

 


 

NUMBER 13-09-00368-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

IN THE INTEREST OF R.S., R.S. Jr., C.S., B.S., AND A.S., CHILDREN



On appeal from the County Court at Law No. 5

				   of Nueces County, Texas.
 

MEMORANDUM OPINION


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

 	Following a bench trial, the trial court signed judgments terminating the parental
rights of appellant, Jane, (1) the mother of R.S., R.S. Jr., C.S., B.S., and A.S. (2)  In this
accelerated appeal, Jane challenges the legal and factual sufficiency of the trial court's
finding that termination of her parental rights is in the childrens' best interest.  See Tex.
Fam. Code Ann. § 161.001(2) (Vernon Supp. 2009).  We affirm.
I. Background
	In December 2006, appellee, the Texas Department of Family and Protective
Services ("the Department"), became involved with Jane's children when a report alleging
physical neglect and neglectful supervision of R.S., R.S. Jr., C.S., and B.S. was filed.  The
Department received a second referral in January 2007, when A.S. tested positive for
cocaine at birth.  After further investigation, the Department asked Jane to voluntarily place
the children with B.G., the children's maternal grandmother, and offered Jane family-based
services. (3) 
	After Jane complied with some of the services, the Department allowed the children
to return to her care.  On October 15, 2007, third and fourth referrals that alleged the
physical and medical neglect of R.S. and R.S. Jr. were filed with the Department.  Jane
subsequently tested positive for cocaine, and the Department filed suit to terminate her
parental rights.  The children were temporarily placed with a foster family until January
2008, when they were again placed with B.G.  After B.G. suffered a heart attack in August
2008, the children were removed and placed with a foster family.  
	In April 2009, following a bench trial, the trial court signed an order terminating
Jane's parental rights with respect to the children.  This accelerated appeal ensued.  See
Tex. Fam. Code Ann. § 109.002 (Vernon 2008); Tex. R. App. P. 28.1.
III. Best Interest
	In her sole issue, Jane challenges the legal and factually sufficiency of the trial
court's finding that termination of her parental rights is in the children's best interest. See
Tex. Fam. Code Ann. § 161.001(2).  
A.	Standard of Review
	To terminate parental rights, a trial court must find by clear and convincing evidence
that the parent committed an act prohibited by section 161.001(1) of the family code and
that termination is in the best interest of the child. (4) See id. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005).  "Clear and convincing evidence" 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
(Vernon 2008).  This intermediate standard falls between the preponderance of the
evidence standard of civil proceedings and the reasonable doubt standard of criminal
proceedings.  In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83
(Tex. App.-Fort Worth 2006, pet. denied). 
	In reviewing the legal sufficiency of the evidence supporting parental termination,
we must "look 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 its
finding was true."  In re J.L., 163 S.W.3d at 85.  We assume that the fact finder resolved
any disputed facts in favor of its finding if a reasonable fact finder could have done so, and
we disregard all evidence that a reasonable fact finder could have disbelieved.  Id. 
However, we must also consider undisputed evidence, if any, that does not support the
finding.  Id. at 86.
	In reviewing the evidence for factual sufficiency in parental termination cases, we
must give due deference to the fact finder's findings and not supplant its judgment with our
own.  In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).  We must determine whether, on the
entire record, a fact finder could reasonably form a firm conviction or belief that the
termination of the parent-child relationship would be in the best interest of the child.  See
Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).  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 reasonably have formed
a firm belief or conviction in the truth of its finding, then the evidence is factually
insufficient.  In re H.R.M., 209 S.W.3d at 108.
B.	Applicable Law
	When determining whether termination is in a child's best interest, the following list
of factors should be considered:  (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 parenting abilities of the parties seeking custody; (5) the
programs available to assist the parties seeking custody; (6) the plans for the child by the
parties seeking custody; (7) the stability of the home or proposed placement; (8) the acts
or omissions committed by the parent which may indicate that the existing parent-child
relationship is not proper; and (9) any excuse for the acts or omissions committed by the
parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  These factors are not
exhaustive, and there is no requirement that the Department prove all factors as a
condition precedent to parental termination.  In re C.H., 89 S.W.3d at 27.  In some cases,
undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the best interest of the child.  Id.  Furthermore, when the department or
another government agency is the petitioner, subsection 263.307(b) of the Texas Family
Code lists thirteen factors that the court should consider in determining whether a parent
is "willing and able to provide the child with a safe environment." (5) See Tex. Fam. Code
Ann. § 263.307(b) (Vernon 2008).  In our review of the trial court's termination order, we
will likewise give consideration to these factors to the extent applicable.  See In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re S.N., 272 S.W.3d 45, 50-51 (Tex.
App.-Waco 2008, no pet.); see also In re H.M.P., No. 13-08-00643-CV, 2010 WL 40124,
at *13 (Tex. App.-Corpus Christi Jan. 7, 2010, no pet. h.) (mem. op.) (considering the
Holley factors as well as the factors listed in subsection 263.307(b) in determining whether
termination was in the child's best interest).
C.	Analysis
 1.	Desires of the children
	Kristen Pavelka, the Department caseworker assigned to Jane's case, testified that
since the children have moved in with their foster family, Jane has appeared for only one
scheduled visit.  Pavelka stated that during the visit, "[t]he children were happy to see
[Jane]."  Pavelka also testified that although the children have stated that they miss Jane
and "love her very much," R.S. and R.S. Jr. have stated that they understand that with their
foster parents they are "safe and . . . clean" and that their needs are being met.  
	2.	Present and future physical and emotional needs of the children;
present and future emotional and physical danger to the children; the
acts or omissions of the parent which may indicate that the existing
parent-child relationship is not proper; excuse for the acts or
omissions committed by the parent

	"[A] fact finder may infer that past conduct endangering the well being of a child may
recur in the future if the child is returned to the parent."  Williams v. Williams, 150 S.W.3d
436, 451 (Tex. App.-Austin 2004, pet. denied) (citing In re D.L.N., 958 S.W.2d 934, 941
(Tex. App.-Waco 1997, pet. denied), disapproved on other grounds by In re J.F.C., 96
S.W.3d 256, 267 (Tex. 2002) and In re C.H., 89 S.W.3d at 26); see also In re E.A., No. 13-06-503-CV, 2007 WL 2471459, at *8 (Tex. App.-Corpus Christi Aug. 31, 2007, no pet.)
(mem. op.) (holding that where "the Department presented evidence establishing
appellant's history of unstable housing, unstable employment, unstable relationships,
mental health issues, and drug usage," the trial court "could have inferred that the risk
factors would continue to be present thus endangering the children's well-being in the
future if the children are returned to appellant").
	In December 2006, the Department received a report that alleged physical neglect,
neglectful supervision, and drug use by Jane.  Upon receipt of the report, Diana Villarreal,
an investigator for the Department, met with R.S. and R.S. Jr.  Upon meeting with the
children, Villarreal noticed that the children had a "severe lice problem," a "foul odor," and
"a problem with their dental hygiene."  Villarreal testified that R.S. and R.S. Jr. told her that
they could not remember the last time they had showered and that "the only person that
had a toothbrush was the father."  Following Villarreal's meeting with the children, Jane
submitted to a drug test and tested positive for cocaine.
	In January 2007, the Department received another referral pertaining to Jane when
A.S. tested positive for cocaine at birth.  Instead of removing the children from Jane and
taking them into custody, the Department opened a family-based services case, and Jane
voluntarily placed the children with her mother.  Villarreal testified that Jane complied with
some of the services and that the children were returned to her care.  
	Rosemary Puerto, the nurse at R.S. and R.S. Jr.'s elementary school, testified that
the children attended her school from January 2007 until December 2007.  Puerto testified
that R.S. and R.S. Jr. often arrived late to school and came to her office where she fed
them breakfast.  Puerto stated that the children's immunization records were not up-to-date
and that the children had "very, very bad hygiene," were not bathed regularly, and always
wore dirty clothes.  Puetro also testified that R.S.'s lice problem was "very severe" and that
"you would literally see them [lice] crawling, you know, the little bugs coming out of her
hair."  
	Thelma Caesar, the director of a daycare attended by all five children, also testified
about the children's poor hygiene.  She stated that the children had head lice and that the
problem was "more severe" than a typical lice problem.  Caesar also stated that when C.S.
took off his shoes "the odor was so bad" that "[t]he first time, I didn't even know what it was
and then the children said it was his socks that was [sic] smelling."  Caesar further testified
that A.S. had diaper rash, blisters on her bottom, and "was not fresh."  The daycare staff
"would take the wippies [sic] . . . and wipe [A.S.] down each day because of the--of her not
being clean."
	Loerna Huerta, an investigator for the Department, testified that in October 2007,
the Department received a third and fourth referral.  The third referral alleged that R.S. had
lice and open sores on her head from the lice.  The fourth referral stated that R.S. had a
"severe case of head lice" and that Jane had done nothing to treat it.  The fourth referral
also stated that R.S. Jr. "had a deformity on his head."  Huerta testified that she visited
R.S. and R.S. Jr. the day the Department received the referrals.  Huerta stated that she
observed open sores, dried blood, lice, and lice eggs on R.S.'s head.  She also noticed a
bump on R.S. Jr.'s head, and the children told her that they sometimes went to bed hungry. 
	After meeting with the children, Huerta went to the home that the children shared
with Jane and their father.  Huerta spoke to the father and, apparently knowing that the
family had recently received food stamps, asked why there was no food in the home.  The
father told Huerta that there was no food because "the kids ate a lot."  Huerta testified that
the house was "a little bit filthy" and "needed to be cleaned up."  The children were
removed from the home in November 2007, when Jane again tested positive for cocaine.
	Pavelka testified that, at the time of trial, all five children were living together with
a foster family and "appear[ed] to be doing great."  Pavelka testified that the children were
safe and all of their scholastic and medical needs were being met.  Pavelka opined that
termination of Jane's parental rights would likely be devastating to R.S., R.S. Jr., and C.S.,
but that B.S. and A.S. "ha[d] adjusted well emotionally to their situation because they [are]
so young."
	Jane testified that she attempted to treat R.S.'s lice and that her children did not go
to school dirty and hungry.  Jane testified that she completed parenting classes but was
unable to attend or complete any other type of counseling because of scheduling
problems.  Although Jane admits that she has used cocaine, she does not feel that she
has a drug problem.  Jane also testified that she did not complete the services because
she "didn't feel like [she] needed to go to counseling or to--to the drug assessments or
anything like that."  Moreover, Jane testified that her contact with her children since their
placement in foster care has been minimal because of transportation problems.
	On appeal, Jane argues that she is a young mother who "made some mistakes" but
"has taken steps to make her life better for both herself and for her children."  However,
evidence presented at trial revealed that Jane failed to comply with the court-ordered
service plan and continued to use drugs.  Pavelka testified that in January 2008, the trial
court adopted a family-service plan, whereby Jane was supposed to participate in
individual and family counseling as well as parenting classes.  Testimony revealed that
Jane was referred to the Texas Council on Alcohol and Drug Abuse ("TCADA") and
recommended for substance abuse treatment for marihuana.  A permanency plan report
filed in May 2008, states that Jane had not completed a drug assessment, a psychological
exam, or individual counseling.  A January 2009 permanency plan report states that
although Jane completed parenting classes, she failed to implement what she learned.
	Furthermore, Pavelka testified that prior to the removal of the children, Jane was
drug tested five times and tested positive four times.  After removal, Jane was drug tested
eighteen times, tested positive eight times, and missed or refused to submit four times. 
In January 2009, Jane tested positive for cocaine, and in February 2009, approximately
one month before the bench trial, Jane tested positive for hydrocodone, a controlled
substance for which she presented no prescription.  Jane does not challenge the accuracy
of the drug test results and maintains that she was only a casual user.
	3.	Parental abilities of the person seeking custody; available assistance
programs

	Jane argues that she is able to care for her children because she has a home in
which she has resided the past six months and has maintained her current job for eight
months.  However, Pavelka testified that Jane has lived in approximately six different
residences since November 2007.  Pavelka also testified that she attempted to visit Jane's
current residence but that Jane's boyfriend would not allow her to enter the home.  Pavelka
stated that domestic violence was a concern when she visited Jane's residence.  Although
she was unable to visit the interior of Jane's current home, Pavelka stated that, over the
past year, she has been able to visit other homes that Jane resided in and that the homes
contained very little furniture and were "not the cleanest."  
	Pavelka testified that in November 2007, Jane and her family created a service plan
that offered individual and family counseling, a psychological evaluation, referral to TCADA
for a drug assessment, and parenting classes.  The court adopted the service plan in
January 2008.  Testimony revealed that Jane attended two counseling sessions,
participated in a drug assessment, and completed parenting classes.  After attending two
counseling sessions, Jane "no-showed" for two classes and then failed to return.  The
January 23, 2009 permanency plan report states that Jane has not demonstrated that she
benefitted from the counseling sessions.  Testimony also reveals that although Jane
participated in a drug assessment, she failed to attend the recommended drug counseling. 
Moreover, although Jane completed parenting classes, the January 23, 2009 permanency
plan report states that she has failed to implement what she learned.  Thus, although more
than a year has passed, Jane has failed to fully comply with these court-ordered services. 
	4.	Plans for the children by those individuals or by the agency seeking
custody; stability of the home or proposed placement

	On appeal, Jane argues that her parental rights should not be terminated because
B.G., the children's grandmother, "is still a viable option to take care of her five
grandchildren, and she is still available to assist [Jane] in taking care of her five children." 
Although the Department placed the children with B.G. from January 2008 until August
2008, B.G. informed the Department, in May 2008, that she could not handle all five
children.  Therefore in October 2008, the Department placed all five children with a foster
family.  Pavelka testified, at the time of trial, that Garcia was no longer a viable placement
option, and that despite a diligent search, the Department had not been able to secure
another relative placement.  
	Pavelka testified that since being placed with the foster family, the children have not
had lice, A.S. has been potty trained and has learned to walk, B.S. has begun to talk "a lot
more," C.S. has "really com[e] into his own," and R.S. and R.S. Jr. have performed well in
school.  The permanency plan is for unrelated adoption.  Pavelka testified that the
permanency plan was developed due to Jane's inability to maintain a stable living
environment, concerns regarding domestic violence in Jane's current relationship, and
continual positive drug test results.
	Although parental rights are of constitutional magnitude, they are not absolute.  In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002).  "Just as it is imperative for courts to recognize the
constitutional underpinnings of the parent-child relationship, it is also essential that
emotional and physical interests of the child not be sacrificed merely to preserve that right." 
Id.  Viewing the evidence in the light most favorable to the findings, we conclude that a
reasonable fact finder could have formed a firm belief that termination of Jane's parental
rights was in the childrens' best interest.  See In re J.L., 163 S.W.3d at 85.  Furthermore,
we conclude that the evidence was factually sufficient because the disputed evidence
contrary to the findings was not so significant that the trial court could not have formed
such a firm conviction or belief.  See In re H.R.M., 209 S.W.3d at 108.  Accordingly, Jane's
sole issue is overruled.
IV. Conclusion
	The judgment of the trial court is affirmed.

   ROGELIO VALDEZ,
							Chief Justice

Delivered and filed the
11th day of March, 2010.






1.  To protect the mother's and children's privacy, we refer to the mother as Jane, a fictitious name, and
the children by their initials.  See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008); Tex. R. App. P. 9.8(b)(2).
2.  The trial court also terminated the parental rights of the children's alleged father as well as any
unknown fathers.  However, they are not parties to the appeal.
3.  Testimony during the bench trial defined "family-based services" as a means of providing the parent
with services such as parenting classes and substance abuse counseling.
4.  The trial court based termination of Jane's parental rights on the following findings:  (1) she
knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered
the physical or emotional well-being of the children; (2) she engaged in conduct or knowingly placed the
children with persons who engaged in conduct which endangered the physical or emotional well-being of the
children; (3) she failed to comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children; (4) she constructively abandoned the children; (5) she
used a controlled substance in a manner that endangered the health or safety of the children and failed to
complete a court-ordered treatment program, or after completion of a program, continued to use a controlled
substance; and (6) termination of the parent-child relationship is in the childrens' best interest.  See Tex. Fam.
Code Ann. § 161.001(1)(D)-(E), (1)(N)-(P), (2) (Vernon Supp. 2009).  On appeal, Jane challenges only the
best interest finding.  See id. § 161.001(2).
5.  The factors enumerated in section 263.307(b) include, among others, the following:

(1) the child's age and physical and mental vulnerabilities;

	. . . .

(3) the magnitude, frequency, and circumstances of the harm to the child;

(4) whether the child has been the victim of repeated harm after the initial report and
intervention by the department or other agency;

	. . . .

(8) whether there is a history of substance abuse by the child's family or others who have
access to the child's home;

	. . . .

(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 . . . .

Tex. Fam. Code Ann. § 263.307(b) (Vernon 2008).
