in the Interest of D.L.S., L.J.S., and C.S.S., Children ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00033-CV
IN THE INTEREST OF
D.L.S., L.J.S., AND C.S.S., CHILDREN,
From the 74th District Court
McLennan County, Texas
Trial Court No. 2007-4731-1,2
MEMORANDUM OPINION
Appellant Christina “Doe,” the mother of D.L.S., L.J.S., and C.S.S., appeals the
termination of her parental rights, asserting twenty-six issues. We will affirm.
Background
In May 2007, when C.S.S. was nine months old, he was under the care of his
father Chris and nearly drowned in the bathtub as a result of Chris’s neglect. Christina
was at work at the time. Following this incident, Family Based Safety Services became
involved with the family and all three children were placed with Kimberly, who is
Chris’s mother and the paternal grandmother of L.J.S. and C.S.S.
In April 2008, the Department of Family and Protective Services filed suit seeking
permanent conservatorship with either a relative or the Department and alternatively
seeking termination of the parental rights of Christina and Chris and of Don, the father
of D.L.S. Chris voluntarily relinquished his parental rights to L.J.S. and C.S.S. Post-
trial, Don voluntarily relinquished his parental rights to D.L.S.
In September 2009, the trial court approved a mediated settlement agreement
and signed an order in which the Department and Kimberly were appointed as the
nonparent joint managing conservators of the children. That agreement gave Christina
certain visitation rights and imposed certain requirements on her. In January 2010,
Kimberly filed a petition to modify that sought to prevent Christina’s visitation, and a
few months later filed a motion pertaining to Christina’s alleged violations of the
agreement.
In April 2010, the Department filed an amended petition that sought termination
of Christina’s parental rights. In a jury trial held in November 2010, the jury made
findings against Christina under Family Code subsections 161.001(1)(D) (knowingly
placed or knowingly allowed the children to remain in conditions or surroundings that
endangered their physical or emotional well-being); 161.001(1)(E) (engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered their physical or emotional well-being); 161.001(1)(F) (failed to support the
children in accordance with her ability during a period of one year ending within six
months of the date of the petition’s filing); and 161.001(1)(P) (used a controlled
substance in a manner that endangered the health or safety and failed to complete a
court-ordered substance abuse treatment program or, after completion of such program,
continued to abuse a controlled substance). The jury also found that termination is in
In the Interest of D.L.S. Page 2
the children’s best interest. The trial court entered a termination order based on those
findings.
Sufficiency of the Evidence
In a proceeding to terminate the parent-child relationship brought under section
161.001, the Department must establish by clear and convincing evidence two elements:
(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,
termed a predicate violation; and (2) that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001 (Vernon Supp. 2006); Swate v. Swate, 72 S.W.3d 763, 766
(Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements are
established by clear and convincing evidence, and proof of one element does not relieve
the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under section
161.001(1) were found in the trial court, we will affirm based on any one ground
because only one predicate violation under section 161.001(1) is necessary to a
termination judgment. In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.); In
re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied).
Christina asserts that the evidence is legally and factually insufficient to support
the jury’s findings as to each child under subsections 161.001(1)(E) (issues 1-2, 9-10, and
17-18), 161.001(1)(F) (issues 3-4, 11-12, and 19-20), and 161.001(1)(P) (issues 5-6, 13-14,
and 21-22) and to support the best-interest findings as to each child (issues 7-8, 15-16,
and 23-24). Notably, she does not challenge the sufficiency of the evidence to support
the jury’s findings as to each child under subsection 161.001(1)(D), candidly stating in
In the Interest of D.L.S. Page 3
her brief: “The record in this case reflects evidence of the children’s living conditions as
an environment that was a source of endangerment to the children’s physical or
emotional well-being.” In response, the Department asserts that because Christina has
not challenged all four predicate grounds for termination, the unchallenged findings
under subsection 161.001(1)(D) are binding and support the judgment. See In re V.M.O.,
No. 07-09-00187-CV, 2009 WL 4893636, at *2 (Tex. App.—Amarillo Dec. 18, 2009, no
pet.) (mem. op.); see also In re M.F., No. 13-10-00248-CV, 2010 WL 4901407, at *3 (Tex.
App.—Corpus Christi Dec. 2, 2010, no pet.) (mem. op.); S.N., 272 S.W.3d at 49. The
Department is correct, and the jury’s unchallenged findings under subsection
161.001(1)(D) support the termination order. Accordingly, we need not address issues
1-6, 9-14, and 17-22 and will proceed to review the sufficiency of the evidence on the
best-interest findings.
In issues 7-8, 15-16, and 23-24, Christina asserts that the evidence is legally and
factually insufficient to support the jury’s findings that termination is in the best interest
of each child.1 In determining the best interest of a child, a number of factors have been
considered, including (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)
1 The standards of review for legal and factual sufficiency in termination cases are well-established. In re
J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual
sufficiency). Due process requires the petitioner to justify termination of parental rights by “clear and
convincing evidence.” Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco
1998, no pet.). This standard is defined as “that measure or degree of proof which 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.” Id.
In the Interest of D.L.S. Page 4
the programs available to assist these individuals; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not
exhaustive, but simply indicates factors that have been or could be pertinent. Id.
The Holley factors focus on the best interest of the child, not the best interest of
the parent. Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.—Dallas
1995, no writ). The goal of establishing a stable permanent home for a child is a
compelling state interest. Id. at 87.
Desires of the child: The jury heard testimony that the children do not want to go
with Christina, and D.L.S., the oldest child, expressed feelings of hostility toward her
and said that he wanted to be adopted by Kimberly. See Adams v. Tex. Dep’t Fam. &
Prot. Serv’s., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.). After
C.S.S.’s near-drowning incident in May 2007, the children had limited contact with
Christina. At the time of trial, the children had not seen Christina in a year. They have
a strong bond with Kimberly, whom they had lived with since May 2007. The evidence
on this factor weighs in favor of the jury’s best-interest findings.
The child’s emotional and physical needs now and in the future and the emotional and
physical danger to the child: Evidence of past misconduct or neglect can be used to
measure a parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex.
App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431-35 (Tex. App.—Waco
1992, no writ) (“Past is often prologue.”); see also In re V.A., No. 13-06-00237-CV, 2007
In the Interest of D.L.S. Page 5
WL 293023, at *5-6 (Tex. App.—Corpus Christi 2007, no pet.) (mem. op.) (considering
parent’s past history of unstable housing, unstable employment, unstable relationships,
and drug usage). Often, the best interest of the child is infused with the statutory
offensive behavior. In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.—Fort Worth 2003, no
pet.). Parental knowledge of the occurrence of an actual offense that endangers a child’s
emotional or physical well-being is not necessary; it is sufficient that the parent was
aware of the potential for danger and disregarded the risk. In re R.G., 61 S.W.3d 661,
667-68 (Tex. App.—Waco 2001, no pet.), disapproved of on other grounds by In re J.F.C., 96
S.W.3d 256 (Tex. 2002).
The need for permanence is a paramount consideration for a child’s present and
future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas
1987, writ ref’d n.r.e.) (en banc). The goal of establishing a stable permanent home for a
child is a compelling state interest. Dupree, 907 S.W.2d at 87.
The parties point to the following evidence on these two factors:
While Christina said that she was unaware that Chris was under the influence of
drugs when C.S.S. nearly drowned, the jury could have disbelieved her because
she knew of his propensity to use drugs while he was caring for the children.
Since 2005, Christina had moved eight times and had at least five roommates and
six jobs. She had been threatened with termination in her current job, and she
had been terminated from her most recent job.
Christina admitted to an extensive history of drug use, including drug use and
smoking during her pregnancies. She said that she used methamphetamine
during a pregnancy but that she did not know she was pregnant when she used.
L.J.S. was born premature, and her twin died soon after being born. L.J.S.
suffered from seizures, and Christina was told that Chris was taking L.J.S.’s anti-
seizure medication. There was testimony that D.L.S.’s urine was kept in the
refrigerator to use for drug testing. Christina and Chris had drugs and drug
In the Interest of D.L.S. Page 6
paraphernalia in the home and smoked marijuana around the children, and there
was testimony that the children appeared to have a “contact high” from second-
hand marijuana smoke. After the children were placed with Kimberly,
Christina’s drug use continued; she admitted to cocaine use, tested positive for
an unprescribed tranquilizer (Xanax), and tested positive for cocaine and had a
diluted urine sample. Christina associated with persons with criminal records
after agreeing not to do so.
There was evidence of domestic violence between Christina and Chris, including
a fight where a door was slammed into D.L.S.’s head by Chris.
Christina did not meet her child-support obligations while the children lived
with Kimberly, despite receiving L.J.S.’s disability checks for some time and
receiving Don’s child-support checks meant for D.L.S.
The children had significant developmental problems while in Christina’s care,
and she frequently missed speech therapy appointments for L.J.S. and C.S.S.
There was testimony that D.L.S. experienced emotional problems after having
had contact with Christina. A psychologist testified that Christina had shown
improvement in therapy over time.
The evidence on these factors weighs in favor of the best-interest findings.
Parental abilities and available programs: Evidence of a parent’s drug addiction and
home and job instability can show a lack of parental abilities. Doe v. Brazoria Cty. Child
Prot. Serv’s., 226 S.W.3d 563, 574 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In
addition to the above evidence, there was testimony that Christina did not bathe the
children regularly or change the infant’s diapers and that on one occasion, D.L.S., when
he was three, was found outside on a cold night, barefoot and dressed only in
underwear. Further, Christina was diagnosed with an anti-social personality disorder,
and such a disorder leads a person to tend to put herself before her children. There was
ample evidence that the children were thriving under Kimberly’s care. The evidence on
this factor weighs heavily in favor of the jury’s best-interest findings.
In the Interest of D.L.S. Page 7
Plans for child and stability of the home: The Department’s plan was for the children
to remain with Kimberly and for her to adopt them. The children have a routine in her
home and always have someone at home. Kimberly has continued with the children’s
therapies, and they are all involved in extracurricular activities. Kimberly wants to
adopt the children, and although she is not D.L.S.’s biological grandmother, Don
(D.L.S.’s father, who later relinquished his parental rights) said that it was best for
Kimberly to adopt D.L.S. Several professionals and Department personnel testified that
it was in the best interest of the children to have Christina’s parental rights terminated
and for them to stay with Kimberly. Others said that it would not be in their best
interest to be “in limbo” or where there was instability. D.L.S.’s therapist thought that,
based on how things were when she last saw him, Christina should not be brought back
into his life.
Christina’s plan was for the children to remain in Kimberly’s care and for
Kimberly and the Department to continue as joint managing conservators while
Christina attempted to gain stability in her own life by going to technical school and
buying a home. There was testimony from a psychologist that Christina had shown
improvement in therapy over time. However, in considering the best interest of a child,
evidence of a parent’s recent turnaround does not totally offset evidence of a pattern of
instability and harmful behavior. Smith v. Tex. Dep’t Prot. & Reg. Serv’s., 160 S.W.3d 673,
681 (Tex. App.—Austin 2005, no pet.).
The evidence on these factors weighs in favor of the best-interest findings.
In the Interest of D.L.S. Page 8
Acts or omissions and any excuses for them: The Department points to Christina’s
drug use, neglectful supervision, overall instability, and relationships with others who
use drugs and break the law. Christina asserted that several of her job changes were to
make more money and that she was not aware that some of her friends had criminal
records. She said one of the reasons she did not pay child support was because it was
not withdrawn from her paycheck, as she thought would happen automatically.
The evidence on these factors weighs in favor of the best-interest findings.
In conclusion, on the jury’s findings that termination of Christina’s parent-child
relationships with her three children would be in their best interests, considering all the
evidence in relation to the Holley factors in the light most favorable to the trial court’s
findings, we hold that a reasonable trier of fact could have formed a firm belief or
conviction that termination was in the children’s best interests. J.F.C., 96 S.W.3d at 266.
We overrule Christina’s no-evidence complaints in issues 7, 15, and 23. And viewing all
the evidence in a neutral light in relation to the Holley factors, we hold that the jury
could have reasonably formed a firm belief or conviction that termination of Christina’s
parent-child relationships with her three children was in their best interests.
Accordingly, the evidence is factually sufficient on the best-interest findings, and we
overrule issues 8, 16, and 24.
Evidentiary Issues
In issue 25, Christina complains that the trial court erroneously admitted the
CASA guardian ad litem’s written report over her hearsay objection. In issue 26, she
complains that the trial court erroneously admitted a psychologist’s three reports on the
In the Interest of D.L.S. Page 9
children. We assume without deciding that the trial court erred in admitting these
reports and will proceed to a harm analysis and determine if the error warrants reversal
or was harmless.
To warrant reversal, we must conclude that the error probably caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); Bay Area Healthcare
Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). “We review the entire record
and require the complaining party to demonstrate that the judgment turns on the
particular evidence admitted.” McShane, 239 S.W.3d at 234. To obtain reversal, no
other similar evidence must have been admitted. Reliance Steel & Aluminum Co. v.
Sevcik, 267 S.W.3d 867, 873-74 (Tex. 2008). If wrongly admitted evidence is merely
cumulative of other evidence that was properly admitted, the error is harmless. See In
re C.R., 263 S.W.3d 368, 370-71 (Tex. App.—Dallas 2008, no pet.); see also In re D.P., No.
10-09-00271-CV, 2010 WL 654525, at *2 (Tex. App.—Waco Feb. 24, 2010, no pet.) (mem.
op.).
Susan Burt, the guardian ad litem and author of the report, testified at trial.
Christina identifies three specific hearsay statements within Burt’s report. For each of
these three statements, nearly identical evidence was admitted without objection
through testimony. Furthermore, the rest of the evidence in this case was “so one-
sided” that any error in the report’s admission “likely made no difference.” Sevcik, 267
S.W.3d at 873 (citing Tex. Dep’t Human Serv’s. v. White, 817 S.W.2d 62, 63 (Tex. 1991)).
Accordingly, any error in the admission of all or part of Burt’s report is harmless and
did not probably cause the rendition of an improper judgment. Issue 25 is overruled.
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Dr. Lee Carter, the psychologist who evaluated all three children and wrote a
report on each, testified at trial. Christina emphasizes that the report on D.L.S. contains
seven negative statements made by D.L.S. about Christina to Dr. Carter, who repeated
five of them without objection while testifying. Others testified without objection to
similar statements by D.L.S. Accordingly, any error in the admission of all or part of
Dr. Carter’s three reports is harmless and did not probably cause the rendition of an
improper judgment. Issue 26 is overruled for the same reasons as issue 25.
We affirm the trial court’s order of termination.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 22, 2011
[CV06]
In the Interest of D.L.S. Page 11