in the Interest of L.W. and F.W., Children ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00107-CV
IN THE INTEREST OF L.W. AND
F.W., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-106063-17
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MEMORANDUM OPINION1
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Appellant K.W. (Father) appeals from the trial court’s order terminating his
parental rights to his children, L.W. (Luke) and F.W. (Faith).2 In three issues, he
argues that the evidence was factually insufficient to support the trial court’s
findings that his conduct satisfied the two alleged endangerment grounds or that
1
See Tex. R. App. P. 47.4.
2
We refer to the children and their family members by fictitious names.
See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017); Tex. R. App. P.
9.8(a)–(b).
termination of his parental rights was in the children’s best interest. We
conclude, after deferentially viewing the entire record in favor of the trial court’s
findings, that the evidence allowed it to reasonably form a firm belief or conviction
that Father’s conduct or inaction rose to the level of endangerment and that the
children’s best interest would be served by terminating his parental rights. Thus,
we affirm the trial court’s order of termination.
I. BACKGROUND
In June 2007, Father and M.C. (Mother) had a son, Luke. In 2009, the
Department of Family and Protective Services (DFPS) received a report that
Father and Mother were subjecting Luke to neglectful supervision, which DFPS
determined there was reason to believe happened. As a result, Luke was
removed and placed with a relative. At some point, Luke was returned to Mother
and Father, and the trio moved to Florida. In 2010, Mother and Father had a
daughter, Faith. Shortly after Faith’s birth and after the family moved back to
Texas, DFPS received another neglectful-supervision report and a report of
medical neglect. DFPS found reason to believe both reports—at four months
old, Faith weighed eleven pounds. Both Luke and Faith were removed from the
home and placed in foster care, and DFPS filed a petition to terminate Father’s
and Mother’s parental rights.
On April 25, 2012, a trial court terminated Mother’s parental rights to Luke
and Faith based on Mother’s unrevoked or irrevocable affidavit of voluntary
relinquishment of her parental rights and on the court’s finding that termination
2
was in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K),
(b)(2) (West Supp. 2017). Regarding Father, the trial court found by clear and
convincing evidence that he endangered the children and failed to comply with
the service plan but that termination of his parental rights was not in the
children’s best interest. See id. § 161.001(b)(1)(D), (E), (O). At that time, the
trial court appointed DFPS as the children’s permanent managing conservator.
In 2014, the children were returned to Father. Shortly thereafter, Faith
made an “allegation about [Luke] sticking a corn dog up her butt.” DFPS
investigated but found no injuries to Faith; thus, DFPS “closed” the case. In May
and December 2015, DFPS investigated reports that the children frequently were
left home alone, that Luke was hitting Faith, and that the children were
“unkempt,” “dirty,” and covered in “bug bites and bruises (arms/legs/face).”
Although DFPS found reason to believe these reports, it closed the investigation
after Father and the children “fled” to Tennessee. While in Tennessee, there
were allegations that Father was physically abusing Luke. Additionally, Father
was admitted to a psychiatric hospital in Tennessee for his bipolar disorder, and
Faith and Luke stayed with an aunt. The children were removed from the aunt’s
care after there were allegations that her son was sexually abusing Luke.
In October 2016 after Father moved back to Texas with the children, Faith
told a teacher that “she had special time with dad that . . . [Luke] was not allowed
to be in the room with.” This allegation was “clear[ed] up” after Faith explained
“special time” was computer time with Father. Also in October, DFPS
3
investigated after Luke had “a facial injury” he said was caused by Father
“pick[ing] him up by his neck.” Father admitting grabbing Luke by the neck but
denied lifting him off the ground. DFPS noted that Father “was resistant to
utilizing community resources.” Two months later, DFPS received a report that
the children were frequently left home alone and neglected. The investigation
was closed because Father lost his job, eliminating the apparent cause of his
leaving the children alone, and because Father had signed a safety plan
representing that he would not leave the children alone. A similar report was
received in February 2017 with a similar disposition—case closed because
Father lost his job.
In October 2017, Faith’s teacher contacted DFPS because Faith was
frequently tired, dirty, hungry, and hurting when she arrived at school. Once
Faith came to school with a black eye. The teacher also saw Luke be physically
violent and “cruel” to Faith. Luke had behavioral problems at school,
necessitating his placement in a special-education class and leading to his
teacher rating him an eight out of ten for disruptiveness. Like Faith, Luke would
come to school hungry, dirty, and bruised. He would fall asleep at school every
day and sleep for between thirty minutes and an hour, disrupting his instructional
time.
Kamisha Knight, an investigator with DFPS, investigated Faith’s teacher’s
report of neglectful supervision and physical neglect. Knight was unable to reach
Father after repeatedly trying to call him at multiple, different phone numbers.
4
After talking to Faith, Knight found reason to believe that Father was leaving
Faith and Luke home alone and that Luke was hitting Faith. Charity Garcia, a
forensic interviewer with an advocacy center, conducted a forensic interview of
Faith on October 13, 2017. Faith told Garcia that Father put his penis “to her
butthole,” describing “penile penetration of her anus by [Father’s] penis” that
began when she was four years old and continued until she was six or seven
years old. Father told Faith to keep it a secret. Faith also drew a picture during
the interview, showing Faith in a bed saying, “No.” She wrote under the picture:
“[My dad] has sex wif me.”
Knight observed Garcia’s interview with Faith and took Faith to a hospital
for a sexual-assault exam. Faith made the same outcry statements to the nurse
during the exam.3 Knight immediately took Faith to a foster home. See id.
§ 262.104 (West Supp. 2017). On October 16, 2017, DFPS filed a petition
seeking the termination of Father’s parental rights. See id. § 161.002(b) (West
Supp. 2017). That same day, the trial court entered orders removing Faith and
Luke from Father’s custody and naming DFPS as their temporary sole managing
conservator. In November 2017, the trial court found that Father had subjected
the children to aggravated circumstances, warranting the waiver of a service plan
and of making reasonable efforts to return the children to Father. See id.
§ 262.2015(a) (West Supp. 2017). Specifically, the trial court found that (1) Faith
3
At the time of the termination trial, law enforcement was continuing to
investigate Faith’s sexual-abuse allegations.
5
or Luke was a victim of serious bodily injury or sexual abuse inflicted by Father
and (2) Father had engaged in conduct that constituted the offenses of indecency
with a child, sexual assault, aggravated sexual assault, abandoning or
endangering a child, and continuous sexual abuse of a child or children. See id.
§ 262.2015(b)(2), (b)(3)(D), (E), (G), (I), (M).
Luke was placed in several foster homes, two of which lasted only thirty-six
hours based on his behavior and resulted in his admissions to a psychiatric
hospital. In December 2017, Luke was placed with the Atkins family. Faith was
placed in a separate foster home from Luke and began seeing a counselor,
Bryant Guidry, in December 2017.4 Faith told Guidry about “extraordinary
neglect and physical abuse” that occurred while she was with Father, including
Father and Luke physically attacking her, Father choking her, going without food
for days, and being bitten by rats in her home. Luke later denied that Father
choked him or that he had been bitten by rats. Faith wanted to be reunited with
Luke but not with Father.
At the March 19, 2018 trial, Father testified that many of the problems that
were reported to DFPS and led to the removal of Faith and Luke were a direct
result of his dire financial straits. He did not have the money to wash the
children’s clothes, he could not afford his psychiatric medications, the hotel he
was living at did not have reliable phone service, 5 and he had no choice but to
4
One of Luke’s short-term placements was in the same home as Faith.
5
Father explained that this was why Knight was unable to reach him.
6
occasionally leave the children alone while he sporadically worked. But he
pointed out that he applied for the free-school-lunch program every year for the
children, was on welfare, and was on a long waiting list for government housing.
He denied the sexual- and physical-abuse allegations.
Luke’s foster mother Betty Atkins testified that Luke had lived with her
family since December 2017 and that she wanted to adopt Luke and Faith. Luke
told her that he wants to stay with the Atkins family “forever” and calls Betty and
her husband mom and dad. Luke began taking medication for his behavior,
which had improved, and had better sleep patterns. Betty believed she could
provide needed supervision for Luke and that it would be in both Luke’s and
Faith’s best interest to be reunited in her home.
The children’s DFPS caseworker Lauren Robinson testified that Faith’s
current foster placement was not interested in adoption but that she had
improved since she had been removed from Father. Although Robinson had
concerns about Faith being reunited with Luke, she would move Faith to an
adoption-motivated home if the Atkins home did not work. Robinson believed the
children’s best interest would be served through stability and permanency, which
Father could not provide, and that Father’s parental rights should be terminated.
The children’s attorney ad litem stated to the court that she agreed the
termination of Father’s parental rights would be in the children’s best interest.
DFPS summed up why it requested that Father’s parental rights be terminated:
Judge, this is not a case about [Father] being poor. This is a case
about [Father’s] poor judgment, extreme neglect, physical abuse of
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his children, and now in this case, sexual abuse of [Faith], and it’s
gone on these children’s entire lives. Back in 2010, 2014 case there
was a[n] [endangerment] finding against [Father]. In our case,
there’s an aggravated circumstance finding for the sexual abuse of
[Faith]. There ha[ve] been . . . over 17 different reports to [DFPS]
during these children’s lives. There’s been three out-of-home
placements for [Luke]. There’s been two out-of-home placements
for [Faith]. We’ve heard she’s spent half of her life in foster care.
The rest of her life she’s spent being investigated for neglect and for
physical abuse and medical neglect and now sexual abuse.
....
[DFPS] has a plan for these children going forward that would
be a permanent plan, placing the children together. They’re
receiving the therapies that they need, they’re receiving the
medication they need, they’re receiving the education opportunities
that they need and we would ask that the Court find that it’s in their
best interest that parental rights be terminated.
The trial court found by clear and convincing evidence that Father had
endangered the children when he (1) knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which endangered their physical
or emotional well-being (subsection (D)) and (2) engaged in conduct or knowingly
placed the children with persons who engaged in conduct which endangered
their physical or emotional well-being (subsection (E)). See id.
§ 161.001(b)(1)(D), (E). The trial court further found by clear and convincing
evidence that termination of Father’s parental rights was in the children’s best
interest and specifically found that the termination was not based on the fact that
Father was economically disadvantaged. See id. § 161.001(b)(2), (c)(2). The
trial court named DFPS as the children’s permanent managing conservator.
8
Father now appeals the order of termination and argues in three issues
that the evidence was factually insufficient to support the trial court’s
endangerment and best-interest findings.
II. SUFFICIENCY OF THE EVIDENCE
A. STANDARD AND SCOPE OF REVIEW
Although the parent-child relationship is to be protected, it may be
terminated upon a showing by clear and convincing evidence that the parent’s
actions satisfy a statutory ground justifying termination and that termination
would be in the child’s best interest. Id. §§ 161.001(b), 161.206 (West Supp.
2017); In re E.R., 385 S.W.3d 552, 554–55 (Tex. 2012). Evidence is clear and
convincing if it “produce[s] 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 (West 2014).
When the factual sufficiency of the evidence is challenged, we review the
entire record in the light most favorable to the finding, giving due deference to the
fact-finder’s findings, and may not supplant the judgment with our own. In re
A.B., 437 S.W.3d 498, 500 (Tex. 2014). Evidence is factually sufficient if a fact-
finder could reasonably form a firm conviction or belief that the parent violated a
conduct provision of section 161.001(b)(1) and that the termination of the parent-
child relationship would be in the children’s best interest. In re C.H., 89 S.W.3d
17, 28 (Tex. 2002).
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B. ENDANGERMENT GROUNDS
The trial court found that Father’s conduct endangered the children,
satisfying two conduct grounds supporting termination—subsections (D) and (E).
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). In his second and third
issues, Father argues that the evidence was factually insufficient to support
either endangerment ground. Although DFPS was required to prove only one
conduct ground listed in section 161.001(b)(1) to support the trial court’s
termination determination, we will address both grounds in tandem based on the
interrelated nature of the endangerment facts. See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth
2009, no pet.) (op. on reh’g).
Under subsection (D), we must examine evidence related to the
environment of the children to determine if the environment was the source of
endangerment to the children’s physical or emotional well-being. In re D.T.,
34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh’g). A
child is endangered when the environment creates a potential for danger that the
parent is aware of but disregards. In re S.M.L., 171 S.W.3d 472, 477 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). Under subsection (E), the inquiry is
whether evidence exists that the endangerment of the child’s physical or
emotional well-being was the direct result of the parent’s conduct, including acts,
omissions, and failures to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
10
Fort Worth 2003, no pet.). A single act or omission is insufficient; a voluntary,
deliberate, and conscious course of conduct by the parent is required. Id.
Although Father suffered from bipolar disorder, requiring treatment and
hospitalizations in the past and causing him to have suicidal thoughts, Father
admitted that he was not under a doctor’s care for the disorder and was unable to
take his required medication. Faith and Luke frequently went days without food
and occasionally the food at their home contained mouse droppings even though
Father received government assistance. Although Father stated that there had
only been one mouse in their hotel room, which he testified the children were
“fascinated” with, Faith reported that there were multiple mice in the trash cans
and that she was bitten by them. The children were routinely dirty and tired when
they arrived at school, with Luke being so tired he had dark circles under his
eyes and would fall asleep at school. Indeed, Luke’s teachers began to provide
clothes and hygiene products for him, and Faith frequently would be sent to the
nurse so she could clean up and get a change of clothes. Father regularly left
the children at home alone. So much so that the police were called multiple
times when the children were found outside unattended. Father did not dispute
that he left the children without supervision, arguing instead that he had no
choice but to leave them alone. But apart from the children being unsupervised
at such young ages, Faith was being left alone with Luke, who had emotional
disabilities and had been seen being “very physical” and “cruel” to Faith. There
was also evidence that Father had physically abused the children and that the
11
abuse turned sexual with Faith. Although Father categorically denied Faith’s
sexual-abuse allegations, the fact-finder was free to credit instead the testimony
of Garcia and Knight regarding Faith’s outcry statements.
All of this conduct, which was more than an isolated act or omission,
allowed a reasonable fact-finder to reasonably form a firm conviction or belief
that Father’s acts and omissions endangered the children. See, e.g., In re S.H.,
No. 02-17-00188-CV, 2017 WL 4542859, at *10–11 (Tex. App.—Fort Worth
Oct. 12, 2017, no pet.) (mem. op.); In re J.R., 501 S.W.3d 738, 743–44 (Tex.
App.—Waco 2016, no pet.); In re M.L.F., No. 02-13-00459-CV, 2014 WL
2465137, at *14 (Tex. App.—Fort Worth May 29, 2014, no pet.) (mem. op.); In re
J.A.S., No. 07-12-00150-CV, 2012 WL 4372952, at *6 (Tex. App.—Amarillo
Sept. 25, 2012, no pet.) (mem. op.); In re R.W., 129 S.W.3d 732, 742 (Tex.
App.—Fort Worth 2004, pet. denied); In re K.M.B., 91 S.W.3d 18, 24–25 (Tex.
App.—Fort Worth 2002, no pet.). And Father’s argument that the trial court’s
endangerment findings were nothing more than a judgment on his economic
status is incorrect under the facts of this case. See generally Tex. Fam. Code
Ann. § 161.001(c)(2) (prohibiting termination if findings based on evidence that
parent is economically disadvantaged); In re S.I.-M.G., No. 02-12-00141-CV,
2012 WL 5512372, at *11 (Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (mem.
op.) (“A parent’s rights cannot be terminated based on poverty without a showing
that the poverty has endangered the child.”).
12
The evidence showed that Father’s conduct, not his poverty, endangered
the children. Father received food stamps but did not provide sufficient food for
the children, allowing a reasonable fact-finder to find that the children were
hungry because Father chose not to provide food for them. Father also refused
DFPS’s offered childcare services, again showing that Father voluntarily chose to
leave the children unattended rather than use available community assistance.
Father’s sporadic employment led to unstable housing, causing the children to
live in unsanitary conditions in a hotel with no reliable phone service and little
access to food. And Father seemed to attribute his employment problems to the
children, arguing that he “lost all of those jobs” because he chose his children
over his job “every time.” The endangerment findings were not based on
Father’s economic status but on his inability to provide for the children’s basic
needs and on his voluntary conduct that endangered the children. See In re
A.N., No. 02-14-00206-CV, 2014 WL 5791573, at *18–19 (Tex. App.—Fort Worth
Nov. 6, 2014, no pet.) (mem. op.); In re D.R., No. 2-06-146-CV, 2007 WL
174351, at *4–6 (Tex. App.—Fort Worth Jan. 25, 2007, no pet.) (mem. op.) cf. In
re S.L.W., 529 S.W.3d 601, 613 n.10 (Tex. App.—Texarkana 2017, pet. denied)
(“The evidence established that [Father] had maintained regular employment and
appropriate housing and, although there was evidence [Father] had difficulty
paying some fees, the evidence did not establish, by clear and convincing
evidence, that [the child’s] needs would go unmet if she were to reside with
[Father].”). We overrule issues two and three.
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C. BEST INTEREST
In his first issue, Father argues that the evidence was factually insufficient
to support the trial court’s finding that termination of his parental rights was in the
children’s best interest. A child’s best interest is a trial court’s “primary
consideration” when determining conservatorship, possession, or access to the
child. Tex. Fam. Code Ann. § 153.002 (West 2014); see also id. § 161.205
(West 2014) (stating if termination not ordered, trial court may either deny the
petition or “render any order in the best interest of the child”). There is a strong
presumption that keeping a child with a parent is in the child’s best interest. See
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But the emotional and physical
interests of the child may not be sacrificed merely to preserve the parent-child
relationship. See E.C.R., 402 S.W.3d at 240. There are several nonexclusive
factors a trial court may consider in determining a child’s best interest, including
the emotional and physical needs of the child now and in the future, the parenting
abilities of the individuals seeking custody, the plans for the child, the stability of
the home or proposed placement, the acts or omissions of the parent indicating
that the parent-child relationship is not a proper one, and the desires of the child.
See Tex. Fam. Code Ann. § 263.307 (West Supp. 2017); Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976); see also C.H., 89 S.W.3d at 27. The
same evidence may be probative of both conduct and best interest. E.C.R.,
402 S.W.3d at 249.
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After the children were removed from Father, both Luke and Faith rapidly
improved. Faith began seeing a counselor, Luke participates in play therapy,
and both are taking needed medications.6 Luke’s behavioral issues subsided
and he was able to regularly stay awake during school. Guidry testified that
Father had damaged Faith and that Faith desired reunification with Luke but not
with Father. Betty testified that the Atkins family is able to provide the
supervision Luke needs. Although Faith’s current foster home was not willing to
adopt her, the Atkins family was willing to do so and planned to adopt Luke.
Betty believed that the children’s best interest would be best served by their
reunification in her home, and Luke expressed that he wants to be with the Atkins
family “forever.” Robinson testified that if it was not possible to reunite Luke with
Faith based on his behavior, DFPS would find an adoption-motivated placement
for her. Robinson stated that stability and permanence were very important for
the children, which they could get only through termination of Father’s parental
rights. The children’s attorney ad litem and Robinson both stated that the
termination of Father’s parental rights was in the children’s best interest.
We conclude that this evidence, combined with the evidence of Father’s
endangering conduct, allowed the fact-finder to reasonably form a firm conviction
or belief that the termination of Father’s parental rights was in the children’s best
interest. See C.H., 89 S.W.3d at 28; S.H., 2017 WL 4542859, at *12–14; In re
6
Luke requires medication for his attention-deficit disorder, aggression, and
sleep disorder; Faith needs medication for her attention-deficit disorder and
anxiety.
15
A.L., 545 S.W.3d 138, 150 (Tex. App.—El Paso 2017, no pet.); In re H.W., No.
11-00-00385-CV, 2002 WL 32344346, at *5–6 (Tex. App.—Eastland June 27,
2002, no pet.) (not designated for publication). See generally Tex. Fam. Code
Ann. § 263.307(a) (presuming prompt and permanent placement of child in safe
environment is in child’s best interest). And we again disagree with Father that
the best-interest evidence shows nothing more than that Father was
economically disadvantaged. See In re A.R.C., No. 11-17-00362-CV, 2018 WL
3060949, at *3 (Tex. App.—Eastland June 21, 2018, no pet. h.) (mem. op.); In re
J.J.D., No. 13-11-00388-CV, 2012 WL 2361796, at *6 (Tex. App.—Corpus Christi
June 21, 2012, no pet.) (mem. op.). We overrule issue one.
III. CONCLUSION
The evidence was factually sufficient to support the fact-finder’s findings
that Father engaged in endangering conduct as defined in subsections (D) and
(E) and that termination of Father’s parental rights was in the children’s best
interest. Accordingly, we overrule Father’s appellate issues and affirm the trial
court’s order of termination. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and BIRDWELL, JJ.
DELIVERED: July 12, 2018
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