In the Interest of J.L.B. and J.R.B., Children.
No. 06-11-00019-CV
Court of Appeals of Texas, Texarkana.
Decided Sept. 2, 2011.
Submitted Aug. 10, 2011.
We turn finally to Casey‘s argument that the trial court erred in not granting his motion for new trial because “the continued presence of members of Bikers Against Child Abuse in the courtroom throughout the trial was prejudicial.” As far as we can discern from the record, Casey first complained about this matter in his motion in arrest of judgment, which he filed after the jury had returned its verdict on guilt but before the trial court assessed punishment. On this record, then, the trial court could have properly overruled the complaint as untimely.
Having found no error, we also find no cumulative error, and we overrule Casey‘s fifth issue.
CONCLUSION
We affirm the judgments of the trial court.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice MOSELEY.
This is a joint appeal by the mother and father of two children, Samuel and Joshua,1 of a judgment of the termination of their parental rights to those children. The trial court gave the same three reasons as the bases for terminating each parent‘s rights. The trial court found that both parents
knowingly placed or knowingly allowed the [children] to remain in conditions or surroundings which endanger the physical or emotional well-being of the [children];2
engaged in conduct or knowingly placed the [children] with persons who engaged in conduct which endangers the physical or emotional well-being of the [children];3
had [their] parent-child relationship terminated with respect to another child based on a finding that [the parents‘] conduct was in violation of
§ 161.001(1)(D) or (E), Texas Family Code, or substantially equivalent provisions of the law of another state.4
The trial court also found that it was in the best interest of the children that the parental relationship be terminated.
Lew Dunn, Law Office of Law Dunn, Longview, for appellant.
Sufficiency of the Evidence
The parents’ first point of error asserts that the evidence is legally insufficient to support the findings by the trial court as recited above. The second point of error contends that the evidence is factually insufficient to support those findings.5
We begin by summarizing the testimony and evidence admitted at trial, generally grouping the evidence into subjects which were ultimately relevant to the trial court‘s rulings. We focus on the following areas: the children‘s past and present circumstances and upbringing, the condition of the family home, the intellectual, emotional, developmental, physical, and educational status of the childrеn, and the mother‘s and father‘s past and present status as it affects their ability to parent the children.
Background and Living Conditions
Samuel (born in January 2005) and Joshua (born in January 2007) first came to the attention of the Child Protective Services Division of the Texas Department of Family and Protective Services (CPS) when a law enforcement officer stopped a speeding vehicle driven by Russell McCurry, a friend of the boys’ parents. Samuel and Joseph were in the back seat of the car and at that time, Joshua was naked and wrapped in a blanket while Samuel was dressed in a jumpsuit. The deputy sheriff who stopped the vehicle said Samuel‘s jumpsuit was “filthy” and the boy had defecated in his pants. Both boys smelled as if neither had been bathed in days. McCurry testified that Joshua was wrapped in the blanket because he had also defecated in his pants, causing McCurry to throw the child‘s clothes away. At the time of the stop, Samuel was five years old and Joshua was three, but neither was potty trained.6 Officers took the boys to the police station, where they were cleaned up. CPS representatives went to the parents’ home to investigate and the investigation revealed numerous unsafe and filthy conditions, discussed below.
McCurry testified he had taken the boys, with the acquiescence of the parents, to panhandle (i.e., to beg for money) from people in stores and parking lots. Although McCurry equivocated somewhat in his testimony,7 it was clear that he had
Based on testimony from Detective Falco and the deputy who conducted the traffic stop of McCurry, it appears the parents may have reported the children as having been kidnapped. However, since the parents had waited until after the boys had been gone for at least a day before reporting their absence and due to inconsistencies in the story the parents related, the authorities treated their news as a missing persons report and not as a kidnapping.9
The State presented several witnesses who had visited the family home and testified as to its condition. The State‘s contact with the home begаn on or around the day the children were found in McCurry‘s charge. In general, the testimony and pictures admitted into evidence described a dwelling which could be described most charitably as a cluttered mess and, more realistically, as an unsanitary, unsafe fire hazard. (As if confirming the observations about the unsafe condition of the house, it burned to the ground within a few months after the boys’ removal by CPS.)
Several witnesses testified to an unpleasant odor coming from the family‘s home. Specifically, Verdell Burton10 described the smell as a “foul odor” from urine and testified that on one of her visits
CPS investigator Clough likewise described a “very foul odor” emanating from the house.11 Clough had first gone to the family home after the boys had been discovered in McCurry‘s automobile, the purpose of her visit being to investigate the conditions at the home and to make contact with the boys’ parents. Clough was present at the house when the police brought the boys home after having been removed from McCurry‘s automobile. At that time, the boys were still wrapped in blankets because the police had washed the boys’ clothes and they were not yet dry. Although the parents were not at the house when Clough arrived, she was met by the boys’ paternal grandmother, who also lived in the house. After Clough asked the grandmother, who had significant vision problems, to locate clothing for the boys, the grandmother took a pair of shorts and a T-shirt (neither of which was clean) frоm one of many piles of clothes in the house, handing the shorts to Samuel and the T-shirt to Joshua. Samuel donned the shorts, sans any underwear, and Joshua put on the T-shirt, backwards. Clough considered the clothing inappropriate because although it was warm in the house, the outside temperature was quite cool. She was also concerned about sharp, torn edges of the linoleum floor which pointed up, and spider webs on windows.
When Clough asked the grandmother about the smell which permeated the house, the grandmother responded that “the house needed to be tidied up a bit.” Clough found this to be something of a monumental understatement, observing piles of trash and clothes throughout the house,12 “old food, soiled pots” on the kitchen table, and “pots on the floors of the kitchen with old food in them.” Clough said although the chairs around the kitchen table were all broken, their condition did not prevent Joshua from climbing up the chairs onto the cabinets “as if he were playing a game.” Despite the fact that the kitchen sink was full of dirty dishes, it did not appear to be functional because “it was broken and actually leaning to the side.” Clough discovered that the refrigerator contained rodent droppings, but no edible food.13 Her description of the area continued:
There were tons of pots, old food, there was trash underneath the refrigerator. And when I refer to trash, it is actually a combination of clothing, paper goods, metal goods, forks and spoons, just appeared to be a kind of a catch all.
Clough was also concerned to find one of the burners on the stove was lit and burning. Clough feared the children, with their access to the kitchen, could burn themselves. The stove‘s knobs wеre all removed, and the grandmother explained a “special tool” was needed to turn off the
B.J. Owens, city code enforcement officer for the City of Kilgore, testified that he had made several investigations of the house since 2005, issuing thirteen or fourteen citations for hazardous conditions (e.g., various junk and debris on the exterior and problems with rodent and mosquito harborage on the premises). He observed that in May 2010, the house had no running water.14 At some point, the house was formally condemned. Owens said he was not surprised that the house had burned, as he had seen several fire hazards in his inspections and said,
Well, during an inspection, I walk in, there‘s piles of trash with propane heaters sitting beside them, candles sitting beside them. Some of the photographs15 show extension cords running over—running over paper and trash, and it‘s just—it‘s like I had told [the mother], you know, it‘s dangerous to have that kind of open flame—Coleman lanterns laying on top of a dresser that has piles of clothes and trash that‘s piled up on there, dogs running around the house with extension cords pulled out everywhere. So there were plenty of things that would kind of give you pause or give me pause and say, “Look, you need to clean this up. You need to clean this up.”
Although Owens stated the appellants had made some repairs and done some cleaning, he did not believe the home was safe for a family. Clough also said she did not feel the children were safe in the home, which led to her decision to remove them to CPS custody.
At the time of the trial, the parents had relocated to a different house, a different one from the one they had inhabited at the time of the boys’ removal. CPS investigator Natalie Wash visited this second home and, after observing it, still harbored a number of concerns. In the more recent abode, the dogs seemed “dirty” and there was a fish tank which did not seem clean. There was a plate of dog food on a table next to the couch which would have been in rеach of children; Wash observed cords hanging off a cabinet which held figurines. Wash was concerned that in her visits to this more recent home over the course of a few months, the amount of clutter consistently increased with the duration of the parents’ occupancy. The house did not exhibit what Wash would consider “minimum standards of being clean.” An animal control officer testified that he found several pieces of “hours old” dog feces in the grandmother‘s bedroom and a shed where puppies were being kept had a “pretty bad situation of feces.” The officer testified the conditions were unsanitary.
Condition of the Children
Mary Beth Gaddy, a special education teacher, taught Joshua for about two months before CPS became involved and the children were removed from the appellants’ home. Gaddy said that Joshua was
Gaddy evaluated Joshua about a month before his third birthday, finding his development to be well below normal. Although the child was almost 36 months of age, Joshua‘s cognitive skills were in the normal range of a child aged 6 to 16 months old, language skills in the 6- to 17-month range, gross motor skills in the 11- to 27-month range, fine motor skills within the 16- to 32-month range, the self-care skills within the 10- to 15-month range, and social skills within the 5- to 14-month range. Gaddy was also very concerned with Joshua‘s appearance because he smelled bad and was consistеntly unclean, sometimes with dried food on his clothes. She worried about this not only for hygienic reasons, but because she feared that other children would tease or ostracize him, further impeding his personal development. Gaddy visited the family home, once even providing soap, towels, and detergent and talking with the mother about her responsibility to clean the boys. Although Gaddy only taught Joshua about two months and her delivery of the cleaning items occurred about a month into her contact with the boy and his family, she described the difference in cleanliness after her delivery as “[m]inimal.”
Psychologist Donald Winstead evaluated Samuel. Winstead found the boy‘s intelligence quotient (IQ) to be in the “mentally deficient range.” Samuel exhibited developmental delays in academic achievement scores, in emotional problems, and in his difficulties relating to and dealing with other people. Winstead recommended involvement in extracurricular activities, occupational therapy, and active family involvement. Winstead‘s written evaluation made the following observations:
There was a significant difference between his verbal and nonverbal abilities in a pattern often seen with children who have been raised in an abusive, neglectful and/or chaotic caregiving environment. His overall ability to function in school was rated as very poor. He has notable attention and concentration deficits.
. . . .
The overall quality of his family relationships was rated as below average. His self-esteem was rated as very
. . . .
[Samuel] does not have a history of behavioral problems. However, his overall ability to control his behavior in social situations was rated as poor. He is described as hyperactive and impulsive. He exhibits negative-contrary behavior.
Both children were experiencing developmental delays in their intellectual progress. Joshua, the younger boy, was diagnosed with “a pervasive development disorder.”
The foster mother with whom the boys were placed testified the boys were evidently not experienced in either bathing or brushing their teeth. In her first attempt at bathing the children, it took two hours for her to coax the boys to the bathtub and calm them enough to be cleaned. The dental care of the boys was apparently nonexistent. Samuel had nine cavities in his teeth, while Joshua had eight; both boys’ teeth were covered with plaque. CPS caseworker Wash related that at least one of the children required some degree of dental surgery, including having caps installed. Samuel required having some teeth removed and a spacer installed. Wash testified that on her initial evaluation, she observed that the boys were very thin and when food was placed before them or they “saw food anywhere in the room wherever they were, they would immediately run to the food and shove it in their mouth[s] as quickly as they could.”
Even after about five weeks after the boys were removed from their parents’ care, both boys tested positive for cocaine in their systems. Cindy Beck, a chemical dependency counselor, said it was possible that if cocaine residue was on a surface in the home, a small child of thе age of three to five could touch that residue, put his fingers in his mouth, and thereby ingest the cocaine into his system.
The Parents
Psychologist Winstead evaluated the parents and described both of them as having cognitive functioning in the “borderline range of intelligence.” At this mental level, such persons “are capable of normal functioning, they have a job, drive a car, raise kids, those types of things.” Winstead diagnosed the mother as suffering from post-traumatic stress disorder (PTSD) stemming from her abusive and neglected childhood. She acknowledged to Winstead she had been neglected and physically and sexually abused17 as a child, and Winstead opined that people with such a history are at increased risk of visiting this same kind of mistreatment upon their own children. He found her to suffer from attachment disorder, a condition which prevented her from rеgulating her own emotions and being able to properly attach or relate to children. Winstead held the opinion that the PTSD from which she suffered could prevent the mother from dealing with her own anger or depressive feelings, a circumstance which could then cause traumatic instances with children. Winstead made the following recommendation of treatment for the mother:
Winstead recommended two to five years of at least weekly counseling for the mother. In his written evaluation, Winstead stated the mother possesses characteristics of persons known to abuse children.
Winstead also evaluated the father and found evidence that the father had been abused as a child. Winstead again posited that such a history could lead the father to have the potential to be abusive to children, although he also acknowledged that there was no evidence of any abuse on the father‘s part. The father exhibited traits of low level depression and schizoaffective symptoms, such as delusional thinking, something consistent with reports that the father had claimed to see and hear spirits. Winstead‘s written evaluation noted that the father has auditory hallucinations and believed that he has seen ghosts in his house.18 A pertinent observation in the written report is the following:
[The father] is likely to be threatened by a child‘s normal strivings for a sense of power and independence and likely views a child who expresses a view/opinion that is different from that of his parent‘s view as a form of disrespect. He may expect children to be strictly obedient and may be easily threatened when his parenting is questioned. [The father] is not likely to value negotiation and compromise as a means of solving problems between a parent and a child. [The father] has significant problems with his children. He is likely to describe his children in a negative manner. . . . Overall, he is likely to perceive that his children have limited ability and / or competency.
Also noteworthy in the conclusion of the written evaluation is that Winstead observed that the father displayed symptoms of “Avoidant, Borderline, Dependent, Paranoid, Schizoid, and Schizotypal Personality traits with depressive, sadistic, passive aggressive and self-defeating features.”
Mason also saw and evaluated the parents. Mason testified shе did not think the boys were safe in the parents’ home and did not believe the parents could protect the boys from further abuse or harm. When asked if there was anything that could make the placement with the parents safe for either the boys or for any other children, Mason said she had no “recommendations that would fulfill [that] request.”
Winstead said both parents would need to “work through” their respective psychological and emotional issues “before they would be ready to provide some consistent parenting.” Mason said she believed that both parents would require five to eight years of weekly counseling to be able to care for their children.
Both appellants admitted to CPS investigator Clough they were active users of cocaine and that on the Friday before the boys were found with McCurry, they had purchаsed and used drugs with McCurry. The parents similarly admitted to Detective Falco having used crack cocaine the day before they reported the boys as missing. Clough said that on or about March 15, 2010, both parents tested positive for cocaine use, this date being about a week
In her defense, the mother presented a chemical dependency counselor as a witness in her behalf who said that the mother seemed to have made progress in avoiding illicit drugs and that continued avoidance of those drugs would improve her parenting ability. There was also testimony that the parents had made some repairs to the home and had attended some parenting classes. Wash said they actually completed a service plаn established by CPS, and psychologist Winstead said they attended parenting classes conducted by him. However, counselor Mason testified that although the father attended more than half of the assigned parenting classes which she conducted, he was “eliminated” from the class for failing to attend the required number.
Standard of Review
We now turn to the question of whether the requisite clear and convincing evidence established sufficient proof of the alleged grounds for termination of the appellants’ parental rights.
When legal sufficiency of evidence supporting termination of parental rights is challenged, we 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 the finding was true. Id. at 344-45 (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002)). In this bench trial, we assume that the trial court resolved disputed facts in favor of its finding if a reasonable fact-finder could do so, but disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. J.F.C., 96 S.W.3d at 266.
In reviewing for factual sufficiency, we give due consideration to evidence the court could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 27 (Tex.2002). We are to determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the allegations. Id. at 25. A court of appeals should consider whether disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. 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, then the evidence is factually insufficient. Id.
Sufficient Evidence Supports Two Findings as Grounds for Termination
There was ample evidence to support the finding that the parents knowingly placed or knowingly allowed the children to remain in surroundings that endangered the children‘s physical or emotional well-being.
Likewise, the evidence was factually sufficient. In reviewing factual sufficiency, we consider all of the evidence reviewed under a legal sufficiency review, and give due consideration to evidence the fact-finder could reasonably have fоund 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). Beck, a chemical dependency counselor, testified that she had worked with the mother, who had curtailed her drug use. There was testimony the parents had effected some repairs to the first home before it burned. There was evidence the parents participated in, and completed, some service plans and parenting classes designed or assigned by the State‘s agency. Conceivably, this is evidence that disputes the State‘s evidence that discounts the parents’ ability to carry out the duties of parents. Nonetheless, giving due deference to the trial court‘s factual determination, we find the state of the evidence sufficient that the fact-finder could reasonably form a firm belief or conviction the parents knowingly placed or knowingly allowed the bоys to remain in conditions or surroundings that endangered the boys’ physical or emotional well-being.
There was also clear and convincing evidence that the parents engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children‘s physical or emotional well-being.
A great deal of the evidence cited above also supports termination on this ground. The parents’ frequent use of illegal drugs (including exposure to the extent that the boys actually tested positive for cocaine), their neglect of the children as evidenced by the boys’ lack of cleanliness or personal
The evidence is also factually sufficient to support termination on this allegation. Even with the chemical dependency counselor‘s testimony that the mother had curtailed or ceased her use of illegal drugs, substantial damage had аlready been done: there was evidence of regular drug use by both parents prior to CPS‘s involvement in this case. The trial court could reasonably deduce that such drug use had been present throughout the children‘s lives and that without the agency‘s intervention, the drug abuse would have continued. The same could be said of the use or involvement of the boys in panhandling, even if the fact-finder were to consider they had only been present and not actually used to solicit donations. As for the parents’ statements to law enforcement that they did not give McCurry permission to take the boys on the night or in the hours before they were found, the trial court, as fact-finder, judged the credibility of witnesses and resolved any conflicts in testimony. See In re R.W., 129 S.W.3d 732, 742 (Tex.App.-Fort Worth 2004, pet. denied). “[C]onduct that subjects a child to a life of uncertainty and instability еndangers the physical and emotional well-being of a child. Drug use and its effect on a parent‘s life and his ability to parent may establish an endangering course of conduct.” In re N.S.G., 235 S.W.3d 358, 367-68 (Tex.App.-Texarkana 2007, no pet.).
Best Interests of Children
There is a strong presumption that a child‘s interest is best served by preserving the conservatorship of the parents; however, clear and convincing evidence to the contrary may overcome the presumption. In re R.R., 209 S.W.3d 112, 116 (Tex.2006) (per curiam). In deciding whether termination would be in the best interest of the child, the trial court may consider this nonexclusive list of factors: (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 prоmote 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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); In re K.W., 335 S.W.3d 767, 770 (Tex.App.-Texarkana 2011, no pet.). Also, evidence offered to prove grounds for termination is relevant to determining if the termination is in the best interest of the child. C.H., 89 S.W.3d at 28; In re J.W.M., 153 S.W.3d 541, 548-49 (Tex.App.-Amarillo 2004, pet. denied) (“While the prospect of adoption into a stable home cannot alone be said to be a determinative factor, it clearly is
There are several evidentiary items discussed above which point to termination being in the boys’ best interests. The emotional and physical needs of the children now and in the future would be better served by being with parents more like the foster mother, with whom the boys lived during trial, than with their biological parents. The foster mother described the deteriorated condition of both boys’ teeth when they came under her care and their reticence concerning hygiene. Both boys also need speech therapy and exhibited signs of developmental delay in their intellectual, social, and emotional development. The parents’ demonstrated poor judgment, the constancy of their drug use, their association with McCurry and their having allowed the boys to participate with him in panhandling, and the deplorable condition of the home when CPS first became involved all cut against the parents. CPS caseworkers said the boys needed specialized foster care and were responding very well to the foster care they were receiving at the time of trial. Several of the Holley factors, when applied to the facts of the instant case, point to the children‘s best interests being served by termination of the parents’ parental rights.
We consider the evidence sufficient to support a finding by a clear and convincing evidence standard that the best interests of the children support termination of the parent/child relationship.
Review of Out-of-State Termination Not Necessary
As an additional basis for termination, the State also alleged (and the trial court found) that the appellants’ parental rights to anоther child had been previously terminated in West Virginia for conduct substantially equivalent to
We need not address these complaints, as we have found sufficient evidence to support termination based on
We affirm the judgment of the trial court.
Joan CAPPS, Appellant/Cross-Appellee, v. NEXION HEALTH AT SOUTHWOOD, INC. d/b/a Southwood Nursing and Rehabilitation Center, Appellee/Cross-Appellant.
No. 12-09-00393-CV.
Court of Appeals of Texas, Tyler.
Sept. 7, 2011.