Case Information
*1 Fourth Court of Appeals San Antonio, Texas
OPINION
No. 04-13-00665-CV IN THE INTEREST OF R.S.D. , a Child From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2012-PA-00894
Honorable Paul Canales, Judge Presiding [1] Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: September 3, 2014
AFFIRMED IN PART; REVERSED IN PART AND RENDERED
The trial court terminated appellant’s parental rights on the grounds that appellant constructively abandoned her child; failed to comply with a court order that specifically established the actions necessary for her to obtain the child’s return; and knowingly engaged in criminal conduct that resulted in her conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of the filing of the petition. [2] T EX . F AM . C ODE A NN . § 161.001(1)(N), (O), (Q) (West 2014). The trial court also found that termination was in the child’s best interest. Id . § 161.00(2). In this accelerated appeal from the
trial court’s termination order, appellant challenges the legal and factual sufficiency of the evidence in support of the trial court’s findings, and she asserts she did not receive effective assistance of counsel at trial. Because we conclude there is insufficient evidence to support the trial court’s best interest finding as to appellant, we address only that issue on appeal.
BACKGROUND
The child was taken into care in April 2012, appellant was incarcerated for possession of a controlled substance in April 2012, and, as of the time of trial in June 2013, had not seen her child for more than a year because she was incarcerated. Leticia Gutierrez, the Department of Family and Protective Services’ caseworker, testified appellant had not completed all of her service plan, but appellant had completed parenting classes, was attending narcotics anonymous (“NA”) meetings, was going to start a domestic violence class, and maintained contact with the Department. Appellant also tested for a GED high school equivalency diploma, but Gutierrez did not have those results. Gutierrez said some of the uncompleted services were available to appellant while she was incarcerated, but she did not otherwise elaborate. Appellant’s projected release date was 2016, although she might be eligible for parole sooner. Gutierrez said appellant was incarcerated sometime in April 2012, that she (Gutierrez) had been assigned the case sometime in March 2013, and since that time, appellant had not visited with her child. However, Gutierrez thought appellant visited with her child at the beginning of the case, but could not remember how many times.
Gutierrez said the child, who was almost four years old at the time of the termination hearing, is developing slowly, needs a lot of redirection from the caregiver, is in speech therapy, has a learning disorder, and has been diagnosed with ADHD. Gutierrez had no opinion on whether appellant might be a danger to the child; however, appellant admitted using cocaine at the beginning of the case [apparently the day before the Department’s home visit]. Gutierrez stated the Department was asking that appellant’s parental rights be terminated because appellant had not completed all of her service plan and she was going to be incarcerated for two or more years. Gutierrez said termination was in the child’s best interest because he needed a permanent home and his paternal aunt in California was willing to adopt him.
Next, appellant testified by telephone. Appellant admitted she used cocaine, but stated she did not have a substance abuse problem because she “had snorted a lighter cocaine that might mean [she] was overstressed.” Appellant admitted she was wrong and said she could change in the future. She said she was incarcerated after her probation was revoked on a prostitution charge that was later dismissed. As for her parole, she said she was not granted parole at her last review, but she was up for review again in two months. Appellant said she does not know who her caseworker is because they keep changing and not informing her of the new caseworker’s name. She has finished her parenting class and domestic violence class, and attends NA classes monthly. She also undergoes counseling.
Appellant testified that when she was first incarcerated, she was in county jail and in the “MATCH” program that would have allowed her visits with her son, but she was not allowed visits despite trying “everything in [her] power to have visitation with [her] son.” She is also in a program called Supporting Books that allows her to read a story to her son on tape and then send him the tape recording. She said she did not know if her son received the tapes because she had received no response from her caseworker since February. She said she has almost completed her GED, lacking only the math portion of the program.
Appellant testified that if she is paroled, she will live with her aunt who has a stable home in Odessa, Texas. As for employment, appellant is on disability. Appellant said that if her rights are terminated, she was “comfortable” with the child being with the paternal relatives. However, she hoped the court would allow her to maintain her parental rights and be the mother she knows she can be for her son.
Finally, the child’s father testified, and he asked the court to accept his relinquishment as the sole basis for the termination of his parental rights. He believed placing his son with the aunt in California was in the child’s best interest, but he did not explain why.
BEST INTEREST OF THE CHILD
On appeal, appellant challenges the sufficiency of the evidence in support of the trial court’s best interest finding, and she contends the Department’s main argument was that the child needed to move forward with permanency.
A trial court may order termination of the parent-child relationship only if the court finds
by clear and convincing evidence one or more statutory grounds for termination and that
termination is in the child’s best interest.
Id.
§ 161.001(1), (2); § 161.206(a);
In re J.F.C.
, 96
S.W.3d 256, 263 (Tex. 2002). “‘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.” T EX . F AM . C ODE § 101.007. We review the sufficiency
of the evidence to support the termination of parental rights under the well-established standards
for legal and factual sufficiency of the evidence.
See In re J.F.C.
,
Also, evidence that proves one or more statutory grounds for termination may constitute
evidence illustrating that termination is in the child’s best interest.
In re C.H.
,
With the Holley factors and these rules in mind, we review the evidence. Department’s petition cannot support the termination order. Accordingly, we are limited to reviewing only the evidence admitted at the termination hearing.
A. Desires of the Child, and the Emotional and Physical Needs of the Child Now and In
the Future
The child is too young to have stated his desires; however, his emotional and physical needs now and in the future were established through Gutierrez’s testimony that the child is developing slowly, needs a lot of redirection from his caregiver, is in speech therapy, has a learning disorder, and has been diagnosed with ADHD. The Emotional and Physical Danger to the Child Now and In the Future
B.
There is no evidence in the record of any emotional or physical danger to the child now or in the future because Gutierrez said she had no opinion on whether appellant might be a danger to the child.
C. Parental Abilities of the Individuals Seeking Custody, Programs Available to Assist
These Individuals to Promote the Best Interest of the Child, Plans for the Child by
the Individuals Seeking Custody, and Stability of the Home or Proposed Placement
Although the child’s father believed placing his son with his paternal aunt in California
was in the child’s best interest, and Gutierrez opined that termination was in the child’s best interest
because he needed a permanent home and his paternal aunt in California was willing to adopt him,
nothing is known about the aunt or her home in California. Therefore, there is no evidence about
the aunt’s parental abilities, regarding the programs available to assist the aunt to promote the best
interest of the child, the plans for the child by the aunt seeking custody, or the stability of the aunt’s
home.
See In re A.H.
,
D. Acts or Omissions of the Parent That May Indicate the Existing Parent-Child
Relationship is Not a Proper One, and Any Excuse for the Acts or Omissions of the Parent
The final Holley factors focus on the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and on any excuse for the acts or omissions of the parent. Other than the fact that appellant was incarcerated at the time of trial, with a projected release date in 2016 and the possibility of parole sooner, no other evidence was offered on whether appellant’s relationship with her child was not a proper one. Other than the single admission by appellant that she used cocaine, no other evidence of any excuse for her acts or omissions was offered. And, appellant admitted she was wrong to use cocaine.
E. One or More Statutory Grounds for Termination as Evidence Illustrating that
Termination is in the Child’s Best Interest
As noted above, the same evidence may be probative of both section 161.001(1) grounds
and best interest, although such evidence does not relieve the State of its burden to prove best
interest.
In re C.H.
,
The record reveals no past criminal history other than her current criminal conviction for possession of a controlled substance and the alleged prostitution charge that was dismissed. Also, “although we acknowledge the trial court is the sole judge of a witness’s credibility, we may not disregard evidence that does not support the trial court’s best interest finding.” In re E.D. , 419 S.W.3d 615, 619 (Tex. App.—San Antonio 2013, pet. denied). While incarcerated, appellant finished her parenting class and domestic violence class, and attended NA classes monthly and underwent counseling. Appellant was in the “MATCH” program that would have allowed her visits with her son, and she is in a program called Supporting Books that allows her to read a story to her son on tape and then send him the tape recording. She has almost completed her GED, lacking only the math portion of the program. Gutierrez said some of the uncompleted services were available to appellant while she was incarcerated, but Gutierrez did not otherwise elaborate.
CONCLUSION
After reviewing all the evidence in the record, we conclude the State did not meet its burden
to establish by clear and convincing evidence that termination of appellant’s parental rights is in
the child’s best interest. Therefore, we reverse that portion of the trial court’s judgment
terminating appellant’s parental rights and render judgment denying the State’s petition for
termination of appellant’s parental rights. We affirm that portion of the trial court’s judgment
terminating the child’s father’s parental rights. Because appellant’s challenge to the Department’s
Family Code section 153.131 conservatorship was not subsumed within her appeal of the
termination order and was not challenged on appeal, we also affirm the trial court’s appointment
of the Department as the managing conservator of the child pursuant to section 153.131.
See In
re J.A.J.
,
Sandee Bryan Marion, Justice challenging appointment of Department as conservator under section 153.131 because such a challenge is not subsumed within the parent’s challenge to the termination order).
Notes
[1] Sitting by assignment.
[2] The trial court also terminated appellant’s parental rights on the grounds that she executed an unrevoked or irrevocable affidavit of relinquishment of parental rights. However, the record reveals that only the child’s father signed an affidavit of relinquishment.
[3] In the same termination order, the trial court also terminated the parental rights of the child’s father. The father did not appeal the order.
[4] We note that the State asked the trial court to take judicial notice of its files; however, the trial court did not rule on
the request. “A trial court may take judicial notice of its own records in matters that are generally known, easily
proven, and not reasonably disputed.”
In re J.E.H.
,
[5] When the Department is appointed as managing conservator solely as a consequence of the trial court’s termination
order, a parent’s challenge to the Department’s conservatorship appointment is automatically subsumed within the
parent’s appeal of the termination order, and a separate issue on appeal challenging the Department’s conservatorship
is not required.
See
T EX . F AM . C ODE § 161.207(a) (West 2014) (requiring trial court to appoint managing conservator
when it terminates parental rights);
In re D.N.C.
,