in the Interest of C.Y., Children ( 2004 )

MEMORANDUM OPINION No. 04-03-00882-CV IN THE INTEREST OF C.Y., et al., Children From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2002-PA-01978 Honorable Peter Sakai, Associate Judge Presiding ⁽¹⁾

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: June 23, 2004

AFFIRMED

In one issue, Chalom Pittman ("Pittman") appeals the trial court's order terminating his parental rights to his daughter. We affirm.

Background

The Texas Department of Protective and Regulatory Services (the "Department") petitioned the court to terminate Pittman's parental rights to his step-children, C.Y. and P.Y., and his biological daughter, H.P. After a bench trial, the court found by clear and convincing evidence that termination of Pittman's parental rights was in the best interest of his daughter because Pittman had engaged in conduct that endangered her physical or emotional well-being, and because he had failed to comply with his court-ordered service plan. This appeal is limited to the termination of Pittman's parental rights involving his daughter, H.P.

Analysis

On appeal, Pittman contends the evidence is legally and factually insufficient to support the trial court's termination of his parental rights to H.P. Specifically, he argues the evidence does not support a finding that termination was in the child's best interest or that he failed to comply with the court-ordered service plan. He also argues that the trial court erred in considering C.Y.'s outcry statement because it was inadmissible hearsay. The outcry statement contained allegations that Pittman had sexually abused his step-daughter, C.Y., on several occasions.

In proceedings to terminate the parent-child relationship, the Department must establish that the parent committed one or more acts or omissions listed under section 161.001(1) of the Texas Family Code and that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2003); In re S.D., 980 S.W.2d 758, 761-62 (Tex. App.--San Antonio 1998, pet. denied).

The burden of proof in a termination of parental rights case is "clear and convincing" evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In determining if the evidence is legally sufficient to support the trial court's findings, we consider all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Id. at 266. The reviewing court must assume the factfinder resolved the disputed facts in favor of its finding if a reasonable factfinder would do so. Id.

In a factual sufficiency review, we review the entire record giving due consideration to evidence the factfinder could have reasonably found to be clear and convincing. Id. We also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id.

In this case, the Department alleged that Pittman's culpable conduct consisted of endangering H.P.'s physical or emotional well-being and that terminating his parental rights was in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1)(D), (E). The trial court heard testimony from two caseworkers and the mother of C.Y. and H.P. The first caseworker, Carol Saldana ("Saldana"), testified that it was in H.P.'s best interest to terminate Pittman's parental rights. Saldana stated that Pittman had failed to complete his court-ordered service plan and that he had two prior convictions for domestic violence. Saldana also testified that Pittman was charged in two pending criminal cases, both involving aggravated sexual assault of a child.

The other caseworker, Hung Pho ("Pho"), testified that when he interviewed C.Y., she made an outcry statement asserting that Pittman had committed sexual acts against her. Pho stated that he had no reason to believe C.Y. was lying or being manipulative. He testified that C.Y. had suffered significant emotional harm and that she was likely trying to protect her younger half-sister, H.P. Pho opined that if C.Y. had been called to testify, it would have resulted in further trauma to her. He concluded that Pittman's parental rights should be terminated because it was in the best interest of both children.

C.Y. and H.P.'s mother, May Kyung Pittman ("May"), testified that she had witnessed Pittman sexually assault H.P. on at least one occasion, and believed he had also abused her other daughter, C.Y. When shown the outcry statement, May verified that it was in C.Y.'s handwriting and that C.Y.'s signature appeared at the end of the report. May testified that it was in the best interest of H.P. to terminate Pittman's parental rights.

Pittman did not testify at trial. On appeal, he fails to cite any proof that the evidence was insufficient to support the order terminating his parental rights. Pittman contends that the trial court erred in not holding a hearing to determine the reliability of C.Y.'s outcry statement. In a nonjury trial, however, we presume the court made the required finding of reliability of an outcry statement upon proper objection. In re J.S., 35 S.W.3d 287, 293 (Tex. App.--Fort Worth 2001, no pet.). Furthermore, he does not offer a clear and concise argument as to how the statement's admission likely caused the rendition of an improper judgment in light of the entire record. See Tex. R. App. P. 44.1(a); In re K.S., 76 S.W.3d 36, 41-42 (Tex. App.--Amarillo 2002, no pet.).   

Based on the evidence presented at trial, we conclude that the evidence was legally and factually sufficient to support termination of Pittman's parental rights to his daughter, H.P. See In re J.F.C., 96 S.W.3d at 266. Accordingly, we affirm the trial court's decision.

Phylis J. Speedlin, Justice

1. The Honorable David Berchelmann is the presiding judge of the 37th Judicial District Court in Bexar County, Texas. Pursuant to the Texas Family Code, which authorizes trial courts to refer certain family law matters to associate judges, the Honorable Peter Sakai was the presiding judge at trial. See Tex. Fam. Code Ann. § 201.005 (Vernon 2004). The Honorable Martha Tanner, presiding judge of the 166th Judicial District Court in Bexar County, Texas signed the order in this matter.