L. v. v. Texas Department of Family and Protective Services , 389 S.W.3d 525 ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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L.V., No. 08-12-00252-CV
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Appellant, Appeal from
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v. 143rd District Court
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TEXAS DEPARTMENT OF FAMILY of Ward County, Texas
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AND PROTECTIVE SERVICES,
' (TC # 11-07-22,655-CVW)
Appellee.
OPINION
L.V. is appealing from a judgment which terminated the parental rights of his daughter to
her biological child, C.H., Jr. (C.H.) and placed the child in the home of the child’s maternal
grandmother.1 We affirm.
FACTUAL SUMMARY
C.H. was born two months premature on February 10, 2011 and was not released from
the hospital until late April 2011. Over the course of the next three months, the child and his
parents, C.H. and C.H., Sr. (hereinafter referred to as Mother and Father) lived with the couple’s
parents at various times. On July 21, 2011, Father was changing the baby’s diaper when he
heard one of the baby’s legs “pop.” He explained that the leg simply popped when he was
holding the child by the ankles with one hand and lifting him while he changed the diaper.
Mother, Father, the paternal grandparents, and Father’s sister were present when the injury
1
Appeals from a judgment terminating parental rights are accelerated. See TEX.R.APP.P. 28.4. The Texas
Supreme Court has determined that an appellate court should dispose of these appeals within 180 days after the
notice of appeal is filed. TEX.R.JUD’L ADMIN. 6.2(a). The Court appreciates the efforts of counsel for Appellant
and the Texas Department of Family and Protective Services in filing their respective briefs in a timely manner in
this super-accelerated format.
occurred. They took C.H. to Ward Memorial Hospital and it was determined that he had a spiral
break of his left femur. X-rays showed that the child had three partially-healed broken ribs and
he had also suffered a spiral fracture of his other leg. Neither parent knew how these other bones
had been broken or who caused the injuries. C.H. was transferred from Ward Memorial Hospital
to Covenant Medical Center in Lubbock. According to Dr. Patterson at Covenant, all of the
injuries appeared to be non-accidental. The Department initiated an investigation because the
parents’ explanation about the broken leg did not comport with the nature of the injury. On July
29, 2011, the Department filed a petition to terminate the parental rights of both Mother and
Father. The Department also requested that it be appointed managing conservator of the child.
The petition alleged that Mother and Father: (1) knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endanger the physical or emotional well-
being of the child; (2) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the child; (3)
executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment
or parental rights; (4) constructively abandoned the child; and (5) failed to comply with the
provisions of a court order that specifically established the actions necessary for her to obtain the
return of the child. The child’s maternal grandmother, C.A., and her husband, A.A., intervened
in the case and sought to be named joint managing conservators, or alternatively, possessory
conservators of the child. The child’s maternal grandfather, L.V., and his wife K.E., also
intervened and requested that they be named joint managing conservators.
Shelby Couch, the Department’s caseworker assigned to this case, testified that when the
child was brought into the hospital he was dirty as were his parents. During the course of the
Department’s investigation, Couch learned that Mother had no prenatal care despite a family
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history of premature births. Further, Mother and Father did not take C.H. to the doctor for his
vaccinations due when he was four months of age. Additionally, C.H. had missed five of his
weekly physical therapy appointments. At the conclusion of the investigation, the Department
was unable to determine whether Mother had committed the physical abuse or neglect, but it
found that there was reason to believe Father had committed physical abuse and neglect of the
child. The Department cleared the maternal grandmother, C.A., of any wrongdoing. After
making these determinations, the Department offered services to the parents and Mother agreed
to schedule the child’s missed appointments with his doctors and notify the case worker when
she had taken care of that task. Mother did not comply. In August 2011, the child was removed
from the home and the Department was appointed temporary managing conservator of C.H. A
service plan was created for each parent setting forth the steps necessary to achieve reunification
with the child. Both parents were required to undergo a psychosocial evaluation, counseling, and
parenting classes. Both parents completed the required parenting classes and a psychosocial
evaluation but they did not complete MHMR testing. Mother attended two of the required
counseling sessions and Father attended one session. Both parents testified that that the
counselor told them that no additional sessions were required but the counselor reported to the
Department that the parents had failed to schedule the next appointment and never completed the
counseling.
While this case was pending, Mother gave birth to a daughter, L.H., who was born
prematurely. As a result of the pending case involving C.H., L.H. was removed from the care of
Mother and Father and placed with L.V. but a permanency hearing had not yet occurred.
Following a bench trial, the court found that the Department had established by clear and
convincing evidence the first, second, fourth, and fifth grounds alleged against Mother and
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Father, and that termination of their parental rights was in the child’s best interest. The court
also found that appointment of either C.A. or L.V. as permanent managing conservator is not in
the child’s best interest. The trial court appointed the Department as the permanent managing
conservator of C.H. and placed him with his maternal grandmother, C.A. The court further
ordered that the maternal grandfather, L.V., could have visitation by agreement. Mother, Father,
and L.V. each filed notice of appeal.2
SECTION 162.302(E)
In his first issue, L.V. argues that the trial court misapplied the law by failing to keep the
two siblings, C.H. and L.H., together when making the placement determination. L.V. relies on
Section 162.302(e) of the Texas Family Code3 and 40 TEX.ADMIN.CODE § 700.1309 to
support his argument that public policy requires that siblings be placed together.4 Section
162.302(e) provides that:
It is the intent of the legislature that the department in providing adoption
services, when it is in the children’s best interest, keep siblings together and
whenever possible place siblings in the same adoptive home.
2
In an opinion and judgment issued on the same date as the opinion and judgment issued in this case, we affirmed
the trial court’s judgment terminating Mother’s parental rights. See C.H. v. Texas Department of Family and
Protective Services, No. 08-12-00250-CV (Tex.App.--El Paso Oct. 17, 2012). Likewise, in a separate opinion and
judgment, we affirmed the trial court’s judgment terminating Father’s parental rights. See C.H. v. Texas Department
of Family and Protective Services, No. 08-12-00251-CV (Tex.App.--El Paso Oct. 17, 2012).
3
TEX.FAM.CODE ANN. § 162.302(e)(West 2008).
4
L.V. relies only upon the statutes that we have addressed. We do recognize that there is long standing authority
that favors keeping siblings together in the same household absent clear and compelling reasons for separation. See,
e.g., Coleman v. Coleman, 109 S.W.3d 108, 112 (Tex.App.--Austin 2003, no pet.); O. v. P., 560 S.W.2d 122, 127
(Tex.Civ.App.--Fort Worth 1977, no writ); Autry v. Autry, 350 S.W.2d 233, 236 (Tex.Civ.App.--El Paso 1961, no
writ); see also TEX.FAM.CODE ANN. § 153.251(c)(West 2008)(“It is preferable for all children in a family to be
together during periods of possession.”). The separation of children is only one of many factors to consider in
determining the best interests of the children. Coleman, 109 S.W.3d at 113; Ditraglia v. Romano, 33 S.W.3d 886,
890 (Tex.App.--Austin 2000, no pet.). Other factors include “[t]he age of the children, the location of the parents,
the present and future emotional and physical needs of the children, the stability of each parent's home, and the
present and future emotional and physical danger to the children.” Coleman, 109 S.W.3d at 113. Our resolution of
this issue would not change if L.V. had raised the common law arguments.
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Section 162.302 is found in a Subchapter of the Family Code addressing adoption services by the
Department of Protective and Regulatory Services and pertains to an adoption assistance
program. See TEX.FAM.CODE ANN. § 162.302. As acknowledged by L.V., the statute is
applicable when both siblings are being placed for adoption. See In the Interest of D.R.L.M., 84
S.W.3d 281, 304 (Tex.App.--Fort Worth 2002, pet. denied). Placement of L.H. was not at issue
in this case. At the time of trial, L.H. had not been permanently placed with L.V. and there is no
evidence in the record that permanent placement or adoption has since occurred. Even assuming
that Section 162.302(e) is applicable here, the legislative intent set forth in the statute expressly
yields to the best interest requirement. See TEX. FAM.CODE ANN. § 162.302(e); In re
D.R.L.M., 84 S.W.3d at 304-07.
L.V. also relies on the Texas Administrative Code in making his argument that the court
failed to consider the public policy requiring that siblings be kept together. See 40
TEX.ADMIN.CODE § 700.1309. Section 700.1309 provides as follows:
§ 700.1309. What factors does DFPS consider when selecting the most
appropriate living arrangement for a child?
As mandated by § 475 of Title IV-E of the Social Security Act, DFPS must place
a child in the least restrictive (most family-like) and most appropriate setting
available, and in close proximity to the parents’ home when the child's
permanency goal is reunification, consistent with the best interest and special
needs of the child. When determining whether a placement is consistent with the
best interest and special needs of a child, DFPS considers the following factors:
(1) First and foremost, a child’s placement must be safe;
(2) Placement with a relative or other person with whom the child has a long-
standing and significant relationship is generally preferred over placement with a
non-related caregiver, provided the relative or other person can provide a safe and
appropriate home;
(3) Siblings removed from their home should be placed together unless such
placement would be contrary to the safety or well-being of any of the siblings;
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(4) Consideration must be given to the appropriateness of the child’s current
educational setting and the proximity of the placement to the school in which the
child is enrolled at the time of placement;
(5) The placement must be able to meet the physical and emotional needs of the
child, including any special needs that the child may have, taking into
consideration any available support services that might assist the placement in
meeting the child’s needs; and
(6) Consideration must be given to the child’s desires and needs for a loving and
permanent home.
This section of TAC, like Section 162.302 of the Family Code, makes the child’s safety and best
interests of the child the paramount concern when determining placement. Accordingly, we find
that these provisions did not require the trial court to place C.H. with his sibling. Issue One is
overruled.
CONSERVATORSHIP
In Issue Two, L.V. contends that the trial court abused its discretion by appointing the
Department as the sole managing conservator of C.H. and by placing the child with C.A. He
challenges the legal and factual sufficiency supporting the determination of conservatorship.
Standards of Review and Applicable Law
Under Section 153.002, the primary consideration in determining issues of
conservatorship and possession of and access to the child is always the child’s best interest.
TEX.FAM.CODE ANN. § 153.002 (West 2008); In the Interest of J.A.J., 243 S.W.3d 611, 614
(Tex. 2007). If the court terminates the parent-child relationship with respect to both parents or
to the only living parent, the court is required to appoint a suitable, competent adult, the
Department of Protective and Regulatory Services, a licensed child-placing agency, or an
authorized agency as managing conservator of the child. TEX.FAM.CODE ANN. §
161.207(a)(West 2008).
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The trial court’s appointment of a managing conservator under Section 161.207 is based
on a preponderance of the evidence. See TEX.FAM.CODE ANN. § 105.005 (West
2008)(“Except as otherwise provided by this title, the court’s findings shall be based on a
preponderance of the evidence.”). The trial court has wide latitude in determining the best
interests of a minor child. In the Interest of W.M., 172 S.W.3d 718, 724 (Tex.App.--Fort Worth
2005, no pet). We review the trial court’s decision for an abuse of discretion and will not reverse
unless the decision is arbitrary and unreasonable. See In re J.A.J., 243 S.W.3d at 616. In
conducting our review of the court’s decision, we engage in a two-pronged inquiry: (1) Did the
trial court have sufficient information upon which to exercise its discretion, and (2) did the trial
court err in its application of discretion? In re J.A.H., 311 S.W.3d 536, 540 (Tex.App.--El Paso
2009, no pet.). The traditional sufficiency standards are employed in answering the first
question. Id. Once we have determined whether sufficient evidence exists, we must then decide
whether the trial court made a reasonable decision. Id. In other words, we must conclude that
the ruling was neither arbitrary nor unreasonable. Id.
In considering a legal sufficiency or “no evidence” point, we consider the evidence in the
light most favorable to the verdict and indulge every reasonable inference that would support it.
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). Even if evidence is undisputed, it is
the province of the trier of fact to draw from it whatever inferences it wishes so long as more
than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither
the trier of fact nor the reviewing court may disregard it. Id. We are also mindful that the trier
of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony.
Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve
such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve
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conflicting evidence either way, the reviewing court must presume it did so in favor of the
prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If
the evidence at trial would enable reasonable and fair-minded people to differ in their
conclusions, then the trier of fact must be allowed to do so. Id. at 822. So long as the evidence
falls within this zone of reasonable disagreement, we may not substitute our judgment for that of
the trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.
A factual sufficiency point requires examination of all of the evidence in determining
whether the finding in question is so against the great weight and preponderance of the evidence
as to be manifestly unjust. In re J.A.H., 311 S.W.3d at 541, citing In re King’s Estate, 150 Tex.
662, 244 S.W.2d 660 (1951). The reviewing court cannot substitute its conclusions for those of
the jury. In re J.A.H., 311 S.W.3d at 541. If there is sufficient competent evidence of probative
force to support the finding, it must be sustained. Id.
The Supreme Court has set forth a list of non-exclusive factors which can be used to
determine a child’s best interests. In the Interest of S.M., --- S.W.3d ----, 2012 WL 4381372 at
*8 (Tex.App.--El Paso 2012, no pet. h.), citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). The determination of a child’s best interest does not require proof of any unique set of
factors, and it does not limit proof to any specific factors. Id. Under Holley, in reviewing the
sufficiency of the evidence to support a best-interest finding, courts may consider (1) the desires
of the child, (2) the present and future physical and emotional needs of the child, (3) the present
and future emotional and physical danger to the child, (4) the parental abilities of the persons
seeking custody in promoting the best interest of the child, (5) the programs available to assist
these individuals to promote the best interest of the child, (6) the plans for the child by the
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individuals or agency seeking custody, (7) the stability of the home or proposed placement, (8)
acts or omissions of the parent which may indicate the existing parent-child relationship is not
appropriate, and (9) any excuse for the parent’s acts or omissions. In re S.M., --- S.W.3d ----,
2012 WL 4381372 at *8, citing Holley, 544 S.W.2d at 371-72.
1. The desires of the child. At the time of trial, C.H. was only eighteen months of age and there
is no evidence that he could articulate his desires.
2. The present and future physical and emotional needs of the child. C.H. has
hydroencephalitis and is a special needs child. As a result of his premature birth, he is
behind developmentally and is currently receiving physical therapy and speech therapy. He
will need physical therapy on an ongoing basis. He will also need additional medical care.
Simply put, C.H. has significant present and future physical needs.
3. The present and future emotional and physical danger to the child. Mother testified that
C.A.’s home was not safe for C.H. because the floors were uneven, the roof leaked, and the
yard had a lot of junk cars and metal. Mother claimed that C.A. and her husband did not feed
their pets and had starved two horses. C.A. had also been physically aggressive with her
thirteen-year-old son and he had hit her in the face. Mother had also seen C.A. and her
husband yell at each other and on one occasion C.A. threw a fax machine at him. Mother
admitted that she had initially requested that C.H. be placed with C.A. Mother also testified
that even though C.A. had formed a bond with C.H. she would not be allowed to visit the
child if he were placed with L.V.
4. The parental abilities of the persons seeking custody in promoting the best interest of the
child. C.A. has a bond with C.H. because the family lived with C.A. for a period of time and
she had maintained contact with C.H. after he was removed from his parents’ care. C.A. has
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participated in C.H.’s Early Child Intervention classes. C.A.’s husband has experience
caring for small children because he ran a day care in the past. L.V. had visited C.H. only a
few times since he had been born and L.V.’s wife had never met him. L.V.’s wife has a
Master’s degree in special education and there are two special needs children in L.V.’s home.
5. Available assistance programs. No evidence was presented regarding assistance programs
available to C.A. or L.V.
6. The plans for the child by the individuals or agency seeking custody. The Department
requested that it be named managing conservator of C.H. so that C.A. could arrange to adopt
him.
7. The stability of the home or proposed placement. There is evidence that C.A. is a Canadian
citizen. While L.V.’s attorney questioned C.A.’s husband, A.A., about her immigration
status and suggested that C.A. did not have a permanent green card, there is no evidence in
the record to support that assertion. In fact, the home study reflects that C.A. has resident
status. C.A. is not employed but A.A. is employed and their financial situation is stable.
They would not need any financial assistance to care for C.H. and he would be the only
special needs child in the home. C.A. and her husband have been married since February of
2002 and they have a stable relationship. At the time of trial, L.V. and his wife, K.E., had
only been married a few months. L.V. testified that his financial condition had improved
since the home study was completed and they could care for C.H. He also admitted,
however, that he was behind on his child support and had not made a payment “in some
time.”
8. Acts or omissions of the parent which may indicate the existing parent-child relationship is
not appropriate. The eighth factor is inapplicable in this appeal.
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9. Any excuse for the parent’s acts or omissions. The ninth factor is inapplicable in this appeal.
Having reviewed all of the evidence under the standard for legal sufficiency, we conclude
that a reasonable trier of fact could have found that appointment of the Department as managing
conservator and placement of the child with C.A. is in the best interest of the child. We find no
abuse of discretion in the appointment of the Department as the managing conservator of the
child or by placing C.H. with his maternal grandmother.
We have also reviewed all of the evidence under the factual sufficiency standard. The
trial court had before it conflicting evidence and diametrically opposed points of view regarding
the best interest of the child. The trial court’s finding on the best interest issue is not so against
the great weight and preponderance of the evidence as to be manifestly unjust. We conclude that
the trial court’s decision is not arbitrary or unreasonable. We overrule Issue Two and affirm the
judgment appointing the Department as managing conservator of the child.
October 17, 2012 _______________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
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