in the Interest of D.J v. a Child ( 2015 )

Affirmed and Memorandum Opinion filed October 27, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00419-CV
IN THE INTEREST OF D.J.V., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2013-04657J
MEMORANDUM OPINION
A.B.S. (Mother) appeals the trial court’s final decree terminating her
parental rights with respect to her son, David.1 David’s father, whose parental
rights were also terminated, does not appeal. Mother raises two issues concerning
the legal and factual sufficiency of the evidence to support the trial court’s findings
1
We use fictitious names to refer to the children discussed in this opinion. See Tex. R.
App. P. 9.8(b)(2).
that termination was proper under section 161.001(1)(O) of the Texas Family
Code2 and that termination is in David’s best interest. We affirm.
I. BACKGROUND
Mother has three children by three fathers: Sean, born in May 2005; David,
born in February 2009; and Jason, born in November 2011. David is the sole
subject of this proceeding, though facts about Sean and Jason are relevant.
Over the course of fifteen days in June 2013, the Texas Department of
Protective and Family Services (the Department) received three referrals regarding
the safety of the boys, all of whom lived with Mother. The first concerned a knot
on the back of Jason’s head. The second and third arose from allegations that
Mother left the boys alone at least three times for hours at a time. The last time
Mother left them alone, Sean reportedly went door to door in their apartment
complex asking for food. A neighbor called the police. The police arrested Mother
for child endangerment of Jason. The Department then took the children into
protective custody, and the trial court appointed the Department temporary
managing conservator of David.
Trial began on August 14, 2014, and spanned three days over eight months.3
The Department sought termination of Mother’s parental rights under section
161.001(1)(D), (E), (L), and (O) of the Family Code. Tex. Fam. Code Ann.
§ 161.001(1) (West 2014). Following closing arguments, the trial court announced
2
The numbering of section 161.001 changed effective September 1, 2015. Section
161.001(1) is now section 161.001(b)(1). Act of June 18, 2015, 84th Leg., R.S., ch. 944, § 11,
2015 Tex. Sess. Law. Serv. 3271 (West) (to be codified at Tex. Fam. Code Ann.
§ 161.001(b)(1)). Mother’s case is governed by the preceding version, effective January 1, 2011.
We refer to the 2011 version in this opinion.
3
Jason was the subject of another termination proceeding and was living with his
paternal grandmother while his father petitioned another court for primary custody. Sean was
living with his father, who planned to petition for primary custody as well.
2
on the record its findings that termination was warranted under two of the four
subsections: L (violation of the Penal Code) and O (failure to comply with the
court-ordered family service plan). The court also found termination of Mother’s
and David’s father’s parental rights was in David’s best interest. Id. § 161.001(2).
The court signed the final decree of termination on April 15, 2015, memorializing
its oral findings and appointing the Department as David’s sole managing
conservator. Mother timely appealed.
II. BURDEN OF PROOF AND STANDARDS 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. The child’s emotional and physical interests must not be sacrificed
merely to preserve the parent’s rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code Ann. § 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; accord
In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a
heightened standard of review. In re S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act described in section 161.001(1)
of the Texas Family Code; and (2) termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.001. Only one predicate finding under section
3
161.001(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).
In reviewing the legal sufficiency of the evidence in a termination case, we
must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009); In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25. We assume the
fact finder resolved disputed facts in favor of its finding if a reasonable fact finder
could do so, and we disregard all evidence a reasonable fact finder could have
disbelieved. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence.
See In re 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.” In re 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 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 are not to
“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).
4
III. PREDICATE TERMINATION GROUNDS
The trial court predicated termination of Mother’s parental rights on
subsections L and O of section 161.001(1) of the Texas Family Code.
Mother does not challenge the subsection L finding on appeal. An
unchallenged fact finding is binding on an appellate court “unless the contrary is
established as a matter of law, or if there is no evidence to support the finding.”
McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402
S.W.3d 239, 249 (Tex. 2013) (unchallenged findings of fact supported termination
under section 161.001(1)(O) because record supported those findings); In re
C.N.S., No. 14–14–00301–CV, 2014 WL 3887722, *7 (Tex. App.—Houston [14th
Dist.] Aug. 7, 2014) (mem. op.) (same).
As discussed below, our review of the record leads us to conclude there is no
evidence of one of the facts necessary to support a finding under subsection L.
Therefore, that finding, even though unchallenged by Mother, is not binding on us.
A. Violations of the Penal Code (Subsection L)
Subsection L permits termination when clear and convincing evidence
shows the parent “has been convicted or placed on community supervision,
including deferred adjudication community supervision, for being criminally
responsible for the death or serious injury of a child under . . . [certain] sections of
the Penal Code. . . .” Tex. Fam. Code Ann. § 161.001(1)(L); In re A.L., 389
S.W.3d 896, 900 (Tex. App.—Houston [14th Dist.] 2012, no pet.). “Serious
injury” is not defined in the Family Code. When a term is not defined in a statute,
we apply its ordinary meaning. Tex. Gov’t Code Ann. § 312.002 (West 2013); City
of San Antonio v. Hartman, 201 S.W.3d 667, 672 n.19 (Tex. 2006); In re A.L., 389
S.W.3d at 901. We previously described “serious injury” as follows:
5
“Serious” means “having important or dangerous possible
consequences,” while “injury” means “hurt, damage, or loss
sustained.”
In re A.L., 389 S.W.3d at 901 (following C.H. v. Dep’t of Family & Protective
Servs., No. 01–11–00385–CV, 01–11–00454–CV, 01–11–00455–CV, 2012 WL
586972, *6 (Tex. App.—Houston [1st Dist.] Feb. 23, 2012, pet. denied) (mem.
op.).
One of the enumerated sections of the Penal Code is section 22.041, which
concerns abandoning or endangering a child. Id. § 161.001(1)(L)(x). A person
commits an offense under section 22.041 if she “knowingly, recklessly, or with
criminal negligence, by act or omission, engages in conduct that places a child
younger than 15 years in imminent danger of death, bodily injury, or physical or
mental impairment.” Tex. Penal Code Ann. § 22.041(c) (West 2011).
Subsection L requires proof of two facts: (1) the death or serious injury of a
child, for which (2) the parent was convicted or placed on community supervision.
See In re A.L., 389 S.W.3d at 900–01 (“serious injury” requirement applies to each
offense listed in subsection L).
The Department introduced evidence of two deferred adjudications for
Mother: one for endangering Jason in 2013 (the offense for which she was arrested
when this case began), and one for endangering David in 2011. Mother pleaded
guilty to both charges.
Charge of endangering Jason. Mother signed a judicial confession in which
she agreed that on or about June 22, 2013, she intentionally and recklessly placed
Jason in danger of bodily injury by leaving him in the apartment without food or
adult supervision.4
4
However, in her statements to Department personnel and in her testimony at trial, she
6
Charge of endangering David. The record does not contain the judicial
confession or the indictment for the 2011 deferred adjudication concerning David,
so we do not know the facts she confessed. Mother testified about that charge at
trial, though:
Q. [Y]our conviction in 2011, you left your children home alone;
is that correct?
A. Yes.
Q. And you pled guilty to endangering your children and leaving
them home alone?
A. Yes.
Q. In that case, they were home alone all night and your children
went in to a neighbor’s house at midnight and fell asleep on a
neighbor’s couch; is that accurate?
A. No.
Q. But you still pled guilty?
A. Part of it is accurate and the other part not accurate.
Q. But you pled guilty to that, correct?
A. Yes.
There is evidence of both deferred adjudications, but there is no evidence of
a serious injury to either Jason or David that resulted from Mother’s endangering
them. While death or serious injury is an inherent element of some of the offenses
listed in subsection L (e.g. murder, manslaughter, and assault), “serious injury is
not an element of child endangerment.” In re N.M., No. 07–13–00325–CV, 2014
WL 718657, *4 (Tex. App.—Amarillo Feb. 21, 2014, no pet.) (mem. op.) For that
reason, the Department was required to prove the child suffered a serious injury.
Because we do not know the facts underlying the 2011 deferred adjudication, we
denied leaving him alone. She said she was advised to “plead guilty or [the Department is] going
to terminate my rights while I was on trial for the criminal case.”
7
cannot say if David suffered a serious injury. Therefore, the Department failed to
meet its burden of proof with regard to subsection L.
Because we are not bound by the trial court’s finding on subsection L, we
will not affirm the judgment on the basis of that finding. Accordingly, we will
review the evidence to support the trial court’s finding under subsection O.
B. Failure to Comply with Court Order (Subsection O)
Termination is warranted if the court finds by clear and convincing evidence
that the parent:
failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of
the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services
for not less than nine months as a result of the child’s removal from
the parent under Chapter 262 for the abuse or neglect of the child.
Tex. Fam. Code Ann. § 161.001(1)(O).
Mother concedes (1) she failed to comply with the court-ordered family
service plan, and (2) the Department had temporary managing conservatorship of
David for not less than nine months. However, she contends the Department did
not prove the third element: that David was removed from her care due to abuse or
neglect.
1. “Removal . . . for the abuse or neglect of the child”
In the past, courts of appeals disagreed about what it meant for a child to be
removed for abuse or neglect. Some held only the actual abuse or neglect satisfied
that portion of subsection O.5 At least one held “abuse or neglect” under subsection
O includes the risk of abuse or neglect.6
5
See, e.g., In re C.B., 376 S.W.3d 244, 252 (Tex. App.—Amarillo 2012, no pet.); Mann
8
In 2013, the Texas Supreme Court agreed with the latter holding and
concluded subsection O contemplates both actual abuse or neglect and the risk of
abuse or neglect. In re E.C.R., 402 S.W.3d at 246. The court wrote:
“[A]buse or neglect of the child” necessarily includes the risks or
threats of the environment in which the child is placed. Part of that
calculus includes the harm suffered or the danger faced by other
children under the parent’s care.
Id. at 248.
Mother argues that although she was arrested for endangering Jason, the
Department did not prove she abused or neglected David. That argument is
unpersuasive for two reasons. First, the supreme court rejected it in In re E.C.R.
Evidence of “danger faced” by Jason is some evidence that David was removed for
abuse or neglect. See id. at 248. Second, as we discuss next, the record contains
legally and factually sufficient evidence of Mother’s actual neglect of David, not
just a risk of neglect due to her neglect of one of his brothers.
2. Evidence of abuse or neglect of the children
Mother was charged twice for child endangerment. She pleaded guilty to
each charge. She admitted at trial that she left the children, who were not old
enough to care for themselves, alone on the day she was arrested and they were
removed. Considering all the evidence in the light most favorable to the finding,
and disregarding all the evidence the trial court could reasonably have disbelieved,
we conclude the evidence is legally sufficient to support the trial court’s finding
that David was removed from Mother’s care due to abuse or neglect.
v. Dep't of Family & Protective Servs., No. 01–08–01004–CV, 2009 WL 2961396, at *7–8 (Tex.
App.—Houston [1st Dist.] Sept. 17, 2009, no pet.) (mem. op.); In re S.A.P., 169 S.W.3d 685,
706–07 (Tex. App.—Waco 2005, no pet.).
6
In re M.L.J., No. 02–07–00178–CV, 2008 WL 1932076, *5 (Tex. App.—Fort Worth
May 1, 2008, pet. denied) (mem. op.).
9
At trial Mother said her guilty plea to one of two charges of child
endangerment was false in that she did not leave her children alone. She also
contended the children were supervised by her neighbor. That testimony is relevant
to our factual sufficiency review, in which we consider the entire record, including
disputed or conflicting evidence. However, we cannot say her denials are so
significant that the trial court could not have reasonably found David was removed
due to abuse or neglect. We are mindful of our role as reviewers; we give due
deference to the trial court’s findings, and we cannot substitute our judgment for
the trial court’s judgment. See In re H.R.M., 209 S.W.3d at 108.
Mother concedes (1) she failed to complete court-ordered services, and
(2) the Department was David’s temporary managing conservator for not less than
nine months. The trial court’s finding as to the third requirement of section
161.001(1)(O), that David was removed from Mother’s care for abuse or neglect, is
supported by legally and factually sufficient evidence. We overrule Mother’s first
issue.
IV. BEST INTEREST OF THE CHILD
Termination must also be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(2). We review the entire record in deciding a challenge to the court’s
best-interest finding. See In re E.C.R., 402 S.W.3d at 250.
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam). Prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest. See Tex. Fam. Code
Ann. § 263.307(a).
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Courts may consider the following non-exclusive 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
emotional and physical 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 which may indicate 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.).
In addition, the Texas Family Code sets out thirteen factors to be considered
in evaluating a parent’s willingness and ability to provide the child with a safe
environment. See Tex. Fam. Code Ann. § 263.307(b). Factors applicable to this
case include:
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 harm to the
child;
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. whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home;
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;
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11. the willingness and ability of the child’s family to effect
positive environmental and personal changes within a
reasonable period of time; and
12. whether the child’s family demonstrates adequate parenting
skills, including providing the child 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; and
(f) an understanding of the child’s needs and capabilities.
See id.; In re R.R., 209 S.W.3d at 116.
A. Mother’s parenting abilities
As required by her family service plan, Mother completed an eight-week
course called “Nurturing Program Parenting Class.” She also underwent a
psychological evaluation and engaged in individual therapy and family therapy
with David and Jason.
The therapy sessions are best considered in three groups: sessions in early
2014 (the First Therapy Sessions); sessions later in 2014, which occurred after trial
began (the Second Therapy Sessions); and sessions in early 2015, which occurred
between the second and third days of trial (the Third Therapy Sessions). Denise
Jones7 conducted the evaluation, the First Therapy Sessions, and the Second
Therapy Sessions. Her supervisor, Uche Chibueze, conferred with Jones weekly
about the case. Gabriella Morgan conducted the Third Therapy Sessions.
First Therapy Sessions. According to Chibueze, Mother attended and was
an active participant in all the First Therapy Sessions. She met all her treatment
goals, including improving her parenting abilities and being able to modulate her
7
Jones is alternately referred to in the record as Angela and Denise.
12
emotions when parenting her children. Still, there was work to be done,
specifically with how Mother dealt with David’s behavior outbursts. At the time
she testified, in August 2014, Chibueze did not recommend termination of
Mother’s parental rights. Instead, she recommended Mother continue to get
services and the case be reevaluated in the future.
Jones testified in January 2015. She confirmed Mother attended all the First
Therapy Sessions, actively engaged in the process, was open to suggestions, and
welcomed Jones’ input on how to be a better parent. Throughout the First Therapy
Sessions, Mother improved in interacting with David and Jason, showing them
affection and responding appropriately when they acted out or were upset. Mother
admitted she made a mistake by leaving her children alone, and over time she grew
to understand the gravity of her choice. However, she did not disclose that she had
been charged with child endangerment. Jones said her failure to disclose that fact
“was a concern.”
Mother was discharged from therapy once she completed the First Therapy
Sessions. Jones recommended in her closure report that Mother be able to spend
more time with her children in a community setting more casual than the
Department’s office, such as McDonald’s or a park.
Problematic visits with David. Following her discharge, Mother had
community visits with David and Jason for about three months. According to
caseworker Nicole Franco, however, the visits did not go well. Franco testified
about a two-hour visit at McDonald’s in October 2014:
[The visit] was particularly disturbing to me because it was very
similar to the very first visitation that I had ever, ever observed with
this family in regards to the way mom interacted with the children.
[David] had an emotional breakdown the entire — just about the
entire visitation. Mom was not able to console him. She regressed
13
back to the same behaviors that I observed in that very first visit when
I was first assigned the case. She would call him a baby, compare him
to a sibling and tell him there was nothing wrong. That was the visit
where she had grabbed his wrist and pulled him face to face with her.
She wasn’t consistent and put him in time out telling him he had to sit
there for not an appropriate amount of time. And then she would come
back and start talking to him again. She got frustrated and left the
visitation area. Went out to her car and then she had kept going out to
purchase food. She went out and got her cell phone and plugged it into
the wall in her cell phone [sic] and [David] was clinging to her legs
crying.
The other child [Jason] was crawling up into a chair behind her and,
finally, I had to tell her to turn around and supervise him. It was just
that it was really disturbing in the sense that I didn’t see the
application of any of the skills that I know has [sic] been taught
during the parenting classes or that were noted to be reinforced during
therapy sessions.
Franco then sent Mother back to therapy for the Second Therapy Sessions.
Second Therapy Sessions. Jones saw Mother and David together only once
in the Second Therapy Sessions. She said the visit took place at the Department’s
office and Mother’s interaction with David was “fine that day.” David and Mother
had a bond, and David liked the interaction with her. Jones said it “might be
beneficial for both of them to continue to have a relationship.”
However, when asked if Mother seemed to have learned the skills Jones
taught her, Jones answered, “Not at this time.” (“This time” was January 2015.)
She recommended that David not be returned to Mother at that point, though she
was not foreclosing the possibility that it would be appropriate to return him to her
in the future. Jones said as long as Mother could “make the needed changes and get
some help,” she did not recommend termination of Mother’s rights.
Third Therapy Sessions. Gabriella Morgan testified on the third day of trial,
in April 2015. She had met with Mother twice, once individually and once with
14
David, about a month earlier. She was aware Mother and David had been in
therapy in 2014, but she did not have access to Chibueze’s and Jones’ reports.
The Third Therapy Sessions seem to have been similar to the First Therapy
Sessions in terms of Mother’s good attitude and progress. Mother was open to
educational comments, was willing to accept Morgan’s help, and seemed sincere
about wanting to become a better mother.
Mother had learned in a previous session (the record is not clear which
therapist conducted that session) that she should get on the floor and play with the
children. For her family session with David, Mother wore comfortable clothes,
rather than a dress, so she could crawl around the floor and play. David began to
cry and became very clingy with Mother during that visit. Morgan encouraged
Mother to “use positive body language and firm words to decrease his level of
anxiety.” David responded well.
However, Morgan said Mother denied leaving her children alone. Morgan
implied her denial was troublesome:
The first thing I look for is acknowledgement, taking responsibility,
accountability, and that tells me that is the first sign there is a potential
for change. . . . And I did not hear that.
Morgan concluded by agreeing Mother would benefit from continuing to work on
the behavior techniques she was learning.
B. Substance abuse
Franco believed Mother tested positive for marijuana early in the case.
However, she said Mother tested negative on all her subsequent drug and alcohol
screenings.
Jones mentioned Mother’s substance abuse in her therapy progress reports.
She said Mother admitted to using drugs occasionally and choosing to associate
15
with people who used drugs. She was able to express why using drugs is a poor
choice, and she understood how it affects her ability as a parent.
C. Stability and permanency
Mother. Mother secured suitable housing for herself and the children. She
rented a two-bedroom apartment. The family service plan required her to identify
any person living with her and state the nature of their relationship. In April 2014,
the Department learned an undisclosed paramour might be living with Mother. She
denied the allegation.
Mother maintained employment throughout the case. She had several jobs.
She said she sometimes worked two jobs at a time.
Proposed placement. The Department wanted David to live with and be
adopted by his maternal aunt, Mother’s older sister. His aunt testified that David
was “absolutely” happy in her home. She said, “I don’t consider him a handful. I
consider the fact that he has been through a lot, and I can tell that, you know, he is
lacking something.” David calls his aunt “Mom,” but when talking to a third party,
he refers to her as his “auntie.”
Child Advocates, Inc. was appointed to be David’s guardian ad litem.
Meredith Wallace, the advocacy coordinator for Child Advocates, testified Child
Advocates also wanted David to be adopted by his aunt. Wallace believed
termination was in David’s best interest because Mother “has not shown that she
can support a safe and stable environment for herself.”
D. David
Desires and needs. David was five years old when trial began and a little
over six when it concluded. He did not testify at trial, and no evidence was
16
presented about his desires. The record does not reflect any special physical needs
he may have.
Jones’ therapy progress reports note that David has difficulty expressing his
feelings and controlling his emotions. Over the course of therapy sessions with
David, Mother improved in interacting with him. She was “very supportive and
interactive” throughout one of the later of the First Therapy Sessions and was
“doing better showing affection and expressing support and appreciation.” Even
with David’s and Mother’s progress, Jones concluded David “will need more
specialized behavior modification intervention” in the future.
Franco testified about David’s progress over the nearly two years he had
been in the Department’s custody. In June 2013, he was shy and had scars down
his back. He struggled with communicating, especially with expressing his
emotions. He was developmentally behind in social skills, such as eating at a table
with utensils. (Mother denied the accuracy of that assessment.) By the time of trial,
David had made “significant progress” with his social skills, but Franco said he
regresses when he is with Mother during visits and therapy sessions. According to
Franco, “[h]e gets very clingy, very attention seeking. He has emotional
breakdowns. He won’t make eye contact. Not very playful or interactive. And kind
of jealous of his sibling and, like, wanting more attention.” Following visits with
Mother, David reportedly would sometimes urinate in bed and would always have
an increase in behavioral problems at school.
Danger. The record contains evidence, discussed above, that David was
endangered while living with Mother. Mother signed a Child Safety Evaluation
and Plan dated April 17, 2012, in which she “agree[d] not to leave her children
unattended.” Nonetheless, she left David and his brothers alone and unsupervised.
17
Mother pleaded guilty to charges of child endangerment of David and Jason.
She contends, however, that she was not in fact guilty of either charge. Mother also
disputes that the children were unsupervised on the day of her arrest; she maintains
she arranged for a neighbor to supervise them.
Considering all the evidence, as we are charged to do in a best-interest
evidentiary review, we conclude the trial court could reasonably have found
termination of Mother’s parental rights was in David’s best interest. We overrule
Mother’s second issue.
V. CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
18