in the Interest of K.H., S.W., and I.W., Children ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00164-CV
IN THE INTEREST OF K.H., S.W.,
AND I.W., CHILDREN
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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 360-531494-13
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MEMORANDUM OPINION 1
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This is an ultra-accelerated appeal 2 from a judgment terminating the
parental rights of Appellant R.M. (Father) to his two children, S.W. (Sonny) and
I.W. (Irene). We affirm the trial court’s judgment.
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
Background Facts
Sonny and Irene lived with their mother L.W. (Mother). Mother also has
another child, K.H. (Kayla). In early November 2013, the Department of Family
and Protective Services (DFPS or the Department) received a report that Mother
had left Sonny and Kayla in a car while she took Irene into a store and stole a
purse. Police pulled Mother over and found that none of the children were in
child seats or were wearing seatbelts. A DFPS investigator went to Mother’s
home and spoke with Kayla. Kayla said that before Irene had been born, Mother
would leave Kayla and Sonny in the home alone while Mother went to work.
Kayla said she and Sonny were left in a closet during Mother’s eleven-hour
shifts. Mother had a history with DFPS for having left Kayla alone before and
having left the children with different people. Kayla also told the investigator that
Father would come over to Mother’s apartment and that he “yelled a lot and she
was scared of him.” Kayla said that Father would give her soda mixed with
alcohol that would make her dizzy.
DFPS was not able to interview Father in that investigation because
Mother said she did not have any contact information for him and the old phone
numbers in the DFPS files were not valid. The Department removed the children
for neglectful supervision. At the DFPS office, Sonny appeared to be in pain, so
the Department took the children to the hospital for evaluations. There, it
discovered that Sonny had been constipated for “about a month.” Sonny began
2
“throwing up feces,” and the hospital staff said that he likely would have died had
he continued to stay in such a state.
The Department filed its petition for termination in November 2013. In
October 2014, the trial court granted the Department’s motion for extension of
the dismissal date, extending the dismissal date to March 24, 2015. 3 In April
2015, Mother relinquished her parental rights to all three children. A trial to the
bench proceeded against Father and Kayla’s alleged biological father, C.H. The
trial court found that Father had knowingly placed or had knowingly allowed
Sonny and Irene to remain in conditions or surroundings that endangered their
physical or emotional well-being; had engaged in conduct or had knowingly
placed Sonny and Irene with persons who had engaged in conduct that
endangered their physical or emotional well-being; had constructively abandoned
Sonny and Irene; and had failed to comply with the provisions of a court order
that specifically established the actions necessary for him to obtain the return of
Sonny and Irene. The trial court further found that termination of Father’s
parental rights to Sonny and Irene was in the children’s best interest. Father
then filed this appeal. 4
3
The order states the dismissal date as March 24, 2014. The 2014 date is
clearly a typographical error, and no party disputes that the dismissal date was
extended to March 24, 2015.
4
The trial court also terminated Mother’s rights to her three children and
C.H.’s rights to Kayla. Mother and C.H. did not appeal; thus, Kayla is not a
subject of this appeal.
3
Standard of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. See Act of May 26, 2015, 84th Leg., R.S., ch. 1, § 1.078,
sec. 161.001(b), 2015 Tex. Sess. Law Serv. 18–20 (West) (to be codified as an
amendment to Tex. Fam. Code Ann. § 161.001) (hereinafter cited as Tex. Fam.
Code Ann. § 161.001(b)); Tex. Fam. Code Ann. § 161.206(a) (West 2014);
E.N.C., 384 S.W.3d at 802. “[C]onjecture is not enough.” Id. at 810. Due
process demands this heightened standard because “[a] parental rights
termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59,
102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also
4
E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “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); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the party seeking
termination must establish by clear and convincing evidence that the parent’s
actions satisfy one ground listed in family code section 161.001(b)(1) and that
termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Both elements must be established; termination may not be based solely
on the best interest of the child as determined by the trier of fact. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E.,
391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
1. Legal sufficiency
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
We review all the evidence in the light most favorable to the finding and
judgment. Id. We resolve any disputed facts in favor of the finding if a
reasonable factfinder could have done so. Id. We disregard all evidence that a
reasonable factfinder could have disbelieved. Id. We consider undisputed
5
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. See id. “A lack of
evidence does not constitute clear and convincing evidence.” E.N.C.,
384 S.W.3d at 808.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573, 574. And even when credibility issues appear in the
appellate record, we defer to the factfinder’s determinations as long as they are
not unreasonable. Id. at 573.
2. Factual sufficiency
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent’s actions satisfying at least one ground listed in section 161.001(b)(1) and
the termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17, 28
(Tex. 2002). If, in light of the entire record, the disputed evidence that a
6
reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
Discussion
I. Grounds for termination
In his first four issues, Father argues that the evidence is insufficient to
support the trial court’s endangerment findings. Father does not, however,
challenge the sufficiency of the evidence supporting the trial court’s findings on
the other two grounds for termination, including the finding that he failed to
comply with the provisions of a court order that specifically established the
actions necessary for him to obtain the return of the children, who had been in
the permanent or temporary managing conservatorship of the Department for not
less than nine months as a result of their removal for abuse or neglect. See Tex.
Fam. Code Ann. § 161.001(b)(1)(O). Along with a best interest finding, a finding
of only one ground alleged under section 161.001(b)(1) is sufficient to support a
judgment of termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). We
therefore do not reach the merits of Father’s first four issues. See Tex. R. App.
P. 47.1; A.V., 113 S.W.3d at 362.
7
II. Best interest
In his fifth and sixth issues, Father argues that the evidence is insufficient
to support the trial court’s best interest finding.
A. Presumption and the statutory and Holley factors
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review
the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d
239, 250 (Tex. 2013). The same evidence may be probative of both the
subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d at 28.
Prompt and 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). The following factors should be considered in evaluating the
parent’s willingness and ability to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm
to the child;
(4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department;
(5) whether the child is fearful of living in or returning to the
child’s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or
others who have access to the child’s home;
8
(7) whether there is a history of abusive or assaultive conduct
by the child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is
identified;
(10) the willingness and ability of the child’s family to seek out,
accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable
period of time;
(12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children
under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with
the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities;
and
(13) whether an adequate social support system consisting of
an extended family and friends is available to the child.
Id. § 263.307(b); R.R., 209 S.W.3d at 116.
9
Other, nonexclusive factors that the trier of fact in a termination case may
also use in determining the best interest of the child include
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the
best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking
custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see
E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we
consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
10
finding. Id. That is, “[a] lack of evidence does not constitute clear and convincing
evidence.” E.N.C., 384 S.W.3d at 808.
B. The evidence
1. The children’s age and vulnerabilities
At the time of trial, Sonny was four years old and Irene was eighteen
months’ old. See Tex. Fam. Code Ann. § 263.307(b)(1). Father was unsure of
Irene’s birthday because, as he said, “it’s not that I was watching—you know, in
her care.” Sonny had delayed speech problems. Haylee Long, the Department
conservatorship caseworker, testified, “When he first came into care, you couldn’t
understand anything he said.” Upon evaluation, these problems were attributed
to severe neglect prior to coming into foster care and had improved with speech
therapy. Sonny was on medications for the first few months after his removal for
his constipation issues. At the time of trial, Long described Irene as “a very
happy baby” who is “very advanced for her age.”
2. History of abusive or assaultive conduct and substance
abuse
Father “has a pattern of domestic violence.” See id. § 263.307(b)(7),
(12)(E). Long testified that the Department’s main concerns regarding Father
was his history of domestic violence and neglect and his lack of stability in
housing and employment. See id. § 263.307(b)(3).
In 2008, the Department became involved with Kayla and Mother due to
Kayla’s failure to thrive. Ultimately, the Department removed Kayla from Mother
11
because they were living with Father at the time and “an incident” occurred
between Mother and Father. See id. § 263.307(b)(2). Kayla was subsequently
returned to Mother after Mother completed services. The Department became
involved again in 2011. During that investigation, Kayla told the DFPS
investigator that Father was aggressive and that she was scared of him. See id.
§ 263.307(b)(5). Kayla described feeling dizzy after Father would give her soda
laced with alcohol. She also told DFPS investigators that Father would hit her
with a stick or twig.
Mother had stated in a previous investigation that Father was physically
violent and verbally aggressive towards her and Kayla. Mother said that Father
would hit Kayla with a twig. Mother indicated to Long that Father continued to be
physically abusive towards her during the case. Mother said that Father bit her in
2014, that she had bruises on her face, and that she had lost her job because
she did not go to work. She also claimed that Father sexually assaulted her in
March 2015.
Father was supposed to address his alcohol issues in his individual
counseling. See id. § 263.307(b)(8). Long testified, “[Kayla] would frequently
talk—she still frequently talks about how [Father] makes her uncomfortable
because he drinks and his friends drinks and he doesn’t like—she doesn’t like to
be around that. And [Mother] has also stated that he drinks a lot of alcohol.”
Long testified that Father has been involved with domestic violence with
his current girlfriend. Father was arrested in July 2014 for assault and bodily
12
injury, to which he pleaded guilty. He was on deferred adjudication at the time of
trial.
3. Father’s willingness and ability to seek out, accept, and
complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision and to effect positive
environmental and personal changes within a reasonable period of
time
Father began counseling in April 2014, and stopped attending in June
2014. See id. § 263.307(b)(10). He began attending counseling again in
January 2015, four months before trial. Long testified that Father did not
successfully complete his counseling. Father’s second counselor, Bransha
Gardener, testified that Father had quit counseling in June 2014 because he had
gone to jail for domestic violence. Gardener said that Father’s goal was to
“achieve a level of effective parenting, to stop ineffective parenting.” She said
that Father did not meet that goal because “[h]e never put the kids first. He knew
of the condition the children were living in prior to [DFPS] getting involved, he
never stepped in to see about their well-being.” Gardener said that Father was
aware prior to the children being taken into care that Mother was “unstable” but
that when he had the children, Mother “would harass him, so he would just give
the kids back so he wouldn’t have to deal with her.” Gardener believed this was
not appropriate parenting and that Father was not doing enough to protect the
children. Gardener did not believe that more counselling sessions would
rehabilitate Father because he lacked commitment.
13
Long sent Father to parenting classes at the same location as his
individual counseling where they would be free of charge. At one point, Father
asked for a different parenting class to accommodate his schedule and said he
knew of an online class, but he never provided Long with the information she
needed. Long testified that Father did not complete any parenting classes.
Father testified that he had completed seven out of eight parenting classes
before he was arrested and had to start over. He also said that his parenting
class was scheduled at the same time as another class. He acknowledged that a
year and a half was more than enough time to complete his services.
The Department gave Father a service plan and asked that he complete
individual counseling, parenting classes, and a batterer’s intervention and
prevention program; maintain stable housing and employment; and attend
visitation with his children. See id. § 263.307(b)(11). Long testified that Father
was not compliant with the service plan and that he had achieved none of the
goals set for him. Specifically, she said that Father had not completed his goals
of learning and applying realistic expectations for the age and developmental
capabilities of the children; managing income to meet the basic needs of the
family; demonstrating an acceptance of the responsibility of being a parent;
demonstrating an ability to provide basic necessities such as food, clothing,
shelter, medical care, and supervision for the children; and demonstrating the
ability to protect the children when they were not in his care. Long testified that
she believed that given more time, Father would still not reach any of the goals.
14
Father completed his batterer’s intervention and prevention program the
week before trial. He testified that he had learned a lot from his classes and that
he had changed and had learned to communicate. However, Long testified that
she did not believe that Father’s issues regarding family violence and domestic
abuse have been resolved and that Father had not demonstrated an attitude or
behavior that his problems with violence were no longer an issue.
Father only attended seven visitations during the eighteen months that the
case was pending. For the first six visits, Father ignored Irene. Long said,
“[Father] did not acknowledge her presence. He didn’t look at her. He didn’t hold
her. He didn’t talk to her. Nothing.” Father never sent any gifts or cards to the
children. Long testified that it was important that parents attend visitation
because it shows commitment to the children. Long explained that there was no
bond between Father and his children due to this lack of commitment and that if
he did not show commitment while under court order, there was no chance he
would do so when he was not supervised. She said,
I think it’s important for children to know who their parents
are and to know that they’re loved and that they’re valued
enough for their parent to visit them. And if not visit them, at
least call to check on them, to call to see how they’re doing,
to show some sort of interest in how their life is going.
I think that a bond is extremely important with children for their
development. They’re—children who are bonded to their parents,
who have a relationship with their parents do better in school and
they just do better in life because they feel valued.
15
Father told the Department that he was a truck driver, but he never
provided proof of employment. He also told the trial court that he did not realize
how serious it was that he was not attending visitation. When asked why he
stopped visiting the children, he said,
My son asked me a question, like he wanted to know why he
couldn’t come with me. I didn’t have no answer. ‘Cause back then
I didn’t have a job. I had not completed the program.
You know, she asked—he asked me a question which, you
know, as a real father, I could have had an answer, but I didn’t have
an answer that day. And that really got into me to the point that I
felt like, you know, I’m hurting them more visiting them like this and
just leaving them. But that was the wrong thing. The wrong
decision.
4. Father’s parenting skills
Gardener described Father’s parenting style as “absentee parent.” See id.
§ 263.307(b)(12). She said that Father would only “step in when someone
force[d] him to.” She described Father as “unstable” and said, “Even when he
got a job and even talking about the future, it was always someone else was
going to watch the kids compared to him.” The DFPS investigator testified that
Father would call Kayla names like “ugly.” See id. § 263.307(b)(12)(B).
Gardener and Long both testified that they did not believe that Father had
demonstrated that he could provide a safe and healthy home for his children.
See id. § 263.307(b)(12)(D). Father did not have stable housing until about two
weeks before trial. He told DFPS that he was living with “his girlfriend or a friend
or a cousin” but would not provide an address. In February 2015, he gave Long
16
an address where he said he was living. Long went to the address, and the man
who answered the door said that Father did not live there.
Father’s name was not on the lease at his current residence. Long was
concerned that Father was not on the lease because she did not “really know
that he [was] living there, and he could [have left] at any time,” once again
demonstrating a lack of commitment. Long testified that Father was living with
other people and she had not been able to do background checks on them. She
said the room appeared large enough and safe for the children, but there was no
furniture in Father’s bedroom or in the room in which he said the children would
sleep.
5. Father’s support system
Father testified that his family had been providing him support. See id.
§ 263.307(b)(13). Father said that his cousin had helped find housing for him
and the children and that he had watched Sonny when Father had to leave for
work. When asked who would watch the children while Father was at work, he
said that he would “strongly consider” finding another job that would give him
more time at home.
Father has two older children who live in Kenya with his parents. Father
told Long that “sometimes he sends money.” Father believed that he is providing
good parenting to his children. See Holley, 544 S.W.2d at 371–72.
17
6. The children’s current placement
At the time of trial, the children were currently living together in a foster
home, where Sonny and Irene had been since they were removed in 2013.
Sonny had been in speech therapy since his removal, and Long reported that he
had made “a lot of improvements.”
Long asked Father for the names of any family members with whom he
wanted the children placed, but he never gave Long contact information. She
testified,
[Father] originally said that he would like for his cousin in
Houston to take the children. I asked numerous times for his phone
number, his address, any way for me to get in contact with him. He
continuously said[,] “I’ll get it to you. I’ll get it to you.” He wouldn’t
even provide me with a name. He said he wanted to talk to him
first.
He later came and said that he wanted us to look at his
parents, his mother and father who live in Kenya. He provided us
with their information. A person in my office who actually speaks
Swahili, which is what [Father]’s mother speaks, contacted her.
She said that her and her husband were willing to come to the
United States and care for the children, and they were just waiting
on [Father] to set up an appointment with them at the embassy. To
my knowledge, [Father] has not done that.
There have been maybe one or two—there was one other
relative. I believe it was a grandfather. Mr. O[.], I believe, is his
name—who [Father] asked that we look into. He did not want to
provide me with his information. He said that he wanted to talk to
him first with [Mother] present, and that they would all talk together.
I followed up several times, saying[,] “Have you done this? If not,
just give me his phone number. I can contact him and talk to him.”
He did not do it.
18
7. Father’s other acts and omissions
When Mother found out she was pregnant with Irene, Father gave her
$500 to have an abortion. When Mother refused, Father “wanted nothing to do
with the baby because he told her to have an abortion.” Long also testified that
Father admitted in open court that he did not want to have a relationship with
Irene and that he did not want to get paternity testing. Long said that Father did
not attempt to establish a relationship with Irene until August 2014, about nine
months after the children were removed.
Father told the trial court that he had not visited the children because he
“hated the kid,” referring to Irene. He said that he had accepted Sonny as his
child without a DNA test but that he was “told to do the DNA for the other kid”
(again referring to Irene) because he did not believe that he was her father. He
said that once he accepted that he was her father he “felt so happy.”
Long testified that there was no bond between Father and the children and
that the children did not indicate that they missed Father. Gardener also testified
to the lack of bond between Father and the children. Sonny did not express a
desire to see Father, and Long testified that Sonny “might know [Father] if he
saw him, possibly.” Long said, “That is concerning because there is—there is no
bond there. [Father] has shown no commitment to his children—that he’s willing
to provide for them financially, emotionally. And if he’s not willing to do that, I
don’t—I don’t believe that they would be cared for by him.”
19
Long testified that she was not impressed that Father had recently been
making progress. She did not believe that Father could provide a safe home or
that his parenting had improved, and she stated that reunification with his
children would be endangering to them. The trial court asked Long for “the
number one reason why [Father’s rights] need[] to be terminated.” Long
responded,
I believe that [Father] has had every opportunity to show his
commitment to his children, that he’s committed to caring for them,
showing them the love that they need—not only the love, but being
able to provide for them at all—and he has not even accepted
responsibility for any of the domestic violence; he has not accepted
responsibility for not attending visitation; he has not accepted
responsibility for even being a parent to these children.
THE COURT: Okay. The fact that he’s contesting this, does
that have any impact on your opinion?
[LONG]: No.
THE COURT: Why?
[LONG]: Because from my conversations with [Father], I
believe that this is about him winning.
THE COURT: Winning what?
[LONG]: Just winning this case. I don’t think it really has to
do with his children at all.
THE COURT: Why do you know—why do you believe that?
That’s an interesting—you think he wants to win but it has nothing to
do with his children. Help me understand what you mean.
[LONG]: I believe he dislikes the children’s mother very, very
much, and he wants to show her that he can win.
20
THE COURT: Well, divorced people sometimes don’t like
each other. What makes this case different?
[LONG]: All I know is that in every conversation I’ve ever had
with [Father], everything surrounds [Mother] rather than the children.
The DFPS investigator also testified that he did not believe that Father
would be an appropriate placement for the children. Gardener testified that
Father did not prioritize the children and that “[e]verthing came before the kids.”
She did not believe that Father had taken any responsibility for the children
coming into DFPS’s care, including denying that he had been involved with
domestic violence. She did not recommend that Father be reunified with his
children because she did not think that they were bonded and that Father would
be a committed parent. When asked if there was “anything that was revealed
during counseling that [gave her] an indication that he might have a glimmer of
hope of taking responsibility and being a good parent,” she answered no.
Father acknowledged that Mother had been neglectful and that she was
having problems with the children, but he denied knowing that she was leaving
the children alone for long periods of time. Father also denied ever physically
hurting Mother. He testified that he allowed the children to remain with Mother
because he thought she had changed after the last case she had with DFPS.
When asked if Mother would be a problem in the future, he said, “I know she will
if I get the kids.” When asked if he believed he could protect them from Mother,
he said, “I will make sure.”
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C. Analysis
Father had a history of domestic violence, directed both at his partners and
the children. He was on deferred adjudication community supervision for assault
and bodily injury, which incident occurred during the pendency of this case.
See In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2005,
no pet.) (stating that the father’s incarceration and pattern of criminal and violent
conduct made it likely that he would face incarceration again in the future).
Father also had problems with alcohol abuse. Father did not address any of his
issues through counseling or other services, and he failed to complete his service
plan. See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no
pet.) (“A parent’s drug use, inability to provide a stable home, and failure to
comply with [a] family service plan support a finding that termination is in the best
interest of the child.”).
The evidence showed that Father was aware that Mother was not
providing a safe and stable home for the children, but Father allowed the children
to remain with her because he did not want to deal with Mother. At the time of
removal, Sonny had delayed speech problems and life-threatening, long-term
constipation. Father was not bonded with the children and had only attended
seven visitations in over a year and a half. See In re J.L.R., No. 11-05-00094-
CV, 2006 WL 728069, at *2 (Tex. App.—Eastland Mar. 23, 2006, no pet.) (mem.
op.) (holding evidence legally and factually sufficient to support best interest
finding when father had limited contact with child). He repeatedly referred to
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Irene as “the kid” and had admitted in open court that he did not want to have a
relationship with her.
A factfinder may infer from past conduct endangering the well-being of the
child that similar conduct will recur if the child is returned to the parent. In re
M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort Worth
Dec. 11, 2008, no pet.) (mem. op.); see also Smith v. Tex. Dep’t of Protective &
Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.) (“[I]n
considering the best interest of the child, evidence of a recent turn-around in
behavior by the parent does not totally offset evidence of a pattern of instability
and harmful behavior in the past.”). The trial court was free to believe that Father
would continue in his pattern of abuse and absenteeism, especially in light of the
evidence that Father had not addressed any of the Department’s concerns.
Viewing all of the evidence in the light most favorable to the best-interest
finding and considering the statutory and Holley factors, we hold that the trial
court could have reasonably formed a firm conviction or belief that termination of
the parent-child relationship between Father and Sonny and between Father and
Irene was in the children’s best interest, and we therefore hold the evidence
legally sufficient to support the jury’s best-interest finding. See Tex. Fam. Code
Ann. § 161.001(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d) (holding evidence legally sufficient to support finding
that termination of mother’s parental rights was in child’s best interest when most
of the best interest factors weighed in favor of termination). Similarly, reviewing
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all the evidence with appropriate deference to the factfinder, we hold that the jury
could have reasonably formed a firm conviction or belief that termination of the
parent-child relationship between Father and Sonny and between Father and
Irene was in the children’s best interest, and we therefore hold that the evidence
is factually sufficient to support the trial court’s best-interest findings. See Tex.
Fam. Code Ann. § 161.001(2). We therefore overrule Father’s fifth and sixth
issues.
Conclusion
Having overruled Father’s fifth and sixth issues and having not reached the
merits of Father’s first through fourth issues, we affirm the trial court’s judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: October 15, 2015
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