In re D.R.G.

State of Texas in the Eleventh Court of AppealsJan 6, 2016
No. 11-15-00159-CV (Tex. App. Jan. 6, 2016)

No. 11-15-00159-CV

01-06-2016

IN THE INTEREST OF D.R.G., A.J.G., A.G., AND A.G., CHILDREN


On Appeal from the 118th District Court Howard County, Texas
Trial Court Cause No. 49
,847

MEMORANDUM OPINION

This is an appeal from an order in which the trial court terminated the parental rights of the mother and the father to their four children: D.R.G., A.J.G., A.G., and A.G. The mother timely filed a notice of appeal; the father did not appeal. Appellant presents five issues on appeal. We affirm.

In her first four issues, Appellant challenges the legal and factual sufficiency of the evidence. The termination of parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015). To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(T) and that termination is in the best interest of the child. FAM. § 161.001(b).

After the final hearing in this case, the trial court found that Appellant had committed three of the acts listed in Section 161.001(b)(1)—those found in subsections (E), (N), and (O). Specifically, the trial court found that Appellant had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children, that Appellant had constructively abandoned the children, and that Appellant had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children, who had been in the managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent for abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant's parental rights would be in the best interest of the children.

With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (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 to promote the best interest of the child, (6) the plans for the child 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 that 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. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

The record shows that the Department removed the children in June 2014, when they ranged in age from four years old to nine years old. At that time, Appellant had left the children in the care of their father. The children were removed from the father's home due to abuse or neglect because they were not being fed or supervised. The children were out all day without supervision and had been going door-to-door to beg for food and money. The father drank alcohol and used illegal drugs in the home around the children.

Appellant was unavailable at the time of removal because she was "on the run" from law enforcement because of an outstanding warrant for a probation violation. She had moved to Colorado to avoid being arrested. Appellant testified that she left in April or May 2014, returned in November 2014, and was arrested in May 2015. At the time of the final hearing in June 2015, Appellant had not been released from jail but was permitted to be present in court for the final hearing. Appellant testified at trial and admitted that she had not seen the children for almost two years. She also admitted that she had previously spoken to the Department on the phone and had been told about the services that she was required to perform in order for the children to be returned to her. Appellant testified that she understood those requirements. Appellant, however, did not complete any of the required services. Importantly, she failed to obtain stable housing, failed to exercise any visitation with the children, and used illegal drugs while this case was pending.

By the time of the final hearing in this case, Appellant had been sentenced to serve 180 days in jail (with 97 days of credit) for manufacturing a controlled substance in a drug-free zone. The father did not appear for the final hearing as he was "on the run" from law enforcement at that time.

During part of this case, the children were placed with the maternal grandfather and his wife until the grandfather's health issues necessitated a different placement. The children were then removed at the grandparents' request and placed in foster care. At the time of trial, the children were doing well in foster care, were happy, were improving all the time, and were overcoming some behavioral issues. The foster home where the children lived at the time of trial was not an adoptive placement. At trial, the Department and the grandfather's wife expressed a desire for the children to be placed with family members. The children, particularly the older ones, expressed a desire to be returned to their father. The Department was exploring the various alternatives for family placement and encouraged continued visitation with the maternal grandfather and his wife.

The CASA case supervisor and the Department's conservatorship caseworker believed that it would be in the children's best interest for the parental rights of both parents to be terminated. Appellant did not believe that termination of her rights would be in her children's best interest.

Appellant argues in her second issue on appeal that, with respect to subsection (N), she did not abandon the children because she left them with their father and believed that they would be safe with him. In her third issue, Appellant argues that, even if she failed to comply with the trial court's order, a finding under subsection (O) cannot be upheld because the Department failed to prove by clear and convincing evidence that the children were removed from her due to abuse or neglect.

To comply with subsection (O), the Department need not prove actual abuse or neglect of the child at issue. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The court in E.C.R. held that "abuse or neglect" as used in subsection (O) "necessarily includes the risks or threats of the environment in which the child is placed." Id. Based upon the supreme court's interpretation of the words "abuse or neglect" as used in subsection (O), we hold that the children were removed for "abuse or neglect." See id. The parent who fails to comply with a court order as required by subsection (O) need not be the same parent whose abuse or neglect triggered the removal. In re D.R.J., 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013, no pet.). Thus, Appellant was required to comply with the provisions of the trial court's order and the family service plan, which specifically established the actions necessary for her to obtain the return of the children. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013); In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

The record contains clear and convincing evidence that Appellant failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children, who had been in the conservatorship of the Department for more than nine months and had been removed due to abuse or neglect. Clear and convincing evidence also reflected that the children had been removed due to abuse or neglect and that they had been in the care of the Department for over nine months. Consequently, we hold that the evidence is legally and factually sufficient to support the trial court's finding under Section 161.001(b)(1)(O).

The record also contains clear and convincing evidence that Appellant constructively abandoned the children. Under subsection (N), a parent constructively abandons a child if the child has been in the permanent or temporary managing conservatorship of the Department for at least six months, if the Department has made reasonable efforts to return the child to the parent, if the parent has not regularly visited or maintained significant contact with the child, and if the parent has demonstrated an inability to provide the child with a safe environment. The Department presented clear and convincing evidence as to each of the above elements. Appellant, despite the removal of her children due to abuse or neglect by the father and despite the Department's attempts to engage her in her service plan, chose to remain "on the run" and unable to provide the children with a safe environment.

We overrule the legal and factual sufficiency complaints presented by Appellant in her second and third issues. We also overrule the remaining "constitutional" contention presented by Appellant in those issues and in her fifth issue. Appellant argues in her fifth issue that her constitutional rights were violated because the trial court ignored the fact that the Department violated her rights by not providing her with adequate notice of the service plan and the petition, because the trial court deprived Appellant of the right to counsel during important phases of the case, and because the Department took advantage of Appellant's limited education.

First, we note that Appellant lodged no constitutional complaint at trial and, therefore, has not adequately preserved any such complaints for review on appeal. See TEX. R. APP. P. 33.1. Second, we observe that counsel was appointed to represent Appellant in June 2014 when the children were first removed from the parents' care. We note that that same attorney represented Appellant at trial and on appeal. Furthermore, the Department included Appellant, via telephone, in the family group conference in which the service plan was created. The Department's caseworker testified that she explained each and every item to Appellant over the phone and that Appellant indicated that she understood. Although Appellant dropped out of school in the eighth grade, nothing in the record indicates that the Department or the trial court took advantage of Appellant's limited education.

Because we find the evidence sufficient to support termination of Appellant's parental rights under subsection (N) and subsection (O), we need not reach her first issue in which she challenges the sufficiency of the evidence to support termination under subsection (E). See TEX. R. APP. P. 47.1. A finding that a parent committed any one of the acts under Section 161.001(b)(1)(A)-(T) is sufficient to support termination as long as termination is in the child's best interest.

In Appellant's fourth issue, she challenges the trial court's finding that termination of her parental rights would be in the best interest of the children. The record shows that the children wanted to be reunited with their father, who did not appear for the final hearing because he was "on the run" from law enforcement. The Department's goal for the children was for them to be placed with relatives and to continue their relationship with the maternal grandfather and his wife.

The record also shows that Appellant failed to visit the children and had not seen them in almost two years. In an effort to avoid arrest, Appellant voluntarily absconded from Texas and remained absent during most of this case. Appellant was finally apprehended about one month prior to the final hearing on termination. At trial, Appellant admitted that she had used illegal drugs while this case was pending and that she had been convicted of manufacturing a controlled substance in a drug-free zone. We note additionally that the trier of fact is the sole judge of the credibility of the witnesses at trial and that we are not at liberty to disturb the determinations of the trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573.

Based upon the Holley factors and the evidence in the record, we cannot hold that the best interest finding is not supported by clear and convincing evidence. See Holley, 544 S.W.2d at 371-72. Although the children did not want their parents' rights to be terminated and did not want to stay in foster care, the trier of fact could reasonably have formed a firm belief or conviction, based on the other Holley factors, that it would be in the children's best interest for Appellant's parental rights to be terminated. We hold that the evidence is both legally and factually sufficient to support the trial court's best interest finding. Appellant's fourth issue is overruled.

We affirm the trial court's order of termination.

JIM R. WRIGHT


CHIEF JUSTICE January 6, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.