in the Interest of K.W. and B.Y., Children ( 2009 )


Menu:
  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-08-162-CV
    IN THE INTEREST OF K.W. AND B.Y.,
    CHILDREN
    ------------
    FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    Introduction
    Appellant Dusty C. appeals from the trial court’s judgment terminating her
    parental rights to her minor children, K.W. and B.Y.       Appellant argues two
    issues: (1) the court erred by finding additional grounds for termination after
    accepting her voluntary affidavits of relinquishment, and (2) there is insufficient
    1
    … See Tex. R. App. P. 47.4.
    evidence to support the finding that the termination was in the children’s best
    interest We affirm.
    Factual and Procedural Background
    Appellant has two children, K.W. and B.Y. K.W. was born on March 2,
    1998, and B.Y. was born on January 26, 1999. Jeannie Maxey of the Texas
    Department of Family and Protective Services (“the Department”) received a
    referral of neglectful supervision and physical abuse of the children.      The
    referral contained allegations that Appellant was living with a girlfriend, Ms.
    Patterson, whom Appellant allowed to discipline the children, leading to reports
    that the children received bruises from spankings.      Patterson has multiple
    personality disorder and exhibits nine different personalities.    There were
    concerns about those personalities’ effect on the children, who have mental
    disorders as well. Patterson also has a personal history of sexual abuse, and
    both Appellant and Maxey were concerned about Patterson being around the
    children and possibly acting out sexually.
    In an April 2, 2007 interview with Maxey, Appellant admitted that she
    thought about giving up her children at their births and that she presently
    thought about giving them to someone else. She mentioned that K.W. was
    having violent outbursts. At that time, K.W. was living with one of Appellant’s
    friends. On May 21, the Department received another referral containing an
    2
    allegation of physical abuse of B.Y. by his maternal grandfather. Also in May
    2007, K.W. was admitted to a mental health hospital, and B.Y. was admitted
    shortly thereafter.
    On May 29, 2007, Appellant turned over custody of her children to the
    Department and stated she could no longer care for them. Because the children
    were in mental health hospitals at that time, they were not physically taken into
    the Department’s care. The Department filed its petition for protection of the
    children, for conservatorship, and for termination on May 31, 2007, with
    counsel appointed to represent Appellant all on the same date. The Department
    was named temporary managing conservator on June 8, 2007.
    On June 21, 2007, Appellant met with Department caseworker Katrina
    Mack to discuss her options, including relinquishing her parental rights. Mack
    conversed with Appellant and provided her with a conservatorship family
    service plan.   Mack offered Appellant services including parenting classes,
    individual counseling, family counseling; the plan also required housing and
    random drug testing. Mack testified that Appellant told her that she did not
    want to perform the services and wanted to relinquish her parental rights.
    Mack confirmed at trial that Appellant signed the service plan and stated in the
    parent’s comment section, “I would like to relinquish my parental rights.”
    3
    On July 2, 2007, Appellant and her attorney met with Mack and an
    attorney ad litem and signed affidavits of relinquishment of parental rights for
    K.W. and B.Y. Mack testified that Appellant signed the documents with her
    attorney in the room and indicated to Mack that she signed them voluntarily.
    At the termination trial on April 8, 2008, Appellant requested that the
    court invalidate her relinquishments. Despite this assertion, Appellant testified
    that she signed the relinquishments voluntarily. She stated that she was willing
    to take classes to learn to deal with the children’s disorders; earlier in the trial,
    she had discussed some of the children’s behavioral issues, including a poignant
    incident when she woke up to K.W.’s hands around her throat and K.W. saying
    that she “wanted to kill [her].” At the time of the hearing, Appellant had not
    completed any services suggested by the Department.
    Appellant testified that she tried to contact Mack several times about
    seeing her children during the months before the trial but that Mack did not
    answer her phone or return the calls.            When asked if she had made
    arrangements for both K.W. and B.Y.’s psychological counseling, in the event
    the court granted her custody, Appellant stated she had not.
    After the bench trial, the trial court granted the Department’s petition for
    termination. The trial court found that Appellant executed before the suit an
    unrevoked or irrevocable affidavit of relinquishment of parental rights as
    4
    provided by Chapter 161 of the Texas Family Code; knowingly placed or
    knowingly allowed the children to remain in conditions or surroundings which
    endangered the physical well-being of the children; engaged in conduct or
    knowingly placed the children with persons who engaged in conduct which
    endangers the     physical or emotional well-being of the children; and
    constructively   abandoned   the   children.    See   Tex.   Fam.   Code   Ann.
    § 161.001(1)(D), (E), (K), (N) (Vernon Supp. 2008). The trial court further
    found that termination was in the children’s best interest. 
    Id. § 161.001(2).
    The trial court terminated Appellant’s parental rights and appointed the
    Department as K.W. and B.Y.’s permanent managing conservator. 2 Appellant
    filed a motion for new trial and statement of points on appeal. The trial court
    denied the motion for new trial and found that an appeal would not be frivolous.
    2
    … At the close of the case, the Department requested that B.Y.’s
    father’s rights be terminated for constructive abandonment under section
    161.001(1)(N) of the family code because he did not file an answer or appear.
    Since K.W.’s father was considered unknown until Appellant admitted it could
    be one of two men, the court permitted the Department to terminate the rights
    of the unknown father with the knowledge that the Department could file a new
    petition at a later time.
    5
    Standard of Review
    A   parent’s   rights   to   “the   companionship,   care,   custody,   and
    management” of his or her children are constitutional interests “far more
    precious than any property right.”           Santosky v. Kramer, 
    455 U.S. 745
    ,
    758–59, 
    102 S. Ct. 1388
    , 1397 (1982); In re M.S., 
    115 S.W.3d 534
    , 547
    (Tex. 2003). “While parental rights are of constitutional magnitude, they are
    not absolute. 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.” In re C.H., 
    89 S.W.3d 17
    , 26 (Tex. 2002). In a termination case, the
    State seeks not just to limit parental rights but to end them permanently—to
    divest the parent and child of all legal rights, privileges, duties, and powers
    normally existing between them, except for the child’s right to inherit. Tex.
    Fam. Code Ann. § 161.206(b); Holick v. Smith, 
    685 S.W.2d 18
    , 20 (Tex.
    1985).       We strictly scrutinize termination proceedings and strictly construe
    involuntary termination statutes in favor of the parent. 
    Holick, 685 S.W.2d at 20
    –21; In re E.M.N., 
    221 S.W.3d 815
    , 820 (Tex. App.—Fort Worth 2007, no
    pet.).
    6
    In proceedings to terminate the parent-child relationship brought under
    section 161.001 of the family code, the petitioner must establish at least one
    ground listed under subdivision (1) of the statute and must also prove that
    termination is in the best interest of the child.         Tex. Fam. Code Ann.
    § 161.001(1), (2); 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).
    Termination of parental rights is a drastic remedy and is of such weight
    and gravity that due process requires the petitioner to justify termination by
    clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a);
    In re J.F.C., 
    96 S.W.3d 256
    , 263 (Tex. 2002). This intermediate standard falls
    between the preponderance standard of ordinary civil proceedings and the
    reasonable doubt standard of criminal proceedings. In re G.M., 
    596 S.W.2d 846
    , 847 (Tex. 1980); In re C.S., 
    208 S.W.3d 77
    , 83 (Tex. App.—Fort Worth
    2006, pet. denied). It is defined as 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
    (Vernon 2009).
    7
    The State’s Affidavits of Relinquishment
    and Alternate Statutory Grounds
    In her first issue, Appellant argues the trial court should have based the
    termination on her relinquishment affidavits or on alternate statutory grounds,
    but not both.   Appellant argues that the trial court caused harm to her by
    allowing the State to bring forth additional statutory grounds after proving that
    Appellant signed a voluntary relinquishment affidavit.3
    Under section 161.001 of the Texas Family Code, a trial court can
    authorize a termination based on proof the parent committed any one of the
    prohibited acts in subdivision (1) and proof that termination of parental rights
    is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(1)–(2); In re
    
    J.L., 163 S.W.3d at 84
    . The statute does not require the Department to elect
    between proceeding on the basis of voluntary relinquishment or proceeding on
    one of the other grounds listed in subdivision (1) of section 161.001. Tex.
    Fam. Code Ann. § 161.001(1). Also, there is no requirement in the statute and
    no case that holds that the trial court must, should, or may bifurcate the
    termination hearing procedure by first finding no valid voluntary affidavit of
    3
    … The State first argues that Appellant waived this issue, but she
    preserved error by listing this ground in her motion for new trial. See Tex. R.
    App. P. 33.1(a); In re L.M.I., 
    119 S.W.3d 707
    , 710–12 (Tex. 2003) (holding
    appellant failed to preserve error when the issue with the relinquishment
    affidavits was not raised in any post-judgment motion), cert. denied, 
    541 U.S. 1043
    , 
    124 S. Ct. 2175
    (2004).
    8
    relinquishment before considering other statutory grounds for termination. See
    In re D.E., 
    761 S.W.2d 596
    , 600–01 (Tex. App.—Fort Worth 1988, no writ.)
    (holding that no precedent existed to allow the final termination hearing to be
    bifurcated between the alleged ground of termination and the best interest of
    the child analysis). Moreover, Appellant cannot completely remove evidence
    from the trial court’s consideration as facts used in the best interest analysis
    often overlap with the statutory grounds; thus, evidence of endangering
    conduct and other predicate acts tend to emerge during the best interest
    analysis, regardless of the subdivision (1) grounds initially relied upon. See In
    re S.K.A., 
    236 S.W.3d 875
    , 903 (Tex. App.—Texarkana 2007, pet. denied);
    In re C.E.K., 
    214 S.W.3d 492
    , 503 (Tex. App.—Dallas 2006, no pet.) (stating
    that in some cases, the best interest of the child is infused with the statutory
    offensive behavior).
    Appellant has cited no law to support the policy argument that the
    Department’s proof of voluntary relinquishment ground should negate the trial
    court’s ability to review the Department’s additional grounds for termination
    before its subsequent best interest analysis. If the trial courts allowed this two-
    part inquiry, many parents who committed acts covered by other statutory
    grounds, such as endangerment, could avoid the repercussions of section
    161.001(1)(D) and (E) by simply signing an affidavit of relinquishment before
    9
    their termination hearing.4 That policy has yet to be accepted by any Texas
    court. We overrule Appellant’s first issue.
    Legal and Factual Sufficiency: Best Interests of the Children
    In her second issue, Appellant argues there was insufficient evidence to
    support the finding that the termination was in the children’s best interest.
    In reviewing the evidence for legal sufficiency in parental termination
    cases, we must determine whether the evidence is such that a factfinder could
    reasonably form a firm belief or conviction that the grounds for termination
    were proven.    In re J.P.B., 
    180 S.W.3d 570
    , 573 (Tex. 2005).         We must
    review all the evidence in the light most favorable to the finding and judgment.
    
    Id. This means
    that we must assume that the factfinder resolved any disputed
    facts in favor of its finding if a reasonable factfinder could have done so. 
    Id. We must
    also disregard all evidence that a reasonable factfinder could have
    disbelieved. 
    Id. We must
    consider, however, undisputed evidence even if it is
    contrary to the finding. 
    Id. That is,
    we must consider evidence favorable to
    4
    … Under section 161.001(1)(M), a court may order termination if a
    parent has “had his or her parent-child relationship terminated with respect to
    another child based on a finding that the parent’s conduct was in violation of
    Paragraph (D) or (E) or substantially equivalent provisions of the law of another
    state.” Tex. Fam. Code Ann. § 161.001(1)(M). Because of ground (M) of the
    statute, the parent could lose parental rights to another child based on previous
    terminations based on (D) or (E). See 
    id. 10 termination
    if a reasonable factfinder could, and disregard contrary evidence
    unless a reasonable factfinder could not. 
    Id. We must
    therefore consider all of the evidence, not just that which favors
    the verdict. 
    Id. But we
    cannot weigh witness credibility issues that depend on
    the appearance and demeanor of the witnesses, for that is the factfinder’s
    province.   
    Id. at 573–74.
      And even when credibility issues appear in the
    appellate record, we must defer to the factfinder’s determinations as long as
    they are not unreasonable. 
    Id. at 573.
    In reviewing the evidence for factual sufficiency, we must give due
    deference to the factfinder’s findings and not supplant the judgment with our
    own. In re H.R.M., 
    209 S.W.3d 105
    , 108 (Tex. 2006). We must determine
    whether, on the entire record, a factfinder could reasonably form a firm
    conviction or belief that the termination of the parent-child relationship would
    be in the best interest of the child. 
    C.H., 89 S.W.3d at 28
    . 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. 
    H.R.M., 209 S.W.3d at 108
    .
    Prompt and permanent placement of the child in a safe environment is
    presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)
    11
    (Vernon 2002). There is also 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). Nonexclusive factors that the trier of fact in a termination case may use
    in determining the best interest of the child include:
    (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 which may indicate
    that the existing parent-child relationship is not a
    proper one; and
    (9)   any excuse for the acts or omissions of the parent.
    Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976).
    These factors are not exhaustive; some listed factors may be inapplicable
    to some cases; other factors not on the list may also be considered when
    appropriate. 
    C.H., 89 S.W.3d at 27
    . Furthermore, undisputed evidence of just
    12
    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
    finding. 
    Id. In addition
    to the Holley factors, the factfinder may also consider:
    a parent’s inability to provide adequate care for the child, lack of parenting
    skills, poor judgment, and repeated instances of immoral conduct when looking
    at the child’s best interest.    In re C.A.J., 
    122 S.W.3d 888
    , 893 (Tex.
    App.—Fort Worth 2003, no pet.). We now address those factors for which
    relevant evidence was admitted; some factors are combined due to overlapping
    evidence.
    1.    The emotional and physical needs of K.W. and B.Y. now and in the
    future, the plans for K.W. and B.Y. by the Department, and the stability
    of their proposed placement
    The evidence submitted at trial indicates that K.W. and B.Y. both have
    significant emotional needs and behavioral issues that Appellant did not appear
    prepared to handle at the time of the hearing. For instance, Mack testified that
    both of the children have post-traumatic stress disorder, bipolar tendencies, and
    attention-deficit hyperactivity disorder (“ADHD”). Additionally, she stated that
    K.W. has a severe case of attachment disorder.
    Regarding behavioral issues, Appellant testified that both her children
    exhibit violent behaviors. She elaborated by recalling an incident where K.W.
    13
    banged her head against a bathroom door, causing a mirror to crash into B.Y.,
    and another incident where K.W. choked Appellant while telling her that she
    wanted to kill her.
    Despite her testimony regarding the children’s substantial emotional needs
    and her inability to handle their behavior, at the time of trial Appellant had not
    made any arrangements for psychological help, counseling, or other services.
    Additionally, even though Appellant testified that she attended three or four
    parenting classes, she admitted that she did not complete the classes or any
    other parts of her service plan. Appellant did testify that she was willing to
    take classes to learn about her children’s disorders; however, at the time of
    trial, she had not taken advantage of any services that had been offered to her.
    By contrast, Mack testified that the Department’s placement of K.W. and
    B.Y. at the time of trial provided the stability they needed to make progress
    with their behavioral and emotional needs. At the time of trial, K.W. was in a
    therapeutic foster home that was adoption-motivated. Although K.W. struggled
    academically because of her ADHD and other behavioral problems, she received
    assistance through a modified setting and schedule at school.           B.Y. also
    received assistance for his behavioral issues and emotional needs through a
    residential treatment facility.   Mack testified that he was showing signs of
    progress through his placement. Finally, Mack testified that both K.W. and B.Y.
    14
    were adoptable and that the Department’s primary motivation was to keep the
    children together.
    2.    The present and future potential emotional and physical danger to K.W.
    and B.Y.
    Evidence at trial showed that Appellant has a history of using
    methamphetamine in the presence of K.W. and B.Y., an act that placed the
    children in a dangerous environment. See In re J.T.G., 
    121 S.W.3d 117
    , 125
    (Tex. App.—Fort Worth 2003, no pet.) (stating that parental illegal drug use
    supports the conclusion that the children’s surroundings endanger their physical
    and emotional well-being). Despite Appellant’s bipolar diagnosis, she did not
    take medication and had not sought treatment from a mental health expert.
    This evidence also tended to show a potential emotional and physical danger
    to the children. See In re K.A.S., 
    131 S.W.3d 215
    , 226 (Tex. App.—Fort
    Worth 2004, pet. denied) (discussing the emotional and physical danger of the
    mother’s noncompliance in taking medications for her bipolar disorder).
    Mack also testified about Patterson’s presence as another potential
    danger to the children, due to her personality disorder and history of sexual
    abuse. At the time of trial, Appellant had only been employed for three weeks
    and was still living with and dependent on Patterson. See In re D.S., 
    176 S.W.3d 873
    , 879 (Tex. App.—Fort Worth 2005, no pet.) (holding that evidence
    15
    of a parent’s unstable lifestyle, including drug use and inability to provide a
    stable home, can support a factfinder’s conclusion that termination is in the
    child’s best interest), superseded by statute on other grounds as recognized in
    In re D.A.R., 
    201 S.W.3d 229
    , 230–31 (Tex. App.—Fort Worth 2005, no pet.).
    3.    Parental abilities and the acts or omissions of the parent which may
    indicate that the existing parent-child relationship is not a proper one
    The evidence at trial indicated that Appellant lacked significant parental
    abilities and that the relationship was not proper between Appellant and her
    two children. During an earlier investigation, Appellant told Maxey that she had
    thought about giving up both children for adoption when they were born.
    Appellant had a history of Department investigations.
    Appellant voluntarily turned over custody of K.W. and B.Y. to the
    Department on May 30, 2007. Appellant then voluntarily executed irrevocable
    affidavits of relinquishment of parental rights on July 2, 2007.     During the
    period between turning over custody in May 2007 to the time of trial in April
    2008, Appellant did not contact anyone at the Department or inform them that
    she had changed her mind.
    At trial, Appellant testified that she voluntarily signed two affidavits of
    relinquishment of parental rights with the assistance of counsel. She stated
    that during the meeting Appellant’s attorney explained the documents she
    16
    would be signing and the rights she would be giving up as a result. Appellant
    stated at trial that she not only understood the rights she was giving up but
    also that the documents she was signing were both irrevocable and permanent.
    In fact, at trial, Appellant herself stated that she thought relinquishing her
    parental rights was “in the best interest” of K.W. and B.Y. when she signed the
    affidavits of relinquishment.
    Evidence also shows that after signing the affidavits of relinquishment,
    Appellant had only seen K.W. and B.Y. on one occasion, a goodbye meeting
    that took place in July 2007. She had sent correspondence to the children and
    contacted the Department on three occasions to ensure the cards reached K.W.
    and B.Y. According to Mack, Appellant never contacted the Department to
    request a visit with the children. Mack testified that the first time she heard
    that Appellant had expressed second thoughts about relinquishing her parental
    rights was at the termination trial in April 2008.
    At trial, Mack testified that Appellant had not provided K.W. and B.Y.
    with a stable environment. Mack stated that the Appellant moved the children
    around a lot and assigned several of her numerous partners the job of
    disciplining the children.   One of Appellant’s partners physically abused the
    children, causing bruising. And the Department ruled that there was “reason
    to believe” Appellant was not protective of her children after she allowed her
    17
    current partner, Patterson, to discipline K.W. and B.Y. by spanking them,
    bruising them, and leaving marks on them. The Department also found “reason
    to believe” in the case alleging abuse of B.Y. by his maternal grandfather during
    a visit in 2006. Ample evidence supported the conclusions that Appellant lacks
    parental abilities and Appellant’s acts and omissions indicated her relationship
    with K.W. and B.Y. was not a proper relationship.
    4.    Excuses for the acts or omissions of Appellant
    Appellant admitted that she knowingly and voluntarily signed irrevocable
    affidavits relinquishing her parental rights, but she testified that she wanted her
    children back. She testified she would take classes to learn to deal with their
    disorders and that she had been reading about the children’s diagnoses.
    Despite this assertion, Appellant failed to complete any of the services provided
    for her by the Department up to the time of trial. Appellant testified that she
    tried to call the Department to schedule visitation with K.W. and B.Y. but she
    could not remember the dates she tried to call and did not leave messages each
    time she called.
    Considering all the evidence relevant to the Holley factors, we hold that
    a factfinder could reasonably have formed a firm belief or conviction that
    termination of Appellant’s parental rights as to K.W. and B.Y. is in their best
    interest. Accordingly, we hold that the evidence was legally sufficient. We
    18
    also hold, based on the entire record, that the evidence was factually sufficient
    to support the trial court’s best interest finding. Thus, we overrule Appellant’s
    second issue.
    Conclusion
    Having overruled both of Appellant’s issues, we affirm the trial court’s
    termination order.
    ANNE GARDNER
    JUSTICE
    PANEL: DAUPHINOT and GARDNER, JJ.; and DIXON W. HOLMAN, J. (Senior
    Justice, Retired, Sitting by Assignment).
    DELIVERED: February 19, 2009
    19