertheless, we maintain our deference for the constitutional role of the jury. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). As the fact-finder, the jury is the sole arbiter of a witness' demeanor and credibility, and it may believe all, part, or none of a witness' testimony. H.R.M., 209 S.W.3d at 109.
Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).
III. Sufficient Evidence Supports Termination of Tanya's Parental Rights Under Section 161.001(b)(1)(D).
In her first point of error, Tanya contends that there was legally and factually insufficient evidence to find (1) that termination was in the best interests of the children or (2) that any statutory grounds supported termination of her parental rights. We will address the statutory grounds first.
The trial court terminated her parental rights under grounds (D), (E), and (O) of Section 161.001(b)(1) of the Family Code. "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 O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting A.V., 113 S.W.3d at 362); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.). When the trial court finds multiple predicate grounds, we will affirm if any one ground is supported by sufficient evidence. In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.).
Under ground (D), the trial court may terminate a person's parental rights if it is found that she "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). In making that determination, "we must examine the time before the [child]'s removal to determine whether the environment [of the home] posed a danger to the child's physical or emotional well-being." In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana 2015, no pet.) (quoting In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.)). "A child is endangered when the environment creates a potential for danger that the parent is aware of, but disregards." Id. (quoting In re N.B., No. 06-12-00007-CV, 2013 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem. op.)).
The child does not have to suffer actual injury; "[r]ather, it is sufficient that the child's well-being be jeopardized or exposed to loss or injury." In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.) (citing In re J.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ denied)). Moreover, parental rights may be terminated based on a single act or omission by the parent. L.E.S., 471 S.W.3d at 925 (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied)). "Unsanitary conditions can qualify as surroundings that endanger a child." C.L.C., 119 S.W.3d at 392 (citing Leal v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 315, 325 (Tex. App.—Austin 2000, no pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267 & n.39 (Tex. 2002); see also In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (holding that a mother endangered her children by allowing them to live in extraordinarily unsanitary conditions, which included roach infestation, garbage, and feces); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.) (allowing a child to live in unsanitary home that included roach and lice problems, animal feces, terrible odors, and general filth endangered child's physical well-being).
In this case, the evidence showed that Tanya allowed the children to live in a house that smelled of feces and urine, had no electricity or running water, had feces and urine standing in the toilet, and had no beds for the children. The evidence also showed that Tanya failed to provide adequate or appropriate food for the children. By Tanya's own admission, she had allowed the children to remain in those conditions for three days. Her Facebook posts indicated that it may have been up to ten days. Although Tanya denied it, Wade testified that the children were filthy and obviously hungry. In addition, one of the children was drinking soda out of a bottle that appeared to contain dirt and mold. In light of all of the evidence, we find that a jury could reasonably form a firm belief or conviction that Tanya knowingly placed or allowed the children to live in an environment that endangered their physical or emotional well-being. We find this evidence both legally and factually sufficient to support termination under ground (D).
IV. Sufficient Evidence Supports the Jury's Finding that Termination of Tanya's Parental Rights Was In the Best Interests of the Children
Tanya also challenges the sufficiency of the evidence to support the jury's finding that termination of her parental rights was in the best interests of the children. There is a strong presumption that it is in the child's best interest to remain with his or her parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re E.W., 494 S.W.3d 287, 300 (Tex. App.—Texarkana 2015, no pet.). "Termination 'can never be justified without the most solid and substantial reasons.'" E.W., 494 S.W.3d at 300 (quoting In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976))).
In determining the best interests of the child, courts consider the following Holley factors:
(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.In re N.L.D., 412 S.W.3d 810, 818-19 (Tex. App.—Texarkana 2013, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see E.N.C., 384 S.W.3d at 807; see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2016).
It is not necessary to prove all of these factors as a condition precedent to parental-rights termination. C.H., 89 S.W.3d at 27; N.L.D., 412 S.W.3d at 819. Evidence relating to a single factor may suffice in a particular situation to support a finding that termination is in the best interests of the child. In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (citing In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.), disapproved on other grounds by J.F.C., 96 S.W.3d at 267 n.39). When considering the child's best interest, we may take into account that a parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). We will discuss the relevant Holley factors.
The evidence showed that Lana expressed her desire to stay with her foster parents. Therefore, the first factor weighs in favor of termination as to Lana. The testimony was equivocal as to Gabbie, and Freddie and Eban were too young to express their desires. Because of a lack of evidence, the first factor is neutral as to Gabbie, Freddie, and Elan. See E.N.C., 384 S.W.3d at 808.
The evidence showed that Tanya was not able to financially provide for the children or to provide them with a stable and safe home. A parent is unable to provide for a child's emotional and physical needs when she is unable to provide for them financially or provide them with a stable and safe home. See In re H.B.C., 482 S.W.3d 696, 704 (Tex. App.—Texarkana 2016, no pet.); In re Z.M., 456 S.W.3d 677, 689 (Tex. App.—Texarkana 2015, no pet.). In addition, the testimony showed that Tanya failed to understand the emotional and physical needs of the children and refused to work with the Department's service providers to be able to meet these needs. Further, although Tanya completed some of her services, such as parenting classes, she never articulated or demonstrated by her changed actions what, if anything, she had learned in those classes. Finally, Tanya continued to demonstrate the same poor judgment, make the same bad decisions, and continue the same lifestyle as when the children were removed.
This indicates that, if the children were returned to her care, they would once again be placed in emotional and physical danger, and their emotional and physical needs would not be met. See H.B.C., 482 S.W.3d at 704. It is undisputed that the children are now in a safe and stable home with caring foster parents that recognize and address any emotional or physical danger to the children. Although the children came into their care with emotional and physical issues, the evidence showed that these issues were addressed, or are being addressed. Based on this evidence, the jury could reasonably form a firm conviction that Tanya would not meet the future emotional and physical needs of the children and that returning them to her care would endanger their emotional and physical well-being. The second, third, and seventh Holley factors weigh in favor of termination.
It is undisputed that the foster parents have demonstrated parental abilities that meet the emotional, physical, and developmental needs of the children. As previously discussed, Tanya continued to make the same mistakes as before removal of the children, and she was unwilling to address her parental shortcomings. Although she attended parenting classes, she was not able to articulate, nor did she make behavioral changes that demonstrated, what she learned in those classes. The fourth Holley factor also weighs in favor of termination.
CPS plans to place the children for adoption by the foster parents. The evidence showed that the foster parents would be able to meet the physical, emotional, and developmental needs of the children, that the children love them, and that the children are thriving under their care. Tanya's stated plans were to receive support from Antonio in an undetermined amount, to live with her parents and siblings until Antonio is released from prison, and then move to Guatemala with the children. Since Antonio has not been supporting Tanya during the pendency of the proceeding and Antonio did not produce any witnesses or written agreement showing his family agreed to his plan for future support, the jury could have reasonably discounted his testimony that he would begin to support Tanya if the children were returned to her. Further, the jury could reasonably form a firm conviction, based on their past actions, that returning the children to live with Tanya, her siblings, and her parents would place them in an unstable and possibly dangerous home. This factor weighs in favor of termination.
Tanya's unexcused acts and omissions both prior to, and after, removal also weigh in favor of termination. Prior to the removal of her children, Tanya placed them, and allowed them to remain, in an unsanitary home. In addition, the evidence showed that, prior to removal, she had neither met the extensive dental needs of Gabbie, nor provided her children with a safe and stable home.
After removal she chose to exercise the same bad judgment, continued the same lifestyle, and resisted making the changes necessary to obtain the return of her children. Further, Tanya offered no excuses for her acts and omissions. Although Tanya admitted at trial that she had made some bad decisions and assured the jury she had learned from her mistakes, the jury could reasonably believe that her post-removal actions belied her assurances. Based on this evidence, the jury could reasonably form a firm conviction that the parent-child relationship was not a proper one. The eighth and ninth Holley factors weigh heavily in favor of termination.
Considering the Holley factors, and in light of all of the evidence, we find that the jury reasonably could have formed a firm belief or conviction that termination of Tanya's parental rights was in the best interests of the children. Therefore, we find that the evidence was factually and legally sufficient to support the jury's best-interests finding. We overrule Tanya's first point of error.
V. Sufficient Evidence Supports the Jury's Finding that Termination of Antonio's Parental Rights Was In the Best Interests of the Children
In his second point of error, Antonio challenges the legal and factual sufficiency of the evidence supporting the jury's finding that termination of his parental rights was in the best interests of the children. Antonio does not challenge the sufficiency of the evidence supporting the termination of his rights under grounds (D), (E), and (Q) of Section 161.001(b)(1) of the Texas Family Code. Therefore, we need only determine whether the Holley factors favor termination of his parental rights.
There was no testimony regarding Gabbie's desire to return to her father, and Freddie and Eban were too young to express their desires. Because of a lack of evidence, this factor is neutral.
Regarding the second, third, sixth, and seventh Holley factors, the evidence showed that Antonio is serving a four-year prison sentence and that his release date is April 2019. Although Antonio testified that he is eligible for parole in April 2017, he admitted that there is no assurance that he will be granted parole. The evidence also showed that, since going to prison, he has not provided any support for Tanya or his children. Although he testified of plans to sell property he owned in Guatemala and that his family would send Tanya periodic payments to pay for rent at least until April, he did not provide any other evidence to show the value of the property in Guatemala or that his family had agreed to make these payments. As the sole arbiter of a witness' credibility, the jury could discount this testimony as conjecture, at best.
In addition, Antonio's plan for the children was for them to be in the care of either Tanya or her family. As seen above, the evidence supported a conclusion that this would have subjected the children to further neglect and endangerment. Further, the evidence showed that, even after Antonio had knowledge of the unsanitary conditions in which the children were living at the time of removal, he told Wade that he had no plans to remove them or to send money so Tanya could remove them and return to Lufkin. Although he disputed this testimony at trial, the jury could have chosen to believe Wade's testimony regarding what he told her at the time, rather than Antonio's trial testimony.
Although, at trial, Antonio also proposed his sister as a placement for the children, he had only talked to her the night before his testimony, and he offered no evidence that she would be a suitable placement for the children. We also note that Antonio argues in his brief that he suggested his family in Guatemala as a placement. However, we have reviewed Antonio's entire testimony, including the portions cited in his brief, and do not find any testimony in which he proposes his family in Guatemala as a placement for the children.
In addition, when she came into care, Gabbie suffered from significant dental issues and was a parentified child as a result of her parents' failure to consistently meet her needs and the needs of her siblings. Neither of these issues could have arisen in the short time Gabbie was solely in Tanya's care. Rather, this evidence indicates that the physical and emotional needs of the children were not being met while they were also under Antonio's care. Based on this evidence, the jury could have reasonably formed a firm belief or conviction that Antonio would not be able to provide the children financial support or a stable and safe home, that he would not meet the future emotional and physical needs of the children, and that his only plan for the children while he is in prison would endanger their emotional and physical well-being. The second, third, sixth, and seventh Holley factors weigh in favor of termination.
There was no testimony regarding Antonio's parenting abilities, and since he was in prison, he was not given a service plan. In addition, although there was some evidence of neglect, as discussed above, there was little other evidence on which a jury could have reasonably formed a firm belief or conviction that the existing parent-child relationship between Antonio and his children was improper. Therefore, the fourth and eighth Holley factors weigh against termination.
Considering the Holley factors, and in light of all of the evidence, we find that the jury reasonably could have formed a firm belief or conviction that termination of Antonio's parental rights was in the best interests of the children. Therefore, we find that the evidence was factually and legally sufficient to support the jury's best-interest finding. We overrule Antonio's second point of error.
VI. The Admission of Hearsay Evidence Was Harmless
In Tanya's second point of error, Tanya asserts that the trial court erred in admitting hearsay testimony regarding an out-of-court statement made by Gabbie to Wade. Tanya argues that the trial court erred in allowing Wade to testify that Gabbie told her that, on one occasion, her parents fought and that her father gave her mother a black eye. Tanya asserts, and the Department does not dispute, that the trial court allowed the testimony under the hearsay exception contained in Section 104.006 of the Texas Family Code. See TEX. FAM. CODE ANN. § 104.006 (West 2014).
Antonio also asserts this same error as his first point of error. However, as Antonio admits in his brief, only counsel for Tanya made an objection to the testimony at trial. Antonio does not contend, nor does the record reflect, that he joined in or adopted the objection. In order to preserve an error on appeal, "the record must show . . . that the complaint was made to the trial court by a timely request, objection, or motion." TEX. R. APP. P. 33.1(a)(1). Further, "one party may not use another party's objection to preserve an error where the record does not reflect a timely expression of an intent to adopt the objection." Daniels v. Yancey, 175 S.W.3d 889, 892 (Tex. App.—Texarkana 2005, no pet.) (citing Scott Fetzer Co. v. Read, 945 S.W.2d 854, 871 (Tex. App.—Austin 1997), aff'd, Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998)). Since Antonio neither made a timely objection at trial, nor adopted Tanya's objection, he has not preserved this point of error.
The record also appears to support Tanya's assertion. In overruling the hearsay objection, the trial court stated, "I will overrule the objection. In the Family Code[,] there is the exception for statement from a child regarding abuse or neglect."
Tanya makes two arguments regarding Section 104.006. First, she argues that no hearing was conducted outside the presence of the jury, as required by that section. See id. In addition, she argues that Section 104.006 does not apply since it only applies to statements made by a child that describes alleged abuse against that child. See id. The Department does not dispute that there was no hearing conducted outside the presence of the jury or that the Section 104.006 does not apply. Rather, it argues that Tanya's hearsay objection has not preserved her complaints under Section 104.006. The Department also argues that, if error was preserved, any error was harmless.
The Department has cited several opinions of our sister appellate courts in support of its argument that a hearsay objection does not preserve a Section 104.006 complaint on appeal. However, none of appellants in the cases cited by the Department argued that Section 104.006 did not apply. See In re G.P., No. 01-16-00346- CV, 2016 WL 6216192, at *27 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op.) (Section 104.006 complaint on appeal not preserved by Section 104.002 objection at trial); In re K.R., No. 10-14-00256-CV, 2015 WL 457944, at *1 (Tex. App.—Waco Jan. 29, 2015, no pet.) (mem. op.) (appellant only complained on appeal that no Section 104.006 hearing was held); In re E.R., No. 12-14-00171-CV, 2014 WL 6977810, at *7 (Tex. App.—Tyler Dec. 10, 2014, no pet.) (mem. op.) (same); In re J.N., No. 05-14-00558-CV, 2014 WL 4978656, at *1 (Tex. App.—Dallas Oct. 7, 2014, pet. denied) (mem. op.) (same); In re L.M., No. 10-11-00276-CV, 2012 WL 1123898, at *2 (Tex. App.—Waco Apr. 4, 2012, pet. dism'd w.o.j.) (same).
In this case, in addition to complaining that no hearing was held, Tanya argues that Section 104.006 does not apply. As the proponent of the evidence, once a hearsay objection was made, the Department had the burden to show that the testimony "fit within an exception to the general rule prohibiting the admission of hearsay evidence." Pjetrovic v. Home Depot, 411 S.W.3d 639, 647 (Tex. App.—Texarkana 2013, no pet.) (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004)). If the Department could not show that the testimony fit within an exception, then the testimony would be inadmissible as hearsay. See TEX. R. EVID. 802. Therefore, Tanya's hearsay objection was sufficient to preserve her complaint that Section 104.006 does not apply to this testimony.
Since her objection preserved this complaint, we need not determine whether Tanya's hearsay objection preserved her complaint that no Section 104.006 hearing was held.
A trial court's admission of evidence is reviewed for an abuse of discretion. Hydrogeo, LLC v. Quitman Indep. Sch. Dist., 483 S.W.3d 51, 55 (Tex. App.—Texarkana 2016, no pet.). A trial court abuses its discretion when it acts "without reference to any guiding rules or principles." Id. at 56 (quoting Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004)). We will affirm the trial court if there is any legitimate basis for its ruling. Id. (citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Generally, hearsay is not admissible unless allowed by statute or rule. TEX. R. EVID. 802. Section 104.006 contains an exception to the hearsay rule and provides that, if certain conditions are met, "[i]n a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence . . . ." TEX. FAM. CODE ANN. § 104.006 (Emphasis added). By a plain reading of the statute, the exception in Section 104.006 applies only to statements made by the child describing abuse against the child.
In this case, Gabbie's statement described abuse against her mother. Therefore, Gabbie's statement was not admissible under Section 104.006. The Department does not contest that the statement was hearsay and does not argue that it was admissible under any other exception to the hearsay rule. Neither are we aware of any exception that would make the statement admissible. Therefore, we find that the trial court erred in admitting the statement.
Nevertheless, the error by the trial court was harmless. We may reverse the trial court's judgment based on its erroneous admission of evidence only if the error "probably caused the rendition of an improper judgment." TEX. R. APP. P. 44.1(a)(1); Malone, 972 S.W.2d at 43. "Typically, a successful challenge to a trial court's evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted." Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
Tanya only argues that, since there was no other evidence of abuse, the statement likely had a significant influence on the jury by suggesting that she lived in an abusive home with Antonio. We disagree. First, the statement came in at the end of the attorney ad litem's examination of Wade. In addition, substantial evidence supporting the jury's findings in favor of the termination of Tanya's parental rights was presented to the jury through the testimony of various witnesses, both before and after the statement was elicited. Further, the Department and the attorney ad litem argued that much of the other evidence supported the termination of Tanya's parental rights, but neither of them mentioned any alleged abuse of Tanya by Antonio in their final arguments. On this record, we cannot say that the admission of the hearsay statement probably caused the rendition of an improper judgment.
We affirm the judgment of the trial court.
Ralph K. Burgess
Justice Date Submitted: February 15, 2017
Date Decided: March 16, 2017