      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00761-CV



                              Steven Roger Berthiaume, Appellant

                                                  v.

              Texas Department of Protective and Regulatory Services, Appellee




    FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
        NO. 8114, HONORABLE GUILFORD L. JONES, III, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found that appellant Steven Roger Berthiaume’s parental rights to his children

T.M.B. and R.J.B. should be terminated,1 and the trial court signed an order to that effect.

Berthiaume appeals, contending the evidence is insufficient to support a finding that termination is

in the children’s best interest. We affirm the trial court’s order.


                                         Factual Summary

                In August 2002, appellee the Texas Department of Protective and Regulatory Services

received a report that T.M.B. and R.J.B. were being neglected. Brandi Roundtree, a Department

caseworker, testified that she talked to Sylvia Nieto, Berthiaume’s girlfriend, who said she was




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           At the time of trial in December 2003, T.M.B. was nine years old and R.J.B. was eight.
watching the children while Berthiaume was in jail. Roundtree found that the children were living

in an abandoned building without electricity or water, that T.M.B. was wetting her pants, that the

children’s clothes were dirty, that the family was homeless, and that Berthiaume had been laid off

from his job. On August 19, Roundtree interviewed Berthiaume in jail, where he explained that he

had violated his probation and left the children with Nieto until he was released. On August 27,

Roundtree learned that Nieto had left the children with another woman who said she could keep the

children for a while. The children were taken into Department custody in September.

               Dan Bertram, a Department caseworker, testified that when T.M.B. was taken into

Department custody, she was having trouble with bed-wetting and defecating in her bed. Since then,

her condition had improved, but she was depressed and still had some trouble with bed-wetting.

T.M.B. takes medications for ADHD and to help with her depression and bed-wetting. R.J.B. suffers

from fetal alcohol syndrome, is taking some remedial classes, and is on medication for ADHD.

Bertram said the children were doing well in therapeutic foster care, but that the stress of the

holidays and the trial had impacted their behavior negatively. Bertram testified that T.M.B. and

R.J.B.’s relationship had normalized since they have been in foster care. When they were first

removed from Berthiaume’s care, they clung to each other, but they have since started to behave like

normal brothers and sisters, fighting occasionally and separating somewhat. Bertram said it was in

the children’s best interest to be adopted together, which was the Department’s goal. Bertram said

T.M.B. wants to remain with her father, but he believes that if Berthiaume’s parental rights are

terminated, T.M.B. would be open to adoption. He said that she “has expressed that she would not

mind being adopted, as long as, she could have some sort of contact with her father.”



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               Bertram said Berthiaume had been arrested at least seven times since 1992, including

arrests for theft by check and theft. Berthiaume had four or five offenses of driving under the

influence or while intoxicated and was also arrested for public intoxication. His probation was

revoked because he did not pay his probation fees, did not attend substance abuse counseling, and

did not report to his probation officer, and he was sentenced to sixteen months in state jail. Bertram

further testified that Berthiaume completed a parenting class, an anger management class, and a drug

and alcohol assessment, but refused to attend the Alcoholics Anonymous meetings that the

psychologist recommended and the Department required. Berthiaume attended six counseling

sessions, but after he missed several sessions, counseling was canceled. Bertram said Berthiaume

had missed nine of twenty-two scheduled visits with his children, sometimes simply failing to

appear. According to Bertram, Berthiaume’s doctor said Berthiaume refuses to accept his probable

alcoholism or attend AA meetings and gave only a “guarded” prognosis for improvement. Bertram

said that until Berthiaume’s arrest, the Department felt there was a chance of reuniting the family.

Even at that time, however, the Department was moving toward termination because of Berthiaume’s

alcohol abuse and failure to meet his therapist’s recommendations. Berthiaume’s brother said that

he would be willing to adopt the children but not foster them because he did not want to be involved

with Berthiaume, and one of Berthiaume’s sisters expressed similar concerns.

               Donna Ross, the children’s counselor, testified she was helping T.M.B. learn “how

to be a kid again,” after being placed in a parenting role for so long. T.M.B. misses her father and

is scared about the life-changing decisions being made in the termination proceeding. Ross said that

if T.M.B. is placed into a stable home, she will probably not need therapy for very long and that



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R.J.B. would adapt to an adoptive placement if he were placed with T.M.B. Ross was concerned

that if T.M.B. returned to Berthiaume’s care she would be forced back into a caretaker role.

                Francis Kerby, the children’s guardian ad litem, testified that T.M.B. loves her father

very much and that R.J.B. is a loving child, but will not talk about his past. If Kerby asks about

school or toys, R.J.B. will interact, but if she asks about his past, he will not look at her and acts like

she never asked the question. Kerby feared that Berthiaume would not be able to provide necessities

for the children and that they would again be forced to grow up too fast. Being in foster care, the

children have been able to act like children again, and Kerby believes it is in the children’s best

interest for Berthiaume’s parental rights to be terminated.

                Angela Burleson, the children’s foster mother, testified that when the children first

arrived, they were very quiet and withdrawn and kept to themselves and that T.M.B. acted as a parent

for R.J.B. By the time of trial, they were interactive and verbal and had made significant progress

on personal hygiene, table manners, use of utensils, interaction with other children, and school work.

Burleson had spoken to the children about foster care and the possibility of adoption and was not

sure R.J.B. understood the concepts, but believed T.M.B. would accept adoption if it were ordered.

                Berthiaume testified that he was able to provide housing for the children until August

2002, when he injured himself and lost his job. After that, he and the children stayed with friends

and relatives for a while. Berthiaume denied that he and the children were living in a building

without water and electricity and said that in August 2002, they were living at a friend’s house or at

Nieto’s mother’s house. Berthiaume said that Nieto drinks and that if she does not stop drinking

when he is released, he will not continue their relationship. Berthiaume testified that he had sought



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to have his probation revoked so he could finish his jail time because the Department was holding

his probation against him. Berthiaume said that he had not had a drink in a year and a half and did

not need to attend AA meetings, but has started voluntarily attending AA meetings while in jail.

                Berthiaume said that although he obviously could not care for the children while in

jail, he was sure his mother, sister, or brother would. When reminded that his brother will not agree

to be a custodian for the children but will only adopt them, Berthiaume said that he was sure he could

persuade his brother otherwise. Asked what he planned to do once he was released, he said he was

taking a computer class in jail to try to get a better job once he is released and has a job waiting for

him at a Days Inn. He intends to live with his mother or his sister and then rent a house, but said it

would probably be more than a year before he was released from jail and got a job and a house. He

testified that he was never going to go back to jail again.

                Berthiaume’s mother testified that she did not want to have Berthiaume’s rights to

the children terminated. She testified that she could not afford to care for them in the meantime.

She believed it would be best for them to stay with him once he was released from prison. Pressed

to state what she believed was in the children’s best interest, not in Berthiaume’s best interest, she

said that they needed “to get into a steady home where [they’re] going to be all the time.” She

thought Berthiaume could provide such a home once he was released from jail.


                                         Standard of Review

                A person’s parental rights may be terminated only if the Department proves and the

trial court finds by clear and convincing evidence (1) that the parent has engaged in conduct set out

as statutory grounds for termination, and (2) that termination is in the child’s best interest. Tex. Fam.

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Code Ann. § 161.001 (West 2002); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Evidence is clear and

convincing if it “will produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations” supporting termination. C.H., 89 S.W.3d at 23 (quoting State v. Addington, 588

S.W.2d 569, 570 (Tex. 1979)). In reviewing the legal sufficiency of the evidence, we consider all

of the evidence in the light most favorable to the finding and determine whether a reasonable trier

of fact could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002). We review the factual sufficiency of the evidence by viewing all of

the evidence and determining whether a reasonable fact-finder could have resolved disputed

evidence in favor of its finding. Id. If the disputed evidence is such that a reasonable fact-finder

could have formed a firm belief as to the truth of the State’s allegations, the evidence is factually

sufficient. Id.; C.H., 89 S.W.3d at 25. We must maintain appropriate deference to the fact-finder’s

role by assuming that it resolved evidentiary conflicts in favor of its finding when reasonable to do

so and by disregarding evidence that it could have disbelieved. J.F.C., 96 S.W.3d at 266-67.

                Some of the factors to be considered in determining a child’s best interests are: the

child’s wishes; the child’s emotional and physical needs now and in the future; emotional or physical

danger to the child now and in the future; the parenting abilities of the parties seeking custody;

programs available to help those parties; plans for the child by the parties seeking custody; the

stability of the proposed placement; the parent’s conduct indicating that the parent-child relationship

is improper; and any excuses for the parent’s conduct. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.

1976). Permanence is of paramount importance in considering a child’s present and future needs.

In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied); In re M.A.N.M., 75



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S.W.3d 73, 77 (Tex. App.—San Antonio 2002, no pet.); Salas v. Texas Dep’t of Protective &

Regulatory Servs., 71 S.W.3d 783, 792 (Tex. App.—El Paso 2002, no pet.); see Lehman v. Lycoming

County Children’s Servs. Agency, 458 U.S. 502, 513 (1982) (children need stable, long-term

relationships with caretakers). A fact-finder may compare the parent’s and the Department’s plans

for a child and may consider the possible consequences of a decision not to terminate. D.O. v. Texas

Dep’t of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no writ).


                                              Analysis

               Berthiaume has had repeated trouble with the law and alcohol-related problems.

Although he testified that he had not had a drink in more than a year and that he was never going to

get sent back to jail, the fact-finder could reasonably have concluded otherwise. During the time that

the children were involved with the Department, Berthiaume was evaluated by doctors and told to

attend AA meetings, but refused to do so, saying he did not have a drinking problem. Not until he

was in jail did he begin attending AA meetings. Through a combination of unfortunate events,

Berthiaume and the children found themselves to be homeless for a time, and during this time

Berthiaume’s probation was revoked, leaving the children with Nieto, who also has a drinking

problem. Berthiaume plans to get a job immediately upon his release and believes that he can get

a house arranged shortly after his release. However, his stated plans were somewhat vague as to how

he would be able to afford housing, utilities, and necessities for the children when he had trouble

providing such items before being sent to jail. When the children were taken into Department care,

T.M.B. was having problems with urinating and defecating on herself, but her condition has

improved since being placed in therapeutic foster care. Both children have improved in areas like

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manners, hygiene, and social interaction, and several witnesses testified that T.M.B. is learning to

be a child again, rather than feeling like she has to be a parent to her brother. The children are in

need of a stable environment, but at the time of trial Berthiaume was not scheduled to be released

from prison for another year. His mother could not afford to care for the children, a sister could not

care for them because she was going to school, and his brother told the Department that he would

only take the children if he could adopt them. Although Berthiaume testified that once released, his

behavior would be different and he would be able to support the children, the jury was not obligated

to believe him and was entitled to look to his past behavior in making its determination. Department

witnesses, including the children’s guardian ad litem, testified that they believed it was in the

children’s best interest for Berthiaume’s rights to be terminated and for the children to be adopted

together. In spite of the fact that the children love their father, based on this record, we cannot hold

that the evidence is legally or factually insufficient to support the jury’s finding that termination was

in the children’s best interest. We overrule Berthiaume’s issue on appeal and affirm the trial court’s

order of termination.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: August 31, 2004



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