in the Interest of A.R., the Child ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00027-CV
IN THE INTEREST OF A.R., THE
CHILD
----------
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2012-61009-393
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellants N.K. (Mother) and J.R. (Father) appeal the trial court’s order
terminating their parental rights to their daughter, A.R. We will affirm.
II. BACKGROUND
Mother and Father were both twenty years old when A.R. was born in May
2012. A social worker at the hospital met with the couple to address several
1
See Tex. R. App. P. 47.4.
concerns that were raised regarding their ability to care for A.R. Although the
hospital released A.R. into Mother’s and Father’s care, a report was made to
CPS detailing concerns about A.R.’s safety and care, including that Mother and
Father needed multiple explanations about how to perform basic tasks for A.R.
(like properly preparing a bottle), that there was domestic violence occurring in
the household (there were holes in the wall of the apartment), and that the family
home was not yet ready for A.R. CPS consequently initiated an investigation and
recommended that Mother and Father participate in family-based safety services,
such as counseling and parenting classes. During that period of time, Mother
and Father were “very defensive” about CPS’s involvement in their lives, were
openly hostile to investigators at times, and failed to complete the services.
Concerned about Mother’s and Father’s ability to ensure A.R.’s safety, in early
August 2012, when A.R. was about two months old, Appellee Texas Department
of Family and Protective Services (TDFPS) filed its petition for protection of a
child, for conservatorship, and for termination in suit affecting the parent-child
relationship and removed A.R. from the parents’ care.2 During the removal, a
struggle ensued when Father refused to turn over A.R., and Father struck a CPS
investigator. Police arrested Father and charged him with injury to a child and
2
CPS found reason to believe neglectful supervision by both Mother and
Father and reason to believe physical abuse by Father based on an incident that
occurred during A.R.’s removal.
2
assaulting a public servant; he remained incarcerated throughout the pendency
of the case.
Between A.R.’s removal and the termination trial in January 2014, Mother
completed only part of her service plan, and one caseworker opined that Mother
did not learn or benefit from the services that she did perform. Indeed, among
other things, Mother refused to cooperate with one provider, she prohibited
another provider from performing his job because she failed to complete an
evaluation, and her hyper-religiousness, or preoccupation with religion, caused a
number of providers serious concern about her ability to care for A.R. Mother
testified at the termination trial that all of the service providers were conspiring
with CPS to ensure that her parental rights were terminated, and she contended
that no service was offered for a legitimate purpose.
A jury found by clear and convincing evidence (1) that Mother and Father
had knowingly placed or knowingly allowed A.R. to remain in conditions or
surroundings that endangered her physical or emotional well-being; (2) that
Mother and Father had engaged in conduct, or knowingly placed A.R. with
persons who had engaged in conduct, that endangered her physical or emotional
well-being; (3) that Mother and Father had failed to comply with the provisions of
a court order that specifically established the actions necessary to obtain the
return of A.R.; and (4) that termination of Mother’s and Father’s parental rights to
A.R. was in the child’s best interests. See Tex. Fam. Code. Ann.
§ 161.001(1)(D), (E), (O), (2) (West 2014). Mother and Father appeal.
3
III. FATHER’S APPEAL
A. Evidentiary Sufficiency
Father argues in his first and second issues that the evidence is legally
and factually insufficient to support the jury’s subsection 161.001(1)(D) and (E)
endangerment findings.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2014); In re
E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). 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.
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,
resolve any disputed facts in favor of the finding if a reasonable factfinder could
have done so, and disregard all evidence that a reasonable factfinder could have
disbelieved. Id.In reviewing the evidence for factual sufficiency, we determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that the parent violated section 161.001(1). Tex. Fam. Code Ann. § 161.001;
4
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the
disputed evidence that a 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. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
Endangerment means to expose to loss or injury, to jeopardize. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The trial
court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has knowingly placed or knowingly allowed
the child to remain in conditions or surroundings that endanger the physical or
emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(D). Under
subsection (D), it is necessary to examine evidence related to the environment of
the child to determine if the environment was the source of endangerment to the
child’s physical or emotional well-being. In re D.T., 34 S.W.3d 625, 632 (Tex.
App.—Fort Worth 2000, pet. denied). A child is endangered when the
environment creates a potential for danger that the parent is aware of but
disregards. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009,
no pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the
child’s home or with whom the child is compelled to associate on a regular basis
in his home is a part of the “conditions or surroundings” of the child’s home under
subsection 161.001(1)(D). Id. Conduct of a parent in the home can create an
5
environment that endangers the physical and emotional well-being of a child.
J.T.G., 121 S.W.3d at 125.
The trial court may also order termination of the parent-child relationship if
it finds by clear and convincing evidence that the parent has engaged in conduct
or knowingly placed the child with persons who engaged in conduct that
endangers the physical or emotional well-being of the child. Tex. Fam. Code
Ann. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s physical or emotional well-
being was the direct result of the parent’s conduct, including acts, omissions, and
failures to act. J.T.G., 121 S.W.3d at 125. Termination under subsection (E)
must be based on more than a single act or omission; a voluntary, deliberate,
and conscious course of conduct by the parent is required. Id.; D.T., 34 S.W.3d
at 634.
To support a finding of endangerment, the parent’s conduct does not
necessarily have to be directed at the child, and the child is not required to suffer
injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The specific danger to the child’s well-being may be inferred from parental
misconduct alone, and to determine whether termination is necessary, courts
may look to parental conduct both before and after the child’s birth. Id.; In re
D.M., 58 S.W.3d 801, 812–13 (Tex. App.—Fort Worth 2001, no pet.). A
factfinder may also 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
6
M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort Worth
Dec. 11, 2008, no pet.) (mem. op.). In conducting an evidentiary sufficiency
review of a factfinder’s subsections 161.001(1)(D) and (E) findings, this court has
previously considered, among other things, evidence that a child was exposed to
domestic violence. See In re M.R., 243 S.W.3d 807, 818 (Tex. App.—Fort Worth
2007, no pet.).
Because the evidence pertaining to subsections 161.001(1)(D) and (E) is
interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,
439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.
The record contains evidence from which the jury could have concluded
that Father has committed, and is inclined to further commit, domestic violence. 3
Mother and Father have a history of engaging in heated arguments laced with
profanity. On one occasion in April 2012, Mother, who was pregnant, called 911
after an argument with Father because she thought that she had gone into labor.
On another occasion, in a recorded conversation, Father threatened to sodomize
Mother and to kill himself. Mother downplayed the severity of the incidents or
altogether denied that domestic violence was occurring in the household, and
one provider expressed concern about Mother’s outright refusal to answer
3
One of Mother’s provider’s defined domestic violence as “the continued
and purposeful demeaning and abuse of a partner or a family member through
physical, emotional, sexual and financial means.”
7
questions about potential domestic violence. Once Father became aggressive
and yelled obscenities at a CPS investigator.
The jury also heard evidence relating to physical violence. CPS had
questions and concerns about multiple holes in the sheetrock of Mother and
Father’s apartment. Mother claimed that the holes were caused by Father’s
roughhousing with friends, but a caseworker believed that Mother and Father
were untruthful about their origin. In another incident, Father endangered A.R.
during an altercation with CPS investigators and police when CPS attempted to
remove A.R. from Mother’s and Father’s care. Holding A.R., Father became irate
when officers prohibited him from leaving the residence. A.R. began crying and
turning “red, almost purple,” and when a caseworker attempted to retrieve A.R.
from Father—thinking that A.R. was in “extreme distress” in Father’s arm—he
grabbed one of A.R.’s legs and struck the caseworker’s face. A.R. went to the
hospital afterwards and had a cast placed on one of her legs. A caseworker
opined that the chances of domestic violence occurring in the future between
Mother and Father were “very great.”
Additional endangering conduct by Father included his inability to
understand how to properly care for A.R. Father was A.R.’s primary caregiver
after Mother returned to work (Father was unemployed), and Mother testified that
she intended to stay with Father after his release from jail. The initial report to
CPS regarding A.R. included concerns about Father’s need to have certain
caregiving activities explained to him multiple times. Indeed, during the
8
investigation stage, Father confirmed that he was “slow,” that he did not know
how to read, and that he needed things explained to him several times. When an
investigator attempted to discuss basic newborn care with Father—e.g., how
many ounces of water and formula go into a bottle and how many feedings
should be performed in a day—Mother interrupted and attempted to answer for
him. When the investigator redirected the question to Father, he said that he did
not know and that he needed multiple explanations. The investigator
demonstrated how to prepare a bottle for A.R., and even made a chart for Father
to use, but he did not grasp the process. Along those lines, a nurse practitioner
from PediPlace testified that Mother and Father had expressed concern to her
about A.R. vomiting—which is caused by overfeeding—even after they had
previously been counseled about overfeeding A.R.
A psychologist who examined Father described him as “quite immature”;
explained that Father’s responses were akin to something that he would expect
from a seven-, eight-, or nine-year-old child; and opined that Father had “some
rather grandiose or unrealistic and narcissistic beliefs about himself.” According
to the psychologist, narcissistic individuals believe that they possess abilities that
other people do not have, and an example of this in Father’s case was his belief
for a brief period of time that A.R., a newborn baby, could communicate with him
by squeezing his finger—once meaning that she needed a diaper change and
twice meaning that she needed a feeding. According to the psychologist,
Father’s narcissism “will negatively impact his ability to appreciate how his
9
choices affect [A.R.’s] well-being,” and his immaturity could pose a danger to a
small child in his care. Likewise, a nurse practitioner testified that she had
concerns about A.R.’s basic care, and one of Father’s caseworkers testified that
she did not believe that Father had the ability to properly care for a young child.
Father additionally endangered A.R. through his ongoing association and
relationship with Mother. A number of providers expressed concern about
Mother’s refusal to communicate with them during counseling and her repeated
references to and invocation of religion, which effectively hampered or prohibited
the sessions from progressing. One provider provisionally diagnosed Mother as
having features of a schizotypal personality and explained that “the extremity and
pervasiveness of her spiritual beliefs can be viewed as pathological and interfere
with important aspects of her functioning.” In other words, Mother uses her
“religiosity . . . [as] a defense against [the things that are complex, stressful, or
threatening to her] by saying, hey, nobody can say anything, that I’m doing
anything wrong because it’s based on my religion. So that way, I can’t be
criticized, I can’t be given feedback, I can’t be challenged.” According to the
provider, Mother’s preoccupation with religion interfered with her daily life and
can put a child at risk.
Similarly, a psychiatrist who examined Mother was unable to make a
formal diagnosis because Mother refused to answer numerous questions, but he
did express concern about mother’s “hyper-religious attitude, as well as her
inability to be open with” him. The psychiatrist opined that Mother’s behavior
10
could be indicative of schizotypal personality disorder, in which “one does not
have intact reality testing.” As that pertains to Mother’s ability to parent, the
psychiatrist expressed concern that Mother was “unable to assess situations with
[her] child and properly care for [her].”4 There was no indication in the record that
Father did not intend to be in a relationship with Mother in the future.
We hold that the evidence is legally and factually sufficient to support the
jury’s family code subsection 161.001(1)(D) and (E) endangerment findings. We
overrule Father’s first and second issues. Because only one ground under
section 161.001(1) is needed to support termination, we do no reach Father’s
third issue challenging the sufficiency of the evidence to support the jury’s
subsection (O) finding. See In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Directed Verdict
In his fourth issue, Father argues that the trial court erred by denying his
motion for a directed verdict because one of the requirements of family code
section 161.003 (that the illness or deficiency will continue to render the parent
unable to provide for the child’s needs until her eighteenth birthday) is implicitly
required by subsections 161.001(1)(D) and (E), and TDFPS failed to meet its
burden of proof as to the implied requirement. Father’s directed-verdict motion
did not include this specific ground for relief. Because his argument on appeal
4
When asked what she would do if A.R. was sick, Mother responded that
she would “pray over” A.R. and “pour the blood of Jesus over” her to help heal
her. After some prompting, Mother said that she would then take A.R. to the
doctor.
11
does not comport with his motion at trial, he failed to preserve this issue for
appellate review.5 See Tex. R. App. P. 33.1(a)(1). We overrule Father’s fourth
issue.
IV. MOTHER’S APPEAL
Mother’s court-appointed appellate counsel has filed a motion to withdraw
as counsel and a brief in support of that motion.6 Counsel’s brief and motion
meet the requirements of Anders v. California by presenting a professional
evaluation of the record demonstrating why there are no reversible grounds on
appeal and referencing any grounds that might arguably support the appeal. See
386 U.S. 738, 741, 87 S. Ct. 1396, 1400 (1967). This court previously has held
that Anders procedures apply in parental termination cases. See In re K.M., 98
S.W.3d 774, 776‒77 (Tex. App.—Fort Worth 2003, no pet.).
In our duties as a reviewing court, we must conduct an independent
evaluation of the record to determine whether counsel is correct in determining
that the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922‒23 (Tex. App.—Fort
5
We also note that Father asserted only factual sufficiency grounds in his
motion for a directed verdict. While a trial court may grant a motion for judgment
on legal or factual sufficiency grounds, see Qantel Bus. Sys., Inc. v. Custom
Controls Co., 761 S.W.2d 302, 303 (Tex. 1988), a motion for directed verdict
challenges the existence of legally sufficient evidence to support a ground. See
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.
2000).
6
Mother filed what we construed to be a response.
12
Worth 1995, no pet.). Only then may we grant counsel’s motion to withdraw.
See Penson v. Ohio, 488 U.S. 75, 82‒83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the appellate record, counsel’s brief, and
Mother’s response. We agree that Mother’s appeal is wholly frivolous and
without merit. We find nothing in the record that might arguably support the
appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).
Accordingly, we grant Mother’s appellate counsel’s motion to withdraw.
V. CONCLUSION
Having overruled Father’s dispositive issues, we affirm the trial court’s
order terminating the parent-child relationship between Father and A.R. Having
determined that Mother’s appeal is wholly frivolous and without merit, and having
granted Mother’s appellate counsel’s motion to withdraw, we affirm the trial
court’s order terminating the parent-child relationship between Mother and A.R.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: July 17, 2014
13