

[pic]






      NUMBER 13-10-00132-CV

      COURT OF APPEALS

      THIRTEENTH DISTRICT OF TEXAS

      CORPUS CHRISTI - EDINBURG


                      IN THE INTEREST OF R.E.S. III, J.D.S. AND A.E.S., CHILDREN


                                On appeal from the 36th District Court
                                    of San Patricio County, Texas.


                                          MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Benavides
      Memorandum Opinion by Justice Benavides

      In this case involving the termination of parental rights, appellant, D.C., brings four  issues
on appeal.  By her first three issues, D.C. argues that there was legal  and  factually  insufficient
evidence to prove that:  (1) termination of parental rights was in  her  children’s  best  interests;
(2) she knowingly placed or allowed her children  to  remain  in  conditions  or  surroundings  which
endangered their physical or emotional well-being; and  (3)  she  engaged  in  conduct  or  knowingly
placed her children with persons who engaged in conduct which endangered their physical or  emotional
well-being.  D.C.’s fourth issue complains  that  the  Texas  Department  of  Family  and  Protective
Services (the “Department”) failed to make a reasonable effort to return her  children  to  her.   We
affirm.
                                            I. Background
      D.C. is the mother of R.E.S. III, a five-year old boy, and J.D.S.,  a  three-year  old  boy.[1]
Her children’s father is R.S., who is married to A.S.[2]  This appeal arises from a  hearing  wherein
the trial court terminated D.C.’s parental rights of R.E.S. and J.D.S.
      The record shows that D.C.’s first involvement with the Department occurred in  November  2006.
The Department initiated an investigation of D.C. and R.S. upon receiving a complaint that they  were
neglecting R.E.S. and J.D.S. and using drugs.  As a result of the  Department’s  investigation,  D.C.
signed a voluntary placement and service plan with  the  Department,  which  temporarily  placed  her
children with her sister.  On December 2, 2006, D.C. was arrested for  possession  of  chemicals  for
manufacturing methamphetamine, a fact which she admitted under oath:
      Q.    Now, did you think that, for example, that living in a home that had  a  meth  lab,  that
           would help you get your children back?


      A.    No, sir.


      Q.    But that’s what you were doing; correct?


      A.    Yes, sir.


      D.C. pled guilty to this offense and received ten years’  community  supervision.   In  October
2008, the Bandera County District Attorney’s  office  filed  a  motion  to  revoke  D.C.’s  community
supervision, alleging multiple violations of the terms of  her  probation.   The  alleged  violations
included:  (1) assault causing bodily injury to another  person;  (2)  being  in  the  company  of  a
convicted felon; (3) failure to notify her probation officer of her change of address within  twenty-
four hours; (4) failure to pay fines, court costs, probation fees, and crimestopper’s fees;  and  (5)
failure to complete community service hours.  The trial court did  not  revoke  D.C.’s  probation  at
that time.  Instead, the court continued her probation and ordered  her  to  report  to  a  community
residential treatment center in Uvalde, Texas.  The court ordered D.C. to complete a  drug  treatment
program and parenting classes at the center, as well as undergo therapy  and  maintain  contact  with
her children through letters.
      The trial court ultimately revoked D.C.’s probation  on  August  27,  2009,  though,  when  she
received a disorderly conduct ticket and was “unsuccessfully discharged” from the  treatment  center.
The record showed that she failed to complete  the  court-ordered  drug  rehabilitation  program  and
parenting classes.  D.C. signed a plea agreement that sentenced her to two years in  prison  and  one
year in state jail.  She claims that, while in prison, she wrote letters to  and  drew  pictures  for
R.E.S. and J.D.S.  She was released from prison two weeks before the termination of  parental  rights
hearing.  Her children had not been in her care since November 2006.
      During the time D.C. was in prison, R.E.S. and J.D.S. resided with their father  R.S.  and  his
wife A.S.  On January 24, 2009, A.S. took J.D.S. to Driscoll Children’s Hospital in  Corpus  Christi,
where the Department was immediately notified.  Department investigator Laura  Alaniz  reported  that
J.D.S. had bruises on his face, legs, and back, and  that  his  injuries  were  not  consistent  with
A.S.’s report that J.D.S. had fallen in the bathtub.  A.S. later changed her story and  told  another
Department investigator, Juan Garcia, that she became upset when J.D.S.  soiled  himself  and  picked
him up by the chest, which caused his bruises.
      Carol McLaughlin, R.N., a forensic nurse on the Child  Abuse  Resource  and  Evaluation  (CARE)
Team at Driscoll, testified that she documented approximately twenty-nine injuries to J.D.S., all  of
which were caused by non-accidental trauma.  The injuries  included  multiple  bruises  in  different
stages of healing from the top of J.D.S.’s head to his  legs.   She  testified  that  an  x-ray  also
revealed he had a pubic bone fracture.  Nancy Harper, M.D., the CARE medical director  and  a  board-
certified pediatrician with a sub-specialty certification in  child  abuse  pediatrics,  corroborated
that J.D.S.’s injuries were serious.  Dr. Harper stated that a CAT scan  of  J.D.S.’s  head  revealed
bleeding between his scalp and skull.  She testified that “he was basically a two[-]year old  with  a
healing pubic bone fracture, which requires . . . high impact force for that  to  occur.”   She  also
reported that J.D.S. had “a subgaleal hemorrhage on his scalp that placed  him  at  risk  for  anemia
transfusion, shock” and that he had rhabdomylosis, which is muscle breakdown from trauma.   A.S.  was
eventually convicted of injury to a child and served time in prison.
      After considering all of the evidence, the trial court terminated  D.C.’s  parental  rights  of
R.E.S. and J.D.S.[3]  D.C. subsequently filed this appeal.
                              II.  Standard of Review and Applicable Law
      In hearings regarding the termination of parental rights, due process requires that  the  State
prove its case for termination by clear and convincing  evidence.   In  re  J.F.C.,  96  S.W.3d  256,
263–64 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982); In re G.M., 596 S.W.2d  846,
847 (Tex. 1980)).  The clear and convincing standard is defined as 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.”  Tex. Fam. Code Ann. § 101.007 (West 2008).
      Taking this elevated standard of review into consideration, an appellate court,  reviewing  the
legal sufficiency of the evidence in a parental termination case,  must  determine  whether  a  fact-
finder could have reasonably formed a firm belief or conviction  that  the  grounds  for  termination
were proven.  In re J.F.C., 96 S.W.3d at 265–66.  All evidence should be reviewed “in the light  most
favorable to the judgment.”  Id. at 266.  This means that an appellate court  must  assume  that  the
fact-finder resolved any disputed facts in favor of its finding if  a  reasonable  fact-finder  could
have done so.  Id.  An appellate court must also disregard  all  evidence  that  a  reasonable  fact-
finder could have disbelieved.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).   “If  [an
appellate court] determines that no reasonable fact-finders could form a firm  belief  or  conviction
that the matter that must be proven is true, then that court  must  conclude  that  the  evidence  is
legally insufficient.”  In re J.F.C., 96 S.W.3d at 266.
      Similarly, the clear and convincing standard  of  review  in  a  parental  termination  hearing
requires a higher level of evidence in order to be factually sufficient.  See In re C.H.,  89  S.W.3d
17, 25 (Tex. 2002). The appellate standard for reviewing parental  termination  factual  findings  is
whether the evidence is such that a  fact-finder  could  have  reasonably  formed  a  firm belief  or
conviction about the truth of the State's allegations.  Id.  In reviewing the  evidence  for  factual
sufficiency, we must determine whether, on the entire record, a fact-finder could reasonably  form  a
firm conviction or belief that the parent violated a provision of section 161.001(1)  of  the  family
code and that the termination of parental rights would be in the best interest of the child.   In  re
M.C.T., 250 S.W.3d 161, 168 (Tex. App.—Fort Worth 2008, no pet.) (citing In re  C.H.,  89  S.W.3d  at
28).  “If, in light of the entire record, the disputed evidence that a reasonable  fact-finder  could
not have credited in favor of the finding is  so  significant  that  a  fact-finder  could  not  have
reasonably formed a firm belief or conviction in the truth of  its  finding,  then  the  evidence  is
factually insufficient.”  Id. (citing  In  re  H.R.M.,  209  S.W.3d  105,  108  (Tex.  2006)).   When
termination is based on multiple grounds under section 161.001(1), a court  of  appeals  must  affirm
the order if the evidence is sufficient to support any one of  the  grounds  found  by  the  district
court.  See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
                                            III.  Analysis
A.    Best Interests of the Child
      In her first issue, D.C. argues that the evidence is  legally  and  factually  insufficient  to
show that termination of her parental rights was in the best interests of her  children.   The  Texas
Supreme Court has set forth nine  non-exhaustive  factors  that  a  trial  court  may  consider  when
determining if termination of parental rights is in the best interests of the children.   See  Holley
v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).  These 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 individuals seeking custody;


      (5)   the programs available to assist these individuals to promote the best  interest  of  the
           child;


      (6)   the plans for the child by these individuals or by the agency seeking custody;


      (7)   the stability of the home or proposed placement;


      (8)   the acts or omissions of the parent which 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. at 372.  A party seeking an involuntary termination of parental rights is not required  to  prove
all nine Holley factors.  In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).   We  address  these  factors  in
turn.
      First, with respect to the desires of the child, we note that R.E.S. and J.D.S. are  too  young
to articulate their desires.  See generally Tex. Fam.  Code  Ann.  §  156.101(2)  (West  Supp.  2010)
(providing that a child may not indicate a preference of  their  primary  residence  until  they  are
twelve-years old).  However, a court may consider the lack of an emotional bond between children  and
their parents as a consideration in termination hearings.  See In re  C.N.S.,  105  S.W.3d  104,  106
(Tex. App.—Waco 2003, no pet.).  D.C. has not cared for her children since November  2006,  when  she
voluntarily allowed her sister to care for them.  The record shows that the last  time  she  saw  her
sons was over three years ago, in September 2008.  Although D.C. claims to have  written  letters  to
her sons from prison, there is no evidence that her sons in fact received these  letters.   From  the
record, it is unclear whether D.C. and her sons have established an emotional bond.   Based  on  this
evidence, the fact-finder could have inferred that the children may  not  desire  to  be  taken  from
their current placement to be with someone with whom they have had little to no contact.
      The physical and emotional dangers to a  child  are  also  crucial  factors  to  consider.  See
Holley, 544 S.W.2d at 372.  “Although ‘endanger' means more than a threat of metaphysical  injury  or
the possible ill effects of a less-than-ideal family  environment,  it  is  not  necessary  that  the
conduct be directed at the child or that the child actually suffers injury."  See  In  re  M.C.,  917
S.W.2d 268, 269 (Tex. 1996).  D.C. admitted that, at one point, she used drugs and lived  in  a  home
with a methamphetamine lab.  A parent’s drug use can constitute endangering conduct.  In  re  J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009); Tex. Dep't of Human Servs.  v.  Boyd,  727  S.W.2d  531,  533  (Tex.
1987).  D.C. later served time for these offenses, which is another consideration in  this  analysis:
“imprisonment, coupled with a course of conduct including drug abuse, may support a finding that  the
parent engaged in a course of conduct which endangered a child's physical or  emotional  well-being.”
In re K.C., Jr., 23 S.W.3d 604, 608 (Tex. App.—Beaumont 2000, no pet.).
      Regarding D.C.’s parental abilities, again, she admitted that she used drugs  and  lived  in  a
home with a lab that manufactured methamphetamine.  See Holley, 544 S.W.2d at 372.  She  also  stated
that she has not seen her children in over three years, although she did attempt  to  keep  in  touch
with them through letters.  While on probation, she committed the  crime  of  assault  and  consorted
with convicted felons, both of which were violations of  the  terms  of  her  community  supervision.
Furthermore, although she had access to two programs at the Uvalde treatment center which would  help
her parenting abilities, she failed to make complete use  of  these  resources.   A  fact-finder  may
infer that a parent’s future conduct can be measured by  her  past  conduct.   See  Davis  v.  Travis
County Child Welfare Unit, 564 S.W.2d 415, 421 (Tex. Civ. App.—Austin  1978,  no  writ).   Here,  the
trial court as fact-finder could have determined that D.C.’s prior drug use,  criminal  history,  and
failure to complete the court-ordered programs could be a reflection on D.C.’s  future  parenting  to
R.E.S. and J.D.S.
      D.C. testified that she had a place for R.E.S. and J.D.S. to stay, food for them  to  eat,  and
that her sister could help babysit them when she was at work.  However, the trial  court  could  have
questioned the stability of these living plans given that she was released from jail only  two  weeks
prior to the termination hearing.  See Holley,  544  S.W.2d  at  372.   “The  trial  court  [is]  not
required to accept the truth or accuracy of appellant's testimony, either as to her past  actions  or
her future intentions.”  D.F. v. State, 525 S.W.2d 933, 939–40 (Tex. Civ.  App.—Houston  [1st  Dist.]
1975, writ ref’d n.r.e.).  Thus, the trial court reasonably could have doubted D.C.’s  testimony  and
her plans for her children, given her recent release from jail.
      We find the trial court’s summary of the evidence regarding D.C. persuasive in our analysis  of
R.E.S. and J.D.S.’s best interests:
      That gets us to [D.C.].  Again, we’ve got some issues here and the biggest note that I  had  is
      that these children were taken, placed outside her home since 2006.  She complains about  where
      they’ve been, what they’ve had, what’s been going on and I had to ask myself  the  question  is
      what has she done to try to get her kids back.  What  has  she  done?   She  winds  up  getting
      arrested.  She winds up going to drug treatment.  She gets thrown out of drug  treatment.   She
      winds up getting revoked on her probation and she winds up going  to  prison.   These  are  all
      things that you did, [D.C.]; that you did yourself.  No one forced  you  to  do  these  things.
      This is what you did.  And  that  allowed  these  children  to  remain  in  environments  which
      endangered their well-being; their emotional well-being, if anything . . .  You haven’t been in
      your home since 2006.  I’m not even sure they would know their mother. . . .


      In light of the foregoing evidence, we conclude that the Department proved that termination  of
D.C.’s parental rights was in the children’s best interests by clear and convincing evidence.  In  re
J.F.C., 96 S.W.3d at 263.  Viewing the evidence in the light  most  favorable  to  the  judgment,  we
conclude that the evidence supporting D.C.’s termination of parental rights was  legally  sufficient.
Id. at 265-66.  Further, because a  fact-finder  could  have  reasonably  formed  a  firm  belief  or
conviction that termination of D.C.’s parental rights was in  the  children’s  best  interests,  this
finding was supported by factually sufficient evidence, as well.  See In re C.H., 89  S.W.3d  at  25.
We overrule D.C.’s first issue.
B.    Conditions or Surroundings Which Endangered the Children’s Physical or Emotional Well-being

      D.C. further complains that the evidence that she knowingly placed or allowed her  children  to
remain in conditions or surroundings which endangered their  physical  or  emotional  well-being  was
legally and factually insufficient.  Specifically, she argues that J.D.S. was injured by  A.S.  while
D.C. was in prison, and that she had no control over who cared for her son during this time.
      However, D.C. did  admit  that  she  once  used  drugs  and  lived  in  a  home  that  produced
methamphetamine.  These “conditions or surroundings” endangered  R.E.S.  and  J.D.S.’s  physical  and
emotional well-being.  “A parent's use of narcotics and its effect on his or her  ability  to  parent
may qualify as an endangering course of conduct.”  In re J.O.A., 283  S.W.3d  at  345.   Viewing  the
evidence in the light most favorable to the judgment, we  conclude  that  the  evidence  was  legally
sufficient that D.C.  knowingly  placed  or  allowed  her  children  to  remain  in  conditions  that
endangered their physical and emotional well-being.  In re J.F.C., 96  S.W.3d  at  265–66.   Further,
because the evidence is such that a  fact-finder  could  have  reasonably  formed  a  firm belief  or
conviction about the truth of the State's allegations,  this  finding  is  factually  sufficient,  as
well.  See In re C.H., 89 S.W.3d at 25.  Accordingly, we overrule this second issue.
C.    Conduct Which Endangered the Children’s Physical or Emotional Well-being

      D.C. further contends that there was legally  and  factually  insufficient  evidence  that  she
engaged in conduct or knowingly placed her  children  with  persons  who  engaged  in  conduct  which
endangered their physical or emotional well-being.  Again, she points out  that  J.D.S.  was  injured
while she was in prison and he was in the care of his father R.S. and stepmother A.S..   However,  if
multiple grounds for termination are alleged, only one predicate finding under  the  family  code  is
necessary to support a judgment of termination when there is also a finding that  termination  is  in
the child’s best interests.  See In re A.V., 113 S.W.3d at 362; Tex.  Fam.  Code  Ann.  §  161.001(1)
(West Supp. 2010).  Because we have concluded that the evidence was legally and factually  sufficient
that termination of D.C.’s parental rights was  in  the  children’s  best  interests,  and  that  she
endangered her children’s conditions or surroundings, we need not address this issue.   See  Tex.  R.
App. P. 47.1 (“[t]he court of appeals  must  hand  down  a  written  opinion  that  is  as  brief  as
practicable but that addresses  every  issue  raised  and  necessary  to  final  disposition  of  the
appeal.”).
D.    The State’s Efforts to Return the Children to D.C.
      By her fourth issue, D.C. complains that the Department failed to make  reasonable  efforts  to
return her children to her.  She cites the following:
      Efforts shall be made to preserve and reunify families—

      (i)   prior to the placement of a child in foster care, to prevent or eliminate  the  need  for
           removing the child from the child’s home; and


      (ii)  to make it possible for a child to safely return to the child’s home.
42 U.S.C.A. § 671(a)(15) (2006).  The evidence shows  that  D.C.’s  personal  choices  prevented  the
State from reuniting her with her children.  D.C. admitted that she once used drugs and  lived  in  a
home with a lab that manufactured methamphetamine.  While  on  probation,  she  engaged  in  criminal
conduct by assaulting another person and also associated with a convicted felon, both of  which  were
violations of the terms of her community supervision.  When the trial court ordered her to report  to
a community residential treatment center in Uvalde, Texas, instead of prison, she failed to  complete
her court-ordered drug rehabilitation program and parenting classes.  We are therefore not  persuaded
by this facet of D.C.’s argument.
      D.C. also argues that the Department failed to provide  a  placement  plan  for  her  children.
Evidence about placement plans and adoption are, of course, relevant to best interest.  In  re  C.H.,
89 S.W.3d 17, 28 (Tex. 2002).  However, the lack of evidence about  definitive  plans  for  permanent
placement and adoption cannot be the dispositive factor;  otherwise,  determinations  regarding  best
interest would regularly be subject to reversal on the sole ground that an adoptive  family  has  yet
to be located.  Id.  Instead, the inquiry is whether, on  the  entire  record,  a  fact-finder  could
reasonably form a firm conviction or belief that termination of the parent's rights would be  in  the
child's best interest—even if the agency is unable to identify  with  precision  the  child's  future
home environment.  Id.  In light of the foregoing, we overrule D.C.’s fourth issue.
                                            IV. Conclusion
      Having overruled all of D.C.’s issues, we affirm the judgment of the trial court.


                                             ________________________
                                             GINA M. BENAVIDES,
                                             Justice


Delivered and filed the
23rd day of June, 2011.



-----------------------
[1] The ages of the children reflect their ages at the time of the  termination  of  parental  rights
hearing, held on January 28, 2010, January 29, 2010, and  February  4,  2010  in  the  36th  Judicial
District Court of San Patricio County, Texas.

[2] R.S. and A.S. had a seventeen-month old girl, A.E.S., who is not a subject in this appeal.

[3] The trial court also terminated R.S.’s parental rights  over  R.E.S.,  J.D.S.,  and  A.E.S.,  and
A.S.’s parental rights over A.E.S.  Neither R.S. nor A.S. appealed this decision.


