in the Interest of L.N.J., Jr., a Child ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-20-00071-CV
No. 07-20-00072-CV
________________________
IN THE INTEREST OF I.J. AND L.N.J., JR., CHILDREN
On Appeal from the County Court at Law Number 1
Randall County, Texas
Trial Court Nos. 75,483-L1 & 76,223-L1; Honorable Jack Graham, Presiding
April 30, 2020
MEMORANDUM OPINION
Before PIRTLE, PARKER, and DOSS, JJ.
Appellant, L.N.J, Sr., appeals from the trial court’s orders terminating his parental
rights to his son and daughter.1 By a sole issue, he contends the evidence is legally and
factually insufficient to support the trial court’s finding that termination of his parental rights
was in the children’s best interests. We affirm.
1
To protect the privacy of the parent and the children, we refer to them by their initials. See TEX.
FAM. CODE ANN. § 109.002(d) (West Supp. 2019). See also TEX. R. APP. P. 9.8(b). The children’s mother
was appointed permanent managing conservator and is not a party to this appeal.
BACKGROUND
L.N.J, Sr. and J.M. had a son, L.N.J., Jr., in January 2018. At that time, they were
living in Harris County. When the child was approximately six months old, he became ill
and his parents took him to a neighborhood hospital. The doctor recommended that the
child be transported to a children’s hospital.
The next day, the parents took the child to the children’s hospital and tests and
scans revealed he had multiple old and new fractures to his skull, ribs, arms, and legs.
The parents offered explanations that the medical staff determined could not have caused
the injuries sustained by the child.
Appellee, the Texas Department of Family and Protective Services, removed the
child from the home after J.M. called a caseworker and reported that L.N.J., Sr. had been
abusing their son. The child was placed with his paternal grandmother and paternal aunt
and the parties entered into a family service plan.
Two days later, the parents refused to cooperate with a detective regarding the
injuries to the child. They contacted an attorney, J.M. recanted her story, and they took
the child from his placement with relatives.
While the Harris County case was pending, J.M. became pregnant. The
Department had advised her to notify her caseworker when she gave birth because of the
pending case involving her son. J.M. gave birth to a daughter, I.J., in January 2019, in
Randall County. She did not notify the Department of the birth. Her failure to notify her
caseworker notwithstanding, the new baby was removed from the parents after her birth
due to the pending case and concern for the newborn’s safety. The Department was also
2
concerned that the parents would flee with the newborn because L.N.J., Sr. had
expressed that the Department would not be taking his new baby. The Department
opened a new case for the baby. Ultimately, L.N.J., Sr. was arrested for injuries inflicted
on his son.
The Department’s Harris County case was later transferred to Randall County and
the two cases were consolidated for trial. At the time of the final hearing, L.N.J., Sr. had
not yet been found guilty for the injuries committed against L.N.J., Jr. He did not appear
at the final hearing but was represented by counsel. At L.N.J., Sr.’s request, counsel
asked for a continuance, after being advised by him that he was searching for new
counsel. The request was denied and the hearing continued.
The only two witnesses were J.M. and a child protective services specialist.
Following their testimony, the trial court terminated L.N.J., Sr.’s parental rights to L.N.J.,
Jr. under section 161.001(b)(1)(D) (knowingly placed or allowed the child to remain in
conditions or surroundings which endangered his well-being), (E) (engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangered his
well-being), (N) (constructively abandoned the child), and (O) (failed to comply with a
court order that established the actions necessary for the parent to obtain the return of
the child following his removal under chapter 262 of the Family Code); and, regarding I.J.,
the trial court terminated his parental rights under section 161.001(b)(1)(N) and (O). See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O) (West Supp. 2019). The trial court
also found that termination of L.N.J., Sr.’s parental rights, as to both children, was in their
best interests. § 161.001(b)(2). The trial court further ordered that J.M. be appointed
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permanent managing conservator of the children and dismissed the Department from the
case.2
APPLICABLE LAW
The Texas Family Code permits a court to terminate the relationship between a
parent and a child if the Department establishes one or more acts or omissions
enumerated under section 161.001(b)(1) of the Code and that termination of
that relationship is in the best interest of the child. See § 161.001(b)(1), (2); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing
evidence. § 161.206(a) (West Supp. 2019). “‘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.” § 101.007 (West
2019).
STANDARD OF REVIEW
The natural right existing between parents and their children is of
constitutional magnitude. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). Consequently, termination proceedings are strictly construed in favor of the
parent. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not
absolute, and it is essential that the emotional and physical interests of a child not be
sacrificed merely to preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The
Due Process Clause of the United States Constitution and section 161.001 of the Texas
2
The trial court also granted J.M.’s request to change the children’s surname to hers.
4
Family Code require application of the heightened standard of clear and convincing
evidence in cases involving involuntary termination of parental rights. See In re E.N.C.,
384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
In a legal sufficiency challenge, we credit evidence that supports the verdict if
reasonable jurors could have done so and disregard contrary evidence unless reasonable
jurors could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex.
2014). However, the reviewing court should not disregard undisputed facts that do not
support the verdict to determine whether there is clear and convincing evidence. Id. at
113. In cases requiring clear and convincing evidence, even evidence that does more
than raise surmise and suspicion will not suffice unless that evidence is capable of
producing a firm belief or conviction that the allegation is true. Id. If, after conducting a
legal sufficiency review, a court determines that no reasonable fact finder could form a
firm belief or conviction that the matter that must be proven is true, then the evidence is
legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, a court of appeals must give due consideration to
evidence that the fact finder could reasonably have found to be clear and
convincing. In re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d at 25). We must
determine whether the evidence is such that a fact finder could reasonably form a firm
belief or conviction about the truth of the Department’s allegations. In re J.F.C., 96
S.W.3d at 266. We consider whether disputed evidence is such that a reasonable
fact finder could not have resolved that disputed evidence in favor of its finding. If, in light
of the entire record, the disputed evidence that a reasonable fact finder could not have
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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. Id.
BEST INTEREST FINDING
L.N.J., Sr. does not challenge any of the statutory grounds for termination.
Rather, by a sole issue, he contends the evidence is legally and factually insufficient to
support the trial court’s finding that termination of his parental rights was in the children’s
best interests. We disagree.
The Department was required to prove by clear and convincing evidence that
termination of L.N.J., Sr.’s parental rights was in the children’s best interests. §
161.001(b)(2); In re K.M.L., 443 S.W.3d at 116. Only if no reasonable fact finder could
have formed a firm belief or conviction that termination of his parental rights was in
the children’s best interest can we conclude the evidence is legally
insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).
There is a strong presumption that the best interest of the child will be served by
preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. § 263.307(a) (West 2019). Section
263.307(b) of the Family Code provides a non-exhaustive list of factors to consider in
determining whether the parent is willing and able to provide the child with a safe
environment. One of those factors is providing the child with a safe home environment,
free from threats of physical harm. § 263.307(b)(12)(D).
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Additionally, the Supreme Court has set out other factors to consider when
determining the best interest of a child. See Holley, 544 S.W.2d at 371-72. Those factors
include (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 individual seeking custody; (5) the programs available to
assist the individual to promote the best interest of the child; (6) the plans for the child by
the individual or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions of the parent that may indicate that the existing
parent-child relationship is not a proper one; and (9) any excuse for the acts or
omissions of the parent. Id. The Department is not required to prove all of these factors
and the absence of evidence of one or more does not preclude a fact finder from
reasonably forming a strong conviction or belief that termination is in the child’s best
interest. In re C.H., 89 S.W.3d at 27. This is particularly so where the evidence is
undisputed that the parental relationship endangered the safety of a child. Id.
Evidence that supports one or more statutory grounds for termination is also
probative of the trial court’s best interest finding. See In re C.H., 89 S.W.3d at 28. See
also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013). The best interest analysis may
consider circumstantial evidence, subjective factors, and the totality of the evidence as
well as direct evidence. See In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo
2011, no pet.). Additionally, a child’s need for permanence through the establishment of
a “stable, permanent home” has been recognized as the paramount consideration in
determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007,
no pet.).
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ANALYSIS
By his sole issue, L.N.J., Sr. acknowledges that evidence which supports a
statutory ground for termination is relevant to a best interest determination. Nevertheless,
he maintains the evidence is legally and factually insufficient to support the trial court’s
best interest finding in this case. We disagree.
J.M. testified that L.N.J., Sr. abused her and their son. She explained that she
recanted her story and perjured herself at a previous hearing because she was still living
with L.N.J., Sr. and feared for her safety. On one occasion, he showed up at her place
of employment and assaulted her. After that, she had no contact with him for almost a
year. She filed a police report, but at the time of the final hearing, no action had been
taken.
While J.M. worked her court-ordered services, the children were in their paternal
grandmother’s care. J.M. testified she completed her services and learned from them.
She further testified that it would be in her children’s best interests to terminate their
father’s parental rights. She described him as a “stranger” to the children.
After J.M. completed her court-ordered services, she was reunited with her
children beginning in September 2019, approximately four months before the final
hearing. According to the Department’s services specialist, J.M. was a very capable
mother and was meeting all of her children’s needs, including their medical needs. She
testified that J.M. was doing “a great job” and affirmed that the children were thriving in
their mother’s care.
8
The Department was not required to establish all the Holley factors. The children
were too young to express their wishes. When children are too young to express their
desires, the fact finder may consider their circumstances, for example, that they have
bonded with their care giver and are well cared for in their current placement. See In re
E.W., Nos. 14-19-00666-CV, 14-19-00724-CV, 2020 Tex. App. LEXIS 1232, at *31 (Tex.
App.—Houston [14th Dist. Feb. 13, 2020, no pet.) (mem. op.). The Department
established that J.M. took advantage of programs to assist her in caring for her children
and they were thriving in her care. She completed her services and testified that she
benefitted from them. She proved she could properly care for her children and provide
them with a stable home.
L.N.J., Sr. maintains that a best interest finding must have a firm basis on facts
standing apart from the offending behavior in support of the statutory grounds. Relying
on In re S.R.L., 243 S.W.3d 232, 235 (Tex. App.—Houston [14th Dist.] 2007, no pet.), he
argues that under the Holley factors, no rational trier of fact could have formed a firm
belief or conviction that terminating his parental rights was in his children’s best interests.
In In re S.R.L., the father had a criminal history that resulted in lengthy periods of
incarceration. However, evidence favorable to him was presented at the final hearing,
including completion of services that were available to him during incarceration. The trial
court noted that the father had not “done anything bad” to his children. Id. at 234. Both
the guardian ad litem and the trial court believed that the father should have some
involvement with his children but that there was no legal basis to award visitation to him
if his rights were terminated. Id. After hearing all the evidence, the trial court announced
that the Department had proven only one statutory ground for termination (subsection (Q)
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which applies to incarcerated parents) but had not established that termination was in the
children’s best interests. Id. However, contrary to its announcement, in its written order
the trial court entered a finding that termination was in the children’s best interests. Id.
On appeal, the parent contested the legal and factual sufficiency of the statutory
ground and the best interest finding. Although the court of appeals noted that the best
interest determination is a separate inquiry, it agreed the record showed that the trial court
had not formed a firm belief or conviction that termination was in the children’s best
interests and reversed the termination order. Id. at 235-36.
In re S.R.L. is, therefore, clearly distinguishable. We agree that the best interest
finding is a separate inquiry; however, it is well-settled that evidence which supports the
statutory grounds is probative of the best interest finding. See In re C.H., 89 S.W.3d at
28. Furthermore, evidence presented in In re S.R.L. negated a finding that termination of
the father’s rights was in the best interests of his children, a circumstance missing in this
case.
Here, the evidence showed that L.N.J., Sr. was abusive.3 The undisputed
evidence showed that he seriously injured his son when he was just six months old and
was charged with injury to a child. He also assaulted J.M. while she was at work. The
testimony further established that he worked only some of his services, while J.M.
3
Intertwined with his best interest argument, he asserts the evidence was insufficient to show he
abused his son. He did not, however, challenge the statutory grounds that he allowed his son to remain in
conditions or surroundings that endangered his well-being or that he engaged in conduct that endangered
his son’s well-being. Thus, those findings are binding on this court and are probative evidence of the best
interest finding. See In re C.A., 579 S.W.3d 140, 146 (Tex. App.—Amarillo 2017, pet. denied); In re S.R.,
No. 07-19-00164-CV, 2019 Tex. App. LEXIS 8701, at *15 (Tex. App.—Amarillo Sept. 26, 2019, no pet.)
(mem. op.).
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completed her services and provided a safe and stable home for her children. L.N.J., Sr.
did not appear for the final hearing and no evidence was presented on his behalf about a
plan for the children or any stability on his part affecting his ability to parent his children.
Based on the record before us, we find the trial court’s firm belief or conviction that
termination of L.N.J., Sr.’s parental rights was in the children’s best interests is supported
by clear and convincing evidence. Accordingly, L.N.J., Sr.’s sole issue is overruled.
CONCLUSION
The trial court’s orders terminating the parental rights of L.N.J., Sr. to his son and
daughter are affirmed.
Patrick A. Pirtle
Justice
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