Opinion
No. 01-02-00474-CV.
Opinion issued February 27, 2003.
Appeal from the 315th District Court, Harris County, Texas, Trial Court Cause No. 2000-07663J.
Panel consists of Justices TAFT, KEYES, and HIGLEY.
MEMORANDUM OPINION
We are asked to determine whether the trial court erred in terminating Monica W.'s parental rights to her children. In three issues presented for review, Monica challenges the legal and factual sufficiency of the evidence to support the trial court's findings that she endangered her children or allowed others to endanger them, and that termination was in the children's best interest. We affirm.
Factual Procedural Background
Monica first came to the attention of the Texas Department of Protective and Regulatory Services (TDPRS) when she herself was a 12-year-old child. After making a sexual abuse outcry, she spent about a year in foster care and was eventually raised by her grandmother instead of her mother. Monica gave birth to her first child when she was 14 years old. By the time she was 21, she had borne four more children, three of whom — C.M.W., E.D.W., and N.D.M. — are the subject of this appeal. In the past 10 years, TDPRS received eight referrals from relatives and school personnel concerning Monica's children. The complainants made different allegations at different times, including allegations of neglectful supervision, physical neglect, physical abuse, and sexual abuse.
After his stepfather broke his leg in 1992, E.D.W. was removed from his mother's care and placed in foster care; he was returned to his mother's care three years later.
The referral that ultimately led to the children's removal and the termination proceedings came in August 2000 from a school district coordinator who was worried about whether the children had enough food or a proper home environment. When a TDPRS caseworker investigated this referral, she discovered that Monica and the children were living with Monica's boyfriend, a registered sex offender. Monica did not want to go to a shelter with the children because she feared that they would be exposed to drugs there; instead, she asked the caseworker to make arrangements for the children to live elsewhere until she could stabilize her life.
Monica agreed to a family service plan that required her to undergo drug/alcohol and psychological assessment, attend parenting classes, attend individual and family counseling, obtain suitable housing, and obtain stable employment. She complied with part of this plan, but not with all of it. Most significantly, she had not obtained stable housing or employment at the time of the hearing. Eventually, TDPRS moved to terminate Monica's parental rights. After a bench trial, the trial court rendered a decree of termination and this appeal ensued.
Analysis
A trial court may order the termination of the parent-child relationship if the court finds, by clear and convincing evidence, that one or more of various acts enumerated in section 161.001(1) of the Family Code was committed and that termination is in the best interest of the child. Tex. Fam. Code. Ann. § 161.001(1) (Vernon 2002); Robinson v. Tex. Dep't of Protective Regulatory Servs., 89 S.W.3d 679, 686 (Tex. App.-Houston [1st Dist.] 2002, no pet.).
In its decree of termination, the trial court found by clear and convincing evidence that Monica had violated subsections (D) and (E) of section 161.001(1) because she (1) "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children"; and (2) "engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children." Based on these findings, the court determined that termination was in the best interest of the children.
See id. § 161.001(1)(E).
See id. § 161.001(2) (Vernon 2002).
Standards of Review
A parent's rights to "the companionship, care, custody and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397 (1982). In a termination case, the State seeks not just to limit those rights but to end them permanently — to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2002); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Because of the unique nature and value of parental rights, evidence supporting the findings to terminate parental rights must be clear and convincing, not merely preponderate. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); Harris v. Herbers, 838 S.W.2d 938, 941 (Tex.App.-Houston [1st Dist.] 1992, no writ). The clear and convincing standard 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 proved. Robinson, 89 S.W.3d at 685.
In a legal sufficiency review based on a clear and convincing standard of proof, we review all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 46 Tex. Sup.Ct. J. 328, 333 (Dec. 31, 2002). We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. at 334. This does not mean, however, that we must disregard undisputed facts that do not support the finding, because so doing could skew the analysis of whether there is clear and convincing evidence. Id.
In a factual sufficiency review based on a clear and convincing standard of proof, we must determine whether, based on the entire record, a fact-finder could reasonably form a firm conviction or belief that the parent endangered the child and that the termination of parental rights would be in the best interest of the child. In re C.H., 89 S.W.3d 17, 29 (Tex. 2002).
Statutory Grounds for Termination
In issues one and two, Monica challenges the legal and factual sufficiency of both of the statutory grounds under which her rights were terminated. We first address whether the evidence is sufficient to show that Monica knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(D). To "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). While "endanger" means more than a "threat of metaphysical injury or the ill effects of a dysfunctional family," it does not require that the conduct be actually directed at a child or that a child suffer an actual injury. Id.
Although Monica describes most of the trial testimony as hearsay, she made no hearsay objections at trial. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. See Tex.R.Evid. 802. Moreover, the witnesses were fully subject to cross-examination and their testimony could have been impeached or rebutted if it was unreliable. Accordingly, we examine all of the testimony. See In re K.C., Jr., 23 S.W.3d 604, 608 (Tex.App.-Beaumont 2000, no pet.).
The testimony consisted of the following:
• A school nurse (Sharlotte Hughes), a school counselor (Julie Desporte), and a school district family involvement coordinator (Mary Ann Martinez), all testified that the children were always dirty; had dirty hair and clothing; had poor hygiene and offensive body odors, to the degree that other children avoided or teased them; were often tardy or absent from school; were often very hungry and in search of something to eat, including asking to take food home; and were functioning academically at low levels;
• Martinez also testified that the mother's boyfriend smelled of alcohol early in the morning on more than one occasion;
• The children's therapist, Gayle Fuller, who was called as an expert witness, testified that the children had been exposed to pornographic videos; she stated her belief that what happened to the children before they were taken into custody was "devastating," and that it would take extended therapy to help them cope with it;
• A Children's Assessment Center forensic interviewer, Tammy Urban, testified that the children had been exposed to adult sexual behavior and that Monica had not protected the children from sexual abuse;
• The foster mother who cared for the children when they first came into care testified that the children's physical condition was bad when they arrived, and that the girls had impetigo, ringworm, and fungal infections. She also said the children used inappropriate abusive language with one another;
None of the foster mothers who testified were identified by name in the record.
• A second foster mother testified that C.M.W. and E.D.W. regressed after visits with Monica, wetting and soiling the bed; she testified the boys had told her they were disciplined by being locked in a closet with a rat;
• A third foster mother testified that N.D.M. has acted out in a sexually inappropriate way and has told her foster mother she has had sex with her brothers or one of their friends;
• Kathleen Forde, a Child Advocates volunteer assigned to work with Monica, testified that she initially believed Monica could reach the point where her children could be returned to her, but changed her mind after many months without significant progress. Forde testified that all of the children told her they had been abused by several of Monica's boyfriends. She corroborated the testimony from the boys' foster mother, and said that the boys would urinate or defecate on themselves when Monica tells them they will be coming home;
• Ernestine Hay, who led Monica's parenting classes, testified that Monica attended all of the classes and successfully completed the course; she believed Monica had learned adequate parenting skills by the end of the course. Hay also testified that Monica successfully completed alcohol/drug screening. Although Monica was expected to undertake individual counseling with Hay, she attended only two sessions before suspending the appointments;
• Sandra O'Brien, the children's TDPRS caseworker, testified that Monica did not obtain stable housing or employment despite agency assistance on both fronts and the understanding that these factors were critical to the children's return. She further testified that she believed Monica was in denial about her neglect of the children;
• Monica denied exposing her children to inappropriate sexual activity, denied that she sent the children to school in dirty clothes, and denied that there had been any physical abuse. Monica testified that she loved her children and had found a stable place to live with a friend named Dorothy, but was not able to provide the address or Dorothy's last name. She testified she had been working, but was unable to provide recent pay stubs. She successfully completed the parenting classes, moved out of her boyfriend's home because she did not want to expose her children to him, and attempted to create a new life in Georgia for the family. She also testified she was trying to find a better job.
In addition to the foregoing testimony, the record contains multiple volumes of exhibits repeating much of the testimony in written reports and assessments conducted while the children have been in foster care. E.D.W.'s need for speech therapy has abated, and the boys have begun to perform very well in school. N.D.M. no longer has nightmares and her tantrums are lessening. The trial court was able to review all of these records and to assess the progress the children have made since being placed in foster care.
After considering the record in its entirety, we conclude the evidence was legally and factually sufficient for the trial court to have reasonably formed a firm belief that Monica allowed her children to remain in surroundings that endangered their physical and emotional well-being. We overrule issue one.
Only one finding alleged under section 161.001(1) is necessary for a judgment of termination. Robinson, 89 S.W.3d at 686. Therefore, because we have concluded that the evidence is factually sufficient to support the trial court's findings under section 161.001(1)(D), we need not evaluate the sufficiency of the evidence under section 161.001(1)(E) and we decline to address issue two.
Best Interest of the Children
In issue three, Monica challenges the legal and factual sufficiency of the trial court's finding that termination would be in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(1). Some of the factors an appellate court may consider in ascertaining the best interest of a child include (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the children; (6) the plans for the children by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). "Best interest" does not require proof of any unique set of factors, nor does it limit proof to any specific factors. Id. The absence of evidence about some of these factors does not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest. Id. Evidence that is probative of acts or omissions under subsection 161.001(1) may also be probative in determining whether termination is in the best interest of the child. In re C.H., 89 S.W.3d at 28.
We first address Monica's contention that the evidence did not rise to the level of clear and convincing because only one expert testified regarding the children's best interest, and because the caseworkers and foster mothers were not qualified to recommend termination of the parent-child relationship. She cites no authority to suggest that TDPRS was obligated to offer testimony from more than one expert witness, or standing for the proposition that lay opinions should be disregarded, and we can find none. Moreover, she made no objection at trial to the admission of the expert or lay opinion testimony. Thus, any error in admitting this testimony was waived. See Tex.R.App.P. 33.1.
We now turn to the evidence regarding whether termination was in the children's best interest. In regard to the Holley factors, the record shows the following:
(1) Children's Desires
The boys have told Forde that they love their foster parents and do not want to return home. N.D.M. has not said she does not want to go home, but has said she is not ready to go home right now, and perhaps not a year from now. The children have all expressed their disappointment when Monica does not follow through with her promises to them.
(2) Children's Current and Future Emotional and Physical Needs
The children have substantial needs in addition to their basic needs for food, cleanliness, clothing, shelter, and appropriate supervision. They need ongoing psychological therapy because of what they have experienced in life, and E.D.W. may need additional speech therapy. N.D.M. takes several medications, including prozac for depression, adderal for hyperactivity, and zyprexa for improved mental health. Monica is currently unemployed, and her ability to generate the financial resources necessary to meet the children's needs is doubtful.
(3) The Emotional and Physical Danger to the Children Now and in the Future
The evidence shows that the children's emotional and physical needs were simply not met while they were in Monica's care, and that Monica chooses abusive boyfriends. There is little in the record to indicate that the danger to the children has abated, although Monica has taken parenting classes and is no longer living with a registered sex offender.
(4) Monica's Parenting Abilities
Monica successfully completed a parenting skills course and has expressed her love for her children. At the outset, she refused to take her children to a shelter because she wanted to protect them from drugs. However, O'Brien, the TDPRS caseworker, testified that she did not believe Monica learned anything from parenting classes or has accepted responsibility for the children's poor hygiene or exposure to adult sexual activity. She further testified that Monica does not know how to properly care for, protect, or provide stability for the children, and that the children would face the same dangers if returned to Monica that they did when they were removed from her care.
(5) Programs Available to Assist Monica to Promote the Best Interest of the Children
Monica has already been offered virtually every form of assistance from every agency available to provide it, including classes, therapy, and assistance with housing and employment, but has been unable to take advantage of it. Thus, the likelihood of her being able to take advantage of these in the future is doubtful.
(6) The Plans for the Children
Monica plans to find a job, move her children into the housing she shares with her friend Dorothy, and enroll the children in school; TDPRS plans to continue the children's current foster care placements.
(7) The stability of the home or proposed placement
It is not possible from this record to speak to the stability of the Monica's proposed home for the children because it is a new environment, but in the past, she has not stayed long in one place. In addition, the record reflects that she knows neither the last name of the woman with whom she is living nor the address. The children's foster parents have expressed their desire to provide care for the children indefinitely, but have also expressed their reservations if Monica's parental rights are not terminated because of the degree to which the children respond negatively to visits with their mother.
(8) Monica's Acts or Omissions that may Indicate that the Existing Parent-Child Relationship is not a Proper One
The record is replete with evidence indicating that Monica has not properly supervised her children in the past, which has resulted in harm to them. She also has not taken responsibility for her failings as a parent or indicated in what manner she will alter her parenting to protect the children in the future. She continues to break promises to her children and, even facing the threat of termination of parental rights, has been unable to comply with the service plan in the two most crucial areas — housing and employment.
(9) Any Excuse for Monica's Acts or Omissions
The record indicates that Monica's own upbringing did not properly prepare her for parenting, she is not particularly well educated, and she appears to have difficulty maintaining a job. These disadvantages make it very difficult for her to properly provide for the children, and her neglect may result from an absence of resources rather than resulting from indifference.
Aside from Monica's testimony on her own behalf, there were no witnesses called who could testify in support of her desire to retain her parental rights. In contrast, Forde, Fuller, O'Brien, and the three foster mothers all testified unequivocally that they believe termination is in the best interest of the children. The foster mothers expressed their willingness to provide continued foster care to the children, and TDPRS intends to maintain these placements. It is in a child's best interest to have continuity of care and caretaker. See Hann v. Tex. Dep't of Protective Regulatory Servs., 969 S.W.2d 77, 83 (Tex.App.-El Paso 1998, pet. denied).
In light of this record, we conclude the evidence was sufficiently clear and convincing that a factfinder could reasonably form a firm belief that termination of appellant's parental rights was in the children's best interest.
We overrule issue three.
We affirm the trial court's decree.