in the Interest of E.M.G., a Child ( 2018 )

Affirmed and Memorandum Opinion filed December 20, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00652-CV
IN THE INTEREST OF E.M.G., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2017-03688J
MEMORANDUM OPINION
This accelerated appeal arises from a final decree in a suit in which
termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann.
§ 109.002(a-1) (West Supp. 2018). The trial court terminated the parental rights of
W.M.K. (Mother) and M.G.L. (Father) with respect to their daughter, Evelyn,1 and
1
We use pseudonyms or initials to refer to the child, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d) (“On the motion of the parties or on
the court’s own motion, the appellate court in its opinion may identify the parties by fictitious
names or by their initials only.”); Tex. R. App. P. 9.8(b)(2) (in a case in which the termination of
parental rights was at issue, “the court must, in its opinion, use an alias to refer to a minor, and if
necessary to protect the minor’s identity, to the minor’s parent or other family member.”).
appointed the Texas Department of Family and Protective Services (the Department)
to be Evelyn’s managing conservator.
Only Mother appeals the trial court’s judgment. Mother challenges the factual
sufficiency of the evidence supporting the trial court’s finding that termination of
her parental rights is in Evelyn’s best interest. After reviewing the record evidence,
we conclude factually sufficient evidence supports the trial court’s finding that
termination of Mother’s parental rights is in Evelyn’s best interest. See id. §
161.001(b)(2). Therefore, we affirm the trial court’s judgment.
BACKGROUND
A. Evelyn’s Removal
The Department received a referral alleging that Evelyn, who was just under
two years old at the time, was being physically abused by Mother. Among other
things, the person making the referral stated that Mother regularly yells at Evelyn
and beats her daily. According to the referral, when asked why she was “going off”
on Evelyn, Mother responded that Evelyn knew “what she’s doing” and was “just
doing it to piss [Mother] off.” The referral stated that Evelyn cries daily and has
bruises up and down her legs. The referral also reported that Mother goes out every
night and there were concerns about possible sexual abuse. According to the referral,
Mother had a prior history with the Department, having tried to kill a Department
worker by choking the worker. Mother was convicted of a felony and served three
months in jail.
The Department assigned Dee Hull to investigate the allegation that Mother
was abusing Evelyn. Hull authored a removal affidavit recounting her investigation
of the referral. Hull reported that she arrived the next day at the house owned by
E.N., where Mother and Evelyn were living. Hull described the house as
uninhabitable with trash outside and leading into the open garage. Hull could see
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the first floor of the house and she saw numerous dogs and cats, as well as trash
strewn about. Hull also observed that the home was infested with fleas and smelled
of feces and urine. In Hull’s opinion, the home appeared to be that of a hoarder.
Mother came to the house’s door, but she refused to allow Hull to enter.
Mother also refused to provide Hull with her identification or telephone number.
When asked about Evelyn’s father, Mother declined to provide any information
beyond what she believed his first name was and his nationality. Mother then told
Hull that she had not seen Father for more than a year. After Hull informed Mother
of the reason for her visit, Mother refused to get Evelyn, went back into the house,
and closed the door.
B. The trial
The next day, the Department filed its Original Petition for Protection of a
Child for Conservatorship and for Termination in Suit Affecting the Parent-Child
Relationship and Application for Writ of Attachment asking, among other things, to
be named Evelyn’s temporary managing conservator. The trial court signed an order
appointing the Department Evelyn’s temporary managing conservator as well as a
writ of attachment for Evelyn the same day. During the resulting bench trial,
numerous witnesses testified. We summarize their testimony below. Because
Father has not appealed the trial court’s decision terminating his parental rights, we
focus on the evidence relevant to Mother.
1. Deputy Investigator Hausler
Deputy Investigator Steven Hausler of the Harris County Precinct 1
Constable’s office was assigned to serve the writ of attachment the same day it was
issued. Hausler eventually testified during the termination trial. According to
Hausler, he and his partner went to E.N.’s house where Mother and Evelyn were
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living. When he arrived, Hausler saw a large pile of trash and garbage in front of
the house’s garage. Hausler also noticed other debris scattered around the yard.
Hausler went inside the house where he saw numerous animals, including dogs, cats,
and turtles. He also observed numerous animal cages, as well as dog and cat
droppings throughout the house. Hausler also saw roaches crawling throughout the
house. Hausler testified that the smell of urine and dog feces pervaded the house.
In Hausler’s opinion, the house was not a safe place for a young child.
Hausler and his partner went up to the house’s second floor where Evelyn and
Mother were in a bedroom behind a closed door. Hausler entered the bedroom after
knocking on the door, announcing he was the police, and that he and his partner were
there to take Evelyn. Evelyn was lying in her crib when Hausler entered the
bedroom. Hausler told Mother that he was there with a writ of attachment for
Evelyn. Mother got off the bed, grabbed Evelyn, and told Hausler that she wanted
to take Evelyn to the bathroom. Hausler told Mother that she could not do that
because Evelyn could not leave his sight. At that point, Mother told Hausler that
they were not taking Evelyn. Mother then went out into the hall where she handed
Evelyn to E.N., who then handed Evelyn to Hausler. Mother then tried to strike
Hausler with her fist. Hausler grabbed Mother’s wrist before she was able to hit
him. Hausler testified that Mother’s attempted blow could have easily struck Evelyn.
Hausler turned Mother over to his partner and then quickly left the house carrying
Evelyn.
2. Evelyn’s Father
Father identified himself as Evelyn’s father. Father testified that there was
already a Department referral regarding Evelyn while she was still in the hospital
after birth. According to Father, he was living in his brother’s apartment at the time
and the Department checked out the apartment before allowing Evelyn to come
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home with him. Mother was living with them as well. While they were living at his
brother’s apartment, Father’s brother was arrested and convicted of possession of a
controlled substance. When asked about how long Evelyn and Mother lived with
him at his brother’s apartment, Father testified that they lived with him for several
months, until Evelyn was about seven months old. Father explained that Mother and
Evelyn moved out of the apartment because his relationship with Mother was not
working.
Father admitted that he fought with Mother, explaining that she would push
him and he would push her back. Father denied that the police were called as a result
of these physical altercations. Father did admit, however, that Evelyn was living in
the apartment when the fights occurred. During cross-examination, Father
eventually admitted that he locked Mother out of his residence and denied her access
to Evelyn. Father then testified that Mother had to break open a window to get back
into the residence. Finally, Father admitted that the police were called during that
incident.
Father testified that he knew Mother had lost her parental rights to her other
children. Father found out Evelyn was involved with CPS from his oldest son’s
mother, not from Mother. Father contacted the Department when he found out that
Evelyn was in the Department’s care. Father admitted that he had not provided child
support for Evelyn since the Department’s case began.
Father was also questioned about characteristics possessed by a good mother.
Father believed that a good mother takes care of her children, is loving, and provides
a good education. He also believed that a mother should provide a safe and stable
environment for her children. Father testified that he believed that a good mother
should provide financially for her children and also provide adequate shelter. Father
then testified that, based on these qualities, he did not believe Mother was a safe
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parent. According to Father, Mother’s mental health is bad because she is bipolar.
Father also testified that Mother has previously displayed such aggressive behavior
that he did not want to be around her.
3. E.N.
E.N. testified that Evelyn started living in her house when Evelyn was two to
three months old. E.N. picked Mother and Evelyn up after Father kicked them out
of their residence. E.N. stated that she was with Mother and Evelyn all of the time,
but she later admitted that she would occasionally leave them alone with each other.
E.N.’s home was the house where Deputy Investigator Hausler executed the writ of
attachment for Evelyn. E.N. admitted that allowing Evelyn to live in her home was
not taking good care of her. According to E.N., Evelyn seems happy since she began
living with her foster parents. E.N. agreed Evelyn would be better off staying in the
foster placement.
4. Tamara Smith
Smith identified herself as Evelyn’s conservatorship caseworker. According
to Smith, Evelyn is Mother’s fifth and youngest child. Smith explained that
Mother’s parental rights to her four older children had been terminated previously.
Once Evelyn was removed from Mother, she was placed with the same family that
had adopted two of her older siblings. Smith testified that Mother had not completed
all of the services required by the Department’s parenting plan, though she
completed her psychological assessment, psychiatric assessment, parenting classes,
and substance abuse assessment. Smith explained that Mother had not been
consistent with committing to random drug screens. In fact, Mother tested positive
for cocaine on at least one occasion since Evelyn’s case began. Smith testified that
at the time of trial, she did not know where Mother was residing, and Mother had
not been able to maintain steady housing during the pendency of Evelyn’s case.
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Smith then turned to Mother’s visitations with Evelyn. Smith stated that
Mother had been visiting with Evelyn until her visitations were suspended due to
Mother’s inappropriate behavior. Before the visits were terminated, Mother would
bring toys, food, and clothes for Evelyn. Smith explained that Mother used profanity
in front of Evelyn and also threatened Smith in front of Evelyn. The threats had
required Smith to call the security guard to intervene. Finally, Smith testified that
Mother tried to lock herself in the bathroom with Evelyn on multiple occasions.
As to Evelyn’s best interest, Smith stated that Mother had not demonstrated a
willingness to admit to her mental health issues. Smith also reemphasized that
Mother had not remained drug free throughout the life of the Department’s case.
Smith testified that the foster parents are willing to care for Evelyn and tend to her
needs. According to Smith, Evelyn is developmentally delayed2 and has an eye
condition that requires care neither birth parent can provide.
5. Mother
Mother stated that she has been living at her current residence for over a year.
She admitted, however, that she has lived in three residences during the previous
five years. Mother testified that she is self-employed painting walls and cleaning
houses.
Mother also explained her connection with E.N. According to Mother, E.N.
was married to Mother’s “first ex.” E.N. provided for Evelyn and Mother before
and during the time when Mother lived with Father. Mother and Evelyn also lived
in E.N.’s home for almost three months after they left Father’s residence. Mother
believed that E.N. had spent thousands of dollars on Evelyn. Mother admitted,
2
Smith testified that it is suspected Evelyn may be autistic but she cannot be diagnosed
until she is three years old.
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however, that E.N.’s home was not a safe environment for Evelyn.
Mother testified that she had explored the idea of placing Evelyn up for
adoption before Evelyn was born. Mother did this because Father was not the best
choice to be a parent. Mother informed the court that Father hit her several times in
the past. According to Mother, Evelyn was in the room when Father physically
abused her. Mother testified that she sought help from a women’s shelter, but every
time she called one, someone would be at the house and shelter personnel would
refuse to pick them up. Mother further testified that she suffers from high anxiety,
which is why she takes clonazepam. Mother also testified that she has nerve damage
from a back injury, which is why she takes barbiturates. Mother testified that her
temper does get her into trouble in certain situations. Mother admitted that she had
previously pled guilty to making a terroristic threat.
Mother explained that she had issues with the foster parents, who adopted two
of her other children, because she believes the foster mother is a pathological liar.
Mother admitted that she had selected the foster parents to adopt her first son.
Mother further stated that the foster parents overmedicate her children in their care
to the point of malnourishing their bodies. Mother explained that she believed
Evelyn would be better off in her care because she knows how to take care of Evelyn.
Mother testified that she and her daughter are bonded to each other. Mother made
her concerns about Evelyn’s physical appearance and health known to the
caseworker. Mother stated she would be able to provide for Evelyn and she would
be able to take Evelyn to her medical appointments, including those dealing with
Evelyn’s eye condition and glasses. Mother also testified that she has a support
system in Houston: her mother, Evelyn’s maternal grandmother.
Mother admitted that she had been diagnosed with PTSD, which she testified
was the result of all the tragedies she had been through in her life. Mother testified
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about an incident in which she had been held hostage for two days by the father of
one of her older children. Mother stated that the child’s father and another person
held her for two days and beat her because Mother had told her child’s father that it
was wrong for him to abandon his son. Mother admitted that if Evelyn had been
living with her, this could have created a very dangerous situation for Evelyn.
6. Foster Mother
Foster Mother identified herself as one of the intervenors in the case. Foster
Mother and her husband had previously adopted two of Mother’s children. They
were also the temporary caregivers for Evelyn and wanted to adopt her if the court
terminated the parents’ rights. Foster Mother believed that allowing her and her
husband to adopt Evelyn was in Evelyn’s best interest. According to Foster Mother,
Evelyn is doing well living with her two brothers. Evelyn runs, plays, and has
bonded with them. Foster Mother originally met Mother through Catholic Charities
when Mother was looking for a placement for her son. Foster Mother testified that
there are concerns Evelyn may be autistic because of her behavior. According to
Foster Mother, Evelyn’s life is very routine and structured, and when you depart
from that normal routine and structure she has massive tantrums, more than a normal
two-year-old child should have. Foster Mother also testified that when Evelyn first
came into her care, she had to be taught how to eat table food because she would
only eat baby food from pouches.
7. Evelyn’s Maternal Grandmother
The next witness was Evelyn’s maternal grandmother. Maternal
Grandmother testified that she went with Mother on eight to ten of Mother’s visits
with Evelyn at the Department. According to Maternal Grandmother, Mother would
bring food, clothes, toys, and snacks for Evelyn. During the visits, Mother would
interact with Evelyn by playing with her, playing music for her, and reading to her.
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Maternal Grandmother testified that Evelyn seemed very happy to be with Mother.
In Maternal Grandmother’s opinion, Mother and Evelyn had a bond. Maternal
Grandmother testified that she was unaware of the reason why Mother’s visits with
Evelyn were terminated because she had stepped out of the room for a phone call
when the incident sparking the termination occurred.
C. Trial Court’s Findings
The trial court found by clear and convincing evidence that Mother had her
parent-child relationship with another child terminated based on a finding that
Mother’s conduct was in violation of section 161.001(b)(1)(D) or (E) of the Family
Code. Based on that finding, the court ordered Mother’s parent-child relationship
with Evelyn terminated pursuant to section 161.001(b)(1)(M) of the Family Code.
The trial court also terminated Father’s parent-child relationship with Evelyn
pursuant to section 161.001(b)(1) of the Family Code, subsections D, E, and F. The
court additionally found by clear and convincing evidence that termination of
Mother’s and Father’s parental rights was in Evelyn’s best interest. The trial court
appointed the Department to be Evelyn’s sole managing conservator. Only Mother
has appealed the trial court’s judgment.
ANALYSIS
Parental rights can be terminated upon clear and convincing evidence that
(1) the parent committed an act described in section 161.001(b)(1) of the Family
Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1), (2) (West Supp. 2017); In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009). Only one predicate finding under section 161.001(b)(1) is necessary to
support a decree of termination when there is also a finding that termination is in the
child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Mother raises a
single issue on appeal, in which she challenges the factual sufficiency of the
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evidence supporting the trial court’s finding that termination of Mother’s parental
rights was in Evelyn’s best interest.
I. Burden of proof and standard of review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). Although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child relationship,
it is also essential that emotional and physical interests of the child not be sacrificed
merely to preserve that right.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to clear and convincing evidence. See Tex. Fam. Code
§ 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). “‘Clear and convincing
evidence’ means the measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007 (West 2014); accord J.F.C., 96
S.W.3d at 264. This heightened burden of proof results in a heightened standard of
review. S.R., 452 S.W.3d at 358.
In reviewing the factual sufficiency of the evidence, we consider all of the
evidence, including disputed or conflicting evidence. J.O.A., 283 S.W.3d at 345.
“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. We give due deference to the fact finder’s
findings, and we cannot substitute our own judgment for that of the fact finder. In
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re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The fact finder is the
sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109.
We cannot “second-guess the trial court’s resolution of a factual dispute by relying
on evidence that is either disputed, or that the court could easily have rejected as not
credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Best Interest
Mother’s single issue on appeal challenges the factual sufficiency of the
evidence supporting the trial court’s finding that termination of her parental rights is
in Evelyn’s best interest.
A. Legal Standards
Termination must be in the child’s best interest. Tex. Fam. Code
§ 161.001(b)(2). Texas courts presume keeping a child with the child’s natural
parent serves the child’s best interest. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). The Department carries the burden of
rebutting that presumption. Id. Prompt, permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. Tex. Fam. Code Ann.
§ 263.307(a) (West 2014).
Courts may consider the following non-exclusive factors, known as the Holley
factors, in reviewing the sufficiency of the evidence to support the best-interest
finding: the desires of the child; the physical and emotional needs of the child now
and in the future; the physical and emotional danger to the child now and in the
future; the parental abilities of the persons seeking custody; the programs available
to assist those persons seeking custody in promoting the best interest of the child;
the plans for the child by the individuals or agency seeking custody; the stability of
the home or proposed placement; acts or omissions of the parent that may indicate
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the existing parent-child relationship is not appropriate; and any excuse for the
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
As noted, this list of factors is not exhaustive, and evidence is not required on all the
factors to support a finding that termination is in the child’s best interest. In re
D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The
Family Code also sets out factors to be considered in evaluating a parent’s
willingness and ability to provide the child with a safe environment. See Tex. Fam.
Code § 263.307(b). Finally, proof of acts or omissions under section 161.001(b)(1)
affect the child’s best interest. See In re S.R., 452 S.W.3d at 366.
B. Application
1. Evelyn’s needs and desires
When a child is too young to express her desires, the fact finder may consider
that the child has bonded with the foster family, is well cared for by them, and has
spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied); In re J.D., 436 S.W.3d 105, 118 (Tex. App.–
Houston [14th Dist.] 2014, no pet.). At the time of trial, Evelyn was two and a half
years old and had lived with her foster parents for a significant portion of her life.
Evelyn’s foster parents had previously adopted two of Mother’s children, and Foster
Mother reported that Evelyn enjoyed being with her siblings and had bonded with
them. Foster Mother testified that Evelyn is developmentally delayed, has vision
issues, and may be autistic. Foster Mother testified, however, that Evelyn has made
progress in their care. For example, Evelyn has learned to eat table food and no
longer eats only baby food out of pouches. Foster Mother testified that they have
spent everything needed to take care of Evelyn and have not received any assistance
from anyone to help with those expenses. Foster Mother testified that they are
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willing to continue doing so. Foster Mother also testified that she and her husband
wished to adopt Evelyn.
The record evidence indicates that the foster parents were meeting Evelyn’s
present emotional and physical needs and that there was presently no physical or
emotional danger to her. Additionally, as the fact finder, the trial court could
reasonably have concluded based on this evidence that Evelyn’s foster parents would
continue meet her needs in the future.
2. Mother
The evidence of Mother’s actions that endangered Evelyn, summarized above,
is important to the best-interest analysis. See S.R., 452 S.W.3d at 366. The evidence
further shows that Mother had recently been abducted by the father of one of her
older children, held for two days, and beaten badly. This evidence casts doubt on
the safety of the living environment Mother would provide Evelyn. Mother
displayed a reluctance to take responsibility for the events that have happened in her
life, which casts doubt on her future ability to adjust her behavior to avoid similar
events in the future.
At the time of trial, Mother testified that she had maintained a stable residence
for a year. But Smith, the conservatorship caseworker, testified that she was
unaware of Mother’s residence. The trial court, as the trier of fact, could reasonably
have disbelieved Mother’s testimony and believed Smith’s. Mother also testified
that she was self-employed painting walls and cleaning houses. Mother provided no
further evidence verifying her employment or income. Based on evidence that
Mother had relied on E.N. to provide for both her and Evelyn, the trial court, as the
trier of fact, could reasonably have concluded that Mother did not have the financial
ability to provide for Evelyn’s health and welfare.
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Although Mother had completed many parts of her service plan, Smith
testified that Mother had not participated consistently in random drug screening. In
addition, Mother tested positive for cocaine on one occasion. See J.O.A., 283
S.W.3d at 345 (stating that a parent’s continuing substance abuse can qualify as a
voluntary, deliberate, and conscious course of conduct endangering the child’s well-
being).
Based on the evidence summarized above, the trial court also could reasonably
have decided that Mother did not recognize Evelyn’s significant medical and
developmental issues. The same evidence also establishes that Mother does not have
the ability or interest to provide Evelyn the level of care she would need even if she
did recognize the existence of her vision condition and her developmental delays,
possibly including autism. See In re J.E.M.M., 532 S.W.3d 874, 888 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (“As autism cases show, bringing up a child with
this challenging disorder can be difficult even for two parents equipped with
resources and working together to support the autistic child.”); In re S.P., 509
S.W.3d 552, 558 (Tex. App.—El Paso 2016, no pet.) (evidence of parent’s past
neglect or inability to care for child is relevant to best-interest analysis).
3. Conclusion on best interest
Considering the entire record, we conclude the evidence the trial court could
not reasonably have credited in favor of termination is not so significant as to prevent
the court from reasonably forming a firm belief or conviction that termination of
Mother’s rights was in Evelyn’s best interest. Accordingly, the evidence is factually
sufficient to support the trial court’s best-interest finding. We overrule Mother’s
sole issue on appeal.
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CONCLUSION
We affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices Busby, Brown, and Wise.
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