in the Interest of K.A. and K.N.A.,Children ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00019-CV
IN THE INTEREST OF K.A.A. and K.N.A., Children
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-PA-02516
Honorable Richard Garcia, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: July 9, 2013
AFFIRMED
Appellant Humberto A. appeals the trial court’s order terminating his parental rights to his
daughters K.A.A. and K.N.A. Humberto complains that the trial court erred in terminating his
parental rights to K.A.A. and K.N.A. because the evidence is not legally or factually sufficient to
support (1) the trial court’s finding that Humberto failed to comply with his family service plan or
(2) its finding that termination of his parental rights to K.A.A. and K.N.A. is in the best interest of
the children. We affirm the trial court’s order.
BACKGROUND
Humberto has three children: a teenage son H.X.A. and two younger daughters K.A.A. and
K.N.A. (the girls). The children lived with Humberto. Jennifer, the children’s mother, was living
in a home with her parents. In an outcry, K.A.A. accused her maternal grandfather of sexually
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abusing her. When Humberto went out of town for work, he left the girls in another’s care.
Humberto testified he left the girls with his mother. Jennifer and the girls told a Department of
Family and Protective Services caseworker that Humberto dropped the girls off at Jennifer’s home.
When the Department learned that the girls had been living for about three weeks in the same home
as the man whom K.A.A. accused of sexually abusing her, it removed the girls from Jennifer’s
home. It petitioned to terminate Humberto’s parental rights and established conditions in a family
service plan for Humberto to regain conservatorship of the girls. 1 Initially, the Department placed
the girls with a maternal aunt, but K.A.A. did not adjust well. K.A.A. asked to live with her
paternal aunt, Michelle. After a second placement with a different aunt and uncle became
untenable, the Department placed the girls with Michelle.
After a bench trial, the court found that Humberto failed to comply with his family service
plan as ordered and found that termination of Humberto’s parental rights to the girls was in their
best interest. The court terminated Jennifer’s rights to H.X.A., K.A.A., and K.N.A.; it awarded
sole managing conservatorship of H.X.A. to Humberto; and it terminated Humberto’s parental
rights to the girls. Jennifer did not appeal the order; Humberto appeals the portion of the order
that terminates his parental rights to the girls.
STANDARDS OF REVIEW
An order terminating parental rights requires clear and convincing evidence that (1) the
parent has committed one of the grounds for involuntary termination in section 161.001(1) of the
Family Code, and (2) the termination is in the best interest of the child. See TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2012); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).
1
The petition also sought to terminate Jennifer’s parental rights, and the service plan likewise addressed Jennifer.
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In a case with a clear and convincing evidence standard, we review a legal sufficiency
challenge by “look[ing] at 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 [the trial
court’s] finding was true.” In re J.F.C., 96 S.W.3d at 266; accord In re T.N.S., 230 S.W.3d 434,
438 (Tex. App.—San Antonio 2007, no pet.). We will conclude that the evidence is legally
sufficient if a “reasonable fact[-]finder could form a firm belief or conviction that the matter that
must be proven is true.” Cf. In re J.F.C., 96 S.W.3d at 266.
Evidence is factually sufficient under a clear and convincing standard if “a fact[-]finder
could reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San
Antonio 2004, no pet.). In our review, we must “consider whether disputed evidence is such that
a reasonable fact[-]finder could not have resolved that disputed evidence in favor of its finding.”
In re J.F.C., 96 S.W.3d at 266; In re T.N.S., 230 S.W.3d at 438.
STATUTORY GROUND FOR TERMINATION
In his first issue, Humberto asserts that the evidence is legally and factually insufficient to
support the trial court’s finding that he “failed to comply with the provisions of a court order that
specifically established the actions necessary for [him] to obtain the return of the [girls].” See
TEX. FAM. CODE ANN. § 161.001(1)(O). He also alleges that there is “no indication on the Status
Hearing Order and Pretrial Scheduling Order . . . that Appellant had reviewed and understood his
Family Service Plan.” He contends that his signature does not appear on his family service plan,
and there is no evidence that he reviewed and understood his service plan. See id. § 263.202(b).
He insists that because the trial court failed to admonish him and make the required findings, we
should reverse the trial court’s order.
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A. Texas Family Code
The Family Code requires the trial court to “review the service plan that the department or
other agency filed . . . and make findings as to whether . . . the child’s parents have reviewed and
understand the plan . . . and the child’s parents and the representative of the department or other
agency have signed the plan.” Id. However, to preserve a complaint for appellate review, “a party
must present to the trial court a timely request, motion, or objection, state the specific grounds
therefor, and obtain a ruling.” In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (citing TEX. R. CIV.
P. 33.1); accord In re Baby Boy R., 191 S.W.3d 916, 921–22 (Tex. App.—Dallas 2006, pet.
denied).
B. Understanding Plan Requirements
Humberto contends that the trial court did not properly admonish him regarding his duties
under the family service plan, and there is no evidence that he signed the plan. However, Humberto
failed to make such a complaint to the trial court, and he cannot raise it for the first time on appeal.
See TEX. R. CIV. P. 33.1; In re L.M.I., 119 S.W.3d at 711; In re Baby Boy R., 191 S.W.3d at 921–
22.
Assuming arguendo that Humberto preserved his claim of error, or that he could raise it
for the first time on appeal, his complaint still fails. The trial court held a full adversary hearing
at which Humberto personally appeared. In its temporary order from the hearing, the trial court
found that it notified Humberto that he was required to comply with the order to obtain the girls’
return. At a subsequent permanency hearing, Humberto appeared through counsel and was again
advised, inter alia, that he had failed to provide the girls with a safe environment as ordered. In a
permanency plan progress report submitted to the court on March 28, 2012, the caseworker stated
that she advised Humberto that he had to complete the family service plan tasks including attending
individual counseling, providing safe and stable housing for the girls, and obtaining stable
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employment. Further, at the termination trial, Humberto testified that he knew there were court
ordered requirements with which he had to comply. Humberto’s complaint that the trial court
failed to properly admonish him and make any required findings is of no avail.
C. Evidence on Statutory Ground
Humberto also contends that the evidence was not legally or factually sufficient to support
the ground for termination that he failed to comply with the order that established the conditions
for his girls to be returned to him. See TEX. FAM. CODE ANN. § 161.001(1)(O).
Humberto’s service plan required him, inter alia, to maintain safe and stable housing for
the girls, seek and obtain stable employment, and attend individual counseling. Humberto’s plan
for housing the girls if they were returned to him was to have his two daughters live with him and
H.X.A. in his cousin Lisa’s home. The girls would live in the same room as Lisa’s three daughters,
and all would live in the same home as H.X.A.—who had admitted to sexually abusing K.A.A.
The Department caseworker testified that Humberto’s plan did not provide safe and stable housing
because there was not enough room for the girls and they would not have the supervision or support
they needed.
As part of his plan to seek and obtain stable employment, Humberto had to register with
the Texas Workforce Commission (TWC), actively search for a job, and keep the caseworker
apprised of his income and employment status. At the hearing, Humberto admitted that he had
been unemployed for approximately five months, and the caseworker testified that she did not have
any record that Humberto had registered with TWC. The caseworker also testified that Humberto
began his individual counseling, but had not attended any counseling sessions in the months since
she had been assigned to the case.
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D. Conclusion
Viewing all the evidence in the light most favorable to the finding, we conclude that a
reasonable fact-finder could have found by clear and convincing evidence that Humberto failed to
provide safe and stable housing for the girls, failed to seek and obtain stable employment, and
failed to attend individual counseling as required. See In re J.F.C., 96 S.W.3d at 266; In re T.N.S.,
230 S.W.3d at 438. Considering the entire record, including the disputed evidence, we conclude
that a fact-finder could have reasonably formed a firm belief and conviction that Humberto failed
to comply with his service plan requirements. See In re J.F.C., 96 S.W.3d at 266; In re K.R.M.,
147 S.W.3d at 630. Therefore, the evidence is legally and factually sufficient to support the trial
court’s finding that Humberto committed one of the statutory grounds for involuntary termination
under section 161.001(1). See TEX. FAM. CODE ANN. § 161.001(1)(O); In re J.F.C., 96 S.W.3d at
266.
BEST INTEREST OF THE GIRLS
Humberto also challenges the legal and factual sufficiency of the evidence to support the
trial court’s finding that terminating his parental rights was in the girls’ best interest.
A. Best Interest of the Child Factors
In determining whether termination of parental rights is in the best interest of a child, courts
should consider several factors including the following:
(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;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including
providing the child and other children under the family’s care with:
...
(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;
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(D) a safe physical home environment;
...
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family
and friends is available to the child.
TEX. FAM. CODE ANN. § 263.307 (West 2008); see In re J.L., 163 S.W.3d 79, 87 (Tex. 2005); In
re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—San Antonio 2003, no pet.); see also TEX. FAM. CODE
ANN. § 161.001(2) (West Supp. 2012).
B. Analysis
At the termination trial, Humberto admitted that he had been unemployed for
approximately five months and had not obtained stable employment. He said he had been visiting
the girls regularly, but stopped visiting them for personal reasons including transportation
problems.
The Department caseworker testified that Humberto’s service plan required him to attend
individual counseling: Humberto had started counseling, but he had not attended any counseling
sessions in the months since she had handled the case. She testified that Humberto’s plan to care
for the girls would not place them in a safe home—in part because her admitted abuser would be
living in the same home with her—and would not provide adequate supervision. She added that
Humberto had the opportunity to apply for public housing, but did not. The caseworker also
testified that K.A.A. had exhibited cutting behaviors—cutting her left arm with a razor blade—
and was being treated for depression and post-traumatic stress disorder stemming from her
grandfather sexually abusing her. She noted that K.A.A. was doing fairly well in her placement
with Michelle and her husband, but K.A.A. had threatened to run away if she was moved into
foster care.
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Michelle testified that she wants to adopt the girls, she understands K.A.A.’s need for
psychiatric care, but that Humberto denies K.A.A. has a problem and insists his daughter is merely
“acting stupid.”
The evidence demonstrates that the parent-child relationship between Humberto and the
girls is improper. See In re J.L., 163 S.W.3d at 87; In re H.R., 87 S.W.3d 691, 700 (Tex. App.—
San Antonio 2002, no pet.). It also shows that Humberto failed to complete his counseling
sessions, failed to provide a safe home environment for the girls to live, failed to obtain and
maintain stable employment, and failed to demonstrate adequate parenting skills including
understanding K.A.A.’s mental health needs and providing her with appropriate care and
nurturance. See TEX. FAM. CODE ANN. § 263.307 (West 2008); In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam).
Considering the evidence under the legal and factual sufficiency standards of review, we
conclude that the trial court could have formed a firm belief or conviction that terminating
Humberto’s parental rights to the girls was in their best interest. See In re J.F.C., 96 S.W.3d at
266; In re T.N.S., 230 S.W.3d at 438.
CONCLUSION
The evidence was legally and factually sufficient to support the trial court’s finding of a
statutory ground for termination and its finding that terminating Humberto’s parental rights to the
girls was in their best interest. Accordingly, we affirm the trial court’s order.
Patricia O. Alvarez, Justice
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