Summary
affirming termination of Mom's rights because, inter alia, "Mother had been [knowingly] living with a registered sex offender and refused to have him leave"
Summary of this case from In re J.E.P.Opinion
No. 05-15-01101-CV
01-22-2016
IN THE INTEREST OF T.A.S. AND C.W.S., CHILDREN
On Appeal from the 59th Judicial District Court Grayson County, Texas
Trial Court Cause No. FA-13-2197
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Myers
Opinion by Justice Francis
This is an appeal from a final decree terminating the parental rights of S.S. (Mother) to her sons, T.A.S. and C.W.S. We affirm.
In December 2013, the Texas Department of Family and Protective Services filed a petition to take possession of T.A.S. and C.W.S., stating there was immediate danger to the physical health or safety of the children. The affidavits of Kristy Bounds and Eryn Tormos detailed how the Department got involved with the family and why it sought the children's removal from Mother's home.
According to Bounds, Mother had six children of varying ages. The Department first responded to a report of physical neglect in 1995; however, those children aged out of the system. Two other children lived out of state with family. The Department opened the case involving T.A.S. and C.W.S. on May 30, 2012, after receiving reports of unsanitary home conditions and medication management issues for both boys. That same day, Bounds met with Mother at the house where ten-year-old C.W.S. and his eleven-year-old brother lived. The parental rights of Kenneth Wesley Smith, the boys' presumed father, had been previously terminated; Mother's boyfriend, James Hardy, lived with the family. Bounds described the house as having food and trash on the floor and roaches climbing the walls. C.W.S. was at home because he had been suspended from school for behavioral problems.
Bounds returned less than two weeks later and discovered the house tidier than before but with an overwhelming smell of animal feces; several animals were living in the house at the time. Bounds reported both boys were receiving therapy and C.W.S., who was diagnosed as bipolar and developmentally delayed with the speech level of a three-year-old, was also receiving speech therapy. Bounds noted that although C.W.S. had severe behavioral problems, he and T.A.S. were being properly medicated at that time.
In July, C.W.S. left home, walking several miles away. When he was found, he said he wanted to kill himself, which resulted in his hospitalization at Glen Oaks Hospital. Shortly after, Bounds made a return visit to Mother and described the house as "extremely unsanitary with flies and roaches present." Mother and Hardy were taken for drug testing, and Hardy tested positive for marijuana. Mother moved out of the house but she returned about the time C.W.S. was released from the hospital in August.
During the fall of 2012, C.W.S. was attacked by a fellow student named Billy who was arrested and C.W.S. returned to Glen Oaks. When C.W.S. was released, the family went to a shelter to stay because the house was being foreclosed. The Department implemented a "safety plan" to prevent C.W.S. from having any contact with Billy who had since bonded out of jail. Despite these efforts, Mother admitted "breaking" the plan and "allowing" C.W.S. to visit and stay at Billy's home. Later, Mother reported she and Hardy had a new home where they and the boys would live.
In January 2013, the Department was again notified that Mother's home was unsanitary and Hardy was using drugs. When Bounds visited in January, the house was unsanitary and Hardy admitted smoking marijuana. When she returned in February, the house was in the same state, and C.W.S. was not being properly medicated. Mother told Bounds his medication had spilled and she had not gotten a refill. Throughout the spring and summer of 2013, the boys were reported out late at night, walking the streets; C.W.S. continued having behavioral problems, was suspended from school, and was taken to Glen Oaks on at least one occasion. In June, the family was "kicked out of the home" where they lived. In August, C.W.S. was sent to a juvenile detention center for committing assault; the following month, police responded to a report that T.A.S. committed an assault.
By December, the home situation was dire. Both boys were "very dirty" and had "a very foul stench." T.A.S. had numerous "very large warts from an unspecified source all over his hands, in between his fingers, and [they had] spread to [his] lower extremities." T.A.S. told Bounds the home had no running water, they had little food, and he ate only when he was at school. C.W.S. had an "outburst and went after his aunt and [T.A.S.] with a butcher knife." He then ran away and stayed with an uncle who spanked him with a belt and put him in handcuffs. Bounds stated the family had exhausted all available services that could be provided through Family Based Safety Services, and the children were in an unsafe situation.
Tormos, another representative of the Department, confirmed much of what Bounds said. In addition, she noted that in late November 2013, she tried to contact the boys at school but they were absent. She went to the house, but no one answered the door. After reaching Mother by phone, she waited until Mother arrived with C.W.S. When Tormos asked about T.A.S., Mother said he was very sick and was inside the house asleep. The house was dirty because Mother had been "too busy to clean." T.A.S., who was lying on a mattress cluttered with dirty clothes and dirty dishes, was "literally passed out and [Tormos] could not wake him up well enough to speak with [him.] He was very pale and did not look well." Mother admitted she had given him a lot of over-the-counter medications to make him sleep. Mother also admitted T.A.S. was not on the "right [prescription] medications and she [was] not giving it to him like she [was] supposed to because she [was] running out soon." Tormos told her to take him to a doctor or the emergency room immediately.
On December 20, 2013, the trial court entered emergency temporary orders removing the children from Mother's possession, naming the Department as temporary sole managing conservator, and authorizing the Department to consent to medical care for the children. Following a hearing on January 3, 2014, the trial court limited Mother's access to the children and ordered she pay child and medical support. The court also ordered she and Hardy submit to psychological examinations; attend and cooperate fully in individual, group, and/or family counseling sessions; attend, participate in and successfully complete parenting instruction/classes; and comply with the Department's service plan. In addition, Hardy was ordered to submit to and cooperate fully in the preparation of drug and alcohol dependency assessment and to submit to drug testing as deemed necessary by the Department. Sometime in the spring of 2014, Mother and Hardy ceased living together, and Mother began living with Allen Wilkinson, a registered sex offender. During this time, the trial court found that extraordinary circumstances necessitated the children remain in the temporary managing conservatorship of the Department and issued an order retaining the case for an additional 180 days.
Mother appeared at the final hearing, which began June 15, but did not appear when the hearing was continued on August 7, 2015. Although Mother's counsel asked for a continuance, the trial court denied the request and heard testimony from two witnesses, Crystal Wrape and Amy Patterson.
Wrape, a conservatorship case worker for Child Protective Services, said the Department received a call about unsanitary conditions of Mother's home and investigated. According to Wrape, when the Department first visited, the "children were very dirty. The home was nasty, had feces in the home." The Department decided to open a family-based safety service case and work to resolve the issues facing the family.
Both boys, who were diagnosed with possible bipolar disorder and anxiety/anger issues, were on psychotropic medications; Mother, however, was not administering the medications properly and, as a result, the boys had frequent outbursts at school. After the incident in which C.W.S. chased his brother and their aunt with a butcher knife, then spent the night with an uncle who spanked him with sufficient force to leave bruising, the Department filed a motion seeking temporary managing conservatorship of the boys and moved the children to foster care. The Department developed a plan for Mother and told her to reconnect with "Texoma Community Center, which was formerly MHMR and get back on her medications."
Wrape described Mother's initial visits with the boys as "terrible." She ignored the boys and did not know how to interact with them. After taking parenting classes, she progressed somewhat but was often focused on "her other children that reside with family in Missouri" instead of C.W.S. and T.A.S. Although Mother reported she found employment, she was unable to provide Wrape with a pay stub or a phone number of her employer for verification. She made one or two child support payments but was still behind at the time of the hearing. Mother initially participated in counseling and made "good progress." She told her counselor she had to switch to another facility but would not sign a release allowing the Department to be apprised of her progress. Finally, Wrape noted that although Mother was supposed to provide safe and appropriate housing for the boys, she was living with her boyfriend who had been convicted of indecency with a child and was required to register for life as a sex offender. Wrape told Mother the boys could not live in the home if the boyfriend was there, but Mother did not end the relationship nor did she ask him to move out.
According to Patterson, the CASA representative assigned to the case, the boys were doing well since their removal from Mother's care. C.W.S. was very stable; T.A.S. still had anger issues stemming from not being with his brother but was improving. The last time Patterson spoke with Mother, she said she could not kick Wilkinson out of the house because she was not "cold-hearted." Patterson and CASA believed it was in the boys' best interest that Mother's parental rights be terminated. At the conclusion of the hearing, the trial court terminated Mother's parental rights.
In her sixth issue, Mother contends she was denied due process of law when the trial court denied her motion for continuance. Under this issue, Mother claims the denial of her continuance prevented her from testifying and providing evidence that only she was able to present. We reject her complaint for two reasons.
First, we note the Texas Rules of Appellate Procedure require that briefs contain a "clear and concise argument for the contentions made, with appropriate citations to authorities and the record." TEX. R. APP. P. 38.1(i). When the appellate issue is unsupported by argument or lacks citation to the record or legal authority, nothing is presented for our review. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004). Under this issue, Mother's brief contains no citation to authority or citations to the record, and therefore, fails to meet the standard mandated by the rules.
Second, even if we address her issue, we cannot conclude the trial court erred by denying the motion for continuance. We review the denial of a motion for continuance for an abuse of discretion. Wal-Mart Stores Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas 2009, pet. denied). The denial will be reversed only if the trial court's action was arbitrary, unreasonable, or without reference to any guiding rules and principles. Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—Dallas 2008, no pet.). When a party moves for continuance, rule 251 requires the party to show sufficient cause supported by affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251.
The record shows Mother's counsel asked for an oral continuance when Mother failed to appear on the second day of trial; however, counsel did not support the request with an affidavit as required by rule 251. Generally, when a movant fails to comply with rule 251's requirement that the motion for continuance be "supported by affidavit," an appellate court must presume the trial court did not abuse its discretion by denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). In other words, if a motion for continuance is not verified or supported by affidavit, we will presume the trial court did not abuse its discretion by denying the motion. Garner, 244 S.W.3d at 858. Moreover, the Department did not consent to the continuance, and Mother did not explain why a continuance was required by operation of law. See TEX. R. CIV. P. 251. Because Mother's oral motion does not satisfy the requirements of rule 251, she failed to preserve this complaint for our review. See In re A.M., 418 S.W.3d 830, 838 (Tex. App.—Dallas 2013, no pet.); Strong v. Strong, 350 S.W.3d 759, 762 (Tex. App.—Dallas 2011, pet. denied). We overrule her sixth issue.
In issues one through five, Mother contends the Department failed to introduce sufficient evidence to support the trial court's judgment terminating her parental rights.
Whether reviewing legal or factual sufficiency, the standard is whether a reasonable trier of fact could reasonably form a firm belief or conviction about the truth of the State's allegations. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). To terminate parental rights, the trial court must make two findings. First, the parent must have committed one of the acts prohibited under section 161.001(b)(1) of the Texas Family Code, and second, the termination of parental rights must be in the children's best interest. TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2015).
In a legal sufficiency review, 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 its finding was true. J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, we must assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. And we should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. If, after conducting this legal sufficiency review of the record evidence, we determine no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.
In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. The inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re A.B., 437 S.W.3d 798, 502. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (citing In re J.F.C., 96 S.W.3d at 266).
In her first four issues, Mother claims the evidence is legally and factually insufficient to show she (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children; (3) failed to support the children in accordance with Mother's ability during a period of one year ending within six months of the date of the filing of the petition; and (4) failed to comply with the provisions of the court order that specifically established the actions necessary for Mother to obtain the return of the children for not less than nine months as a result of the children's removal from Mother. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (F), (O).
The record shows the children lived in a "filthy" home with flies, roaches, and animal feces, and at times living with a drug user. T.A.S. reported the house had no running water and little food. After C.W.S. was attacked by another boy, Mother defied the safety plan set in place to protect C.W.S. and allowed him to stay over at the boy's house. The record also shows T.A.S. and C.W.S. were not properly medicated while living with Mother and had frequent outbursts. They wandered unsupervised at night. When C.W.S. attacked T.A.S., C.W.S. went to a relative's house where he was spanked with a belt and left in handcuffs. Just before the Department was appointed temporary sole managing conservator, both boys were filthy and odorous, and T.A.S. had untreated warts all over his body.
Once the children were removed, a family service plan was enacted. Under the plan, Mother was ordered to comply with all tasks set out in the plan, including: participate in individual counseling, participate in visitation with the boys, pay $30 a month in child support, obtain and maintain safe, appropriate housing with all running utilities and safe clean places for the boys to sleep, and participate in parenting classes. Mother made two child support payments during the eighteen-month period after the boys were removed. Although she claimed to have a job and to be attending counseling, she would not sign a release allowing the Department to confirm either. She began counseling and progressed but left and would not give the Department any information about whether or where she was participating in counseling. At the time of trial, Mother had been living with a registered sex offender and refused to have him leave, stating he was not a threat to the boys. Based on the entire record before us, we conclude the evidence is both legally and factually sufficient to support a finding by clear and convincing evidence that Mother knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children; failed to support the children in accordance with Mother's ability during a period of one year ending within six months of the date of the filing of the petition; and failed to comply with the provisions of the court order that specifically established the actions necessary for Mother to obtain the return of the children. We overrule Mother's first four issues.
In her fifth issue, Mother claims the Department failed to introduce sufficient evidence that the termination of her parental rights was in the best interest of the children. Several factors are considered in determining whether termination is in a child's best interest. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). These 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 those 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 the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Id. This list of factors is not exhaustive, and no single consideration is controlling. Id.
Evidence about placement plans and adoption are, of course, relevant to best interest; 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." In re C.H., 89 S.W.3d at 28. Rather, "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.; see In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
The record shows the boys improved in foster care. Patterson described both boys as angry, destructive, and having significant behavioral issues when they first moved out of Mother's house. T.A.S. threw things, threatened people, and tried to fight; C.W.S. got mad and wandered off. C.W.S.'s visits with his mother were difficult on him, and it took a week to ten days for him to readjust after seeing her. He often threw temper tantrums after visiting with his mother and bit people. The Department ensured both boys were in counseling and having their medical needs met.
More recently, C.W.S. had stabilized and was functioning well in his foster home. He was learning to eat healthier foods, and both boys learned to clean up after themselves. Patterson confirmed that Mother lived with a registered sex offender. She said T.A.S. knew his mother "made the decision to put a man in her life and pick him over her children," so he was angry with her but had "gotten a little bit better." Patterson believed once there were no visits with Mother, both boys would stabilize, get closure, and be able to move on. She felt they could be adopted and that terminating Mother's rights was in the best interest of both children. No evidence was presented at the hearing that disputed this testimony. On this record, viewing the evidence in the light most favorable to the verdict, we conclude the factfinder could reasonably form a firm belief or conviction that termination of Mother's parental rights is in the children's best interest. Furthermore, viewing the evidence in a neutral light, we conclude the factfinder could reasonably form a firm belief or conviction that termination is in the children's best interest. We overrule Mother's fifth issue.
We affirm the trial court's judgment. 151101F.P05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
JUDGMENT
On Appeal from the 59th Judicial District Court, Grayson County, Texas
Trial Court Cause No. FA-13-2197.
Opinion delivered by Justice Francis, Justices Bridges and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered January 22, 2016.