Opinion
No. 04-17-00837-CV
04-25-2018
IN THE INTEREST OF S.T.G. and A.D.W., Children
MEMORANDUM OPINION
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02552
Honorable Martha Tanner, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Tara appeals the trial court's termination of her parental rights to her children, S.T.G. (born in 2012) and A.D.W. (born in 2015). She argues there is legally and factually insufficient evidence that termination of her parental rights is in the children's best interest. We affirm the trial court's judgment.
To protect the identity of minor children in an appeal from an order terminating parental rights, parents are referred to by their first names and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
The trial court also terminated the parental rights of the children's father, who has not filed a notice of appeal.
BACKGROUND
The Department of Family and Protective Services filed an original petition for conservatorship of the children and to terminate Tara's parental rights. The Department obtained temporary conservatorship of the children based on allegations of neglect. The Department's affidavit in support of removal stated S.T.G. was "observed at school and had a bad odor coming from him" and expressed concerns about the unsanitary conditions of the home. The children were removed and placed in foster care.
The case proceeded to a bench trial at which several witnesses testified, including Tara, the children's father Teddy, the children's foster mother Tammy, Department caseworkers Abigail Gonzalez and Lesley Oxendine, and licensed professional counselors Allie Hennis and Brenda Martinez. Generally, the Department's evidence described the unsanitary home conditions in which the children lived; Tara's failure to support the children; S.T.G.'s physical and emotional needs; and the children's improvement while living in foster care.
After trial, the trial court signed a judgment terminating Tara's parental rights to the children. The trial court found Tara had failed to support the children in accordance with her abilities for a period of one year and failed to comply with court-ordered provisions of her family service plan. The trial court also found that termination of Tara's parental rights is in the children's best interest. Tara timely appealed and argues only that there is legally and factually insufficient evidence that termination of her parental rights is in the children's best interest. Tara does not challenge the trial court's findings of grounds for termination.
STANDARD OF REVIEW
A judgment terminating parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine whether a "factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable credibility determinations. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, 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." Id.
BEST INTEREST
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. Id. "A factfinder 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." In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
There is no evidence regarding the children's desires, but not every factor must be proved to find that termination is in the child's best interest. See In re C.H., 89 S.W.3d at 27. Furthermore, even when children express a desire to remain with their parents, that evidence alone does not necessarily outweigh factors that may weigh in favor of termination, such as the unsanitary conditions of a home. See, e.g., In re J.R., 501 S.W.3d 738, 746 (Tex. App.—Waco 2016, no pet.).
Evidence of unsanitary conditions of a home may support the trial court's best-interest finding. See id.; In re A.B., 412 S.W.3d 588, 603 (Tex. App.—Fort Worth 2013), aff'd, 437 S.W.3d 498 (Tex. 2014); In re K.A., No. 10-12-00253-CV, 2012 WL 5697080, at *3 (Tex. App.—Waco Nov. 15, 2012, no pet.) (mem. op.); Cathey v. Tex. Dep't of Family & Protective Servs., No. 03-09-00596-CV, 2010 WL 3431695, at *7 (Tex. App.—Austin Aug. 31, 2010, no pet.) (mem. op.). The Department's evidence primarily showed the unsanitary conditions of the home. Caseworker Gonzalez testified this is the second case involving Tara and concerns about the conditions of her home, and about Tara's brother who used drugs and had lived in the home. The first case was closed because Tara's brother moved out of the home, and Tara and Teddy improved the conditions of the home. According to Gonzalez, this present case was initiated because the conditions of their home deteriorated after the first case was closed. Gonzalez described the conditions of the home: there were urine stains in A.D.W.'s playpen in which A.D.W. had been sleeping; there were black stains throughout the home; there were roaches in the pantry; fecal matter from several animals remained in the house; there were plumbing issues and holes in the wall; and the house was cluttered and difficult to walk through. Gonzalez testified these conditions presented safety issues for S.T.G. and A.D.W., who were four years old and one year old, respectively.
Caseworker Oxendine also testified the unsanitary conditions of the home persisted after this case started. She stated the carpet in the house had been removed, rolled up, and placed outside; an odor in the house that "kind of hits you before you even get up to the door" persisted; animal feces and animal food were visible on the floor; a strong odor permeated from a cat litter box; dirty dishes with old food were piled up in the sink and on the stove; pans in the kitchen were lined with old, dried-up food; squished cockroaches were in the door jambs and dead roaches were on the windowsill; dirty clothes littered the house; mold had formed in the bathtub and on the air intake for the furnace; and bedbugs had infested the bed in the master bedroom. Oxendine made another visit five months later and was surprised that there was not much improvement to the home. Oxendine testified that during a third visit several months later, the conditions of the home were the same except the roaches had been discarded and the dishes were washed. She further stated there was electricity in the house, but she was unsure whether there was running water or food in the refrigerator. Although there is evidence that Tara and Teddy were selling their house, the house was under contract, and they were moving to a new house, Oxendine testified the family had moved four times in three years and each residence "has gotten so nasty that they've had to move to a different house."
The failure to support a child during the case may also be evidence relevant to the trial court's best-interest finding. In re A.T.L., No. 04-15-00379-CV, 2015 WL 6507807, at *6 (Tex. App.—San Antonio Oct. 28, 2015, pet. denied) (mem. op.). Oxendine testified that during the pendency of the case, Tara provided nothing in support of the children. See id.
There is also evidence about Tara's inability to meet the children's physical and emotional needs, and the children, especially S.T.G., improved in foster care. See Holley, 544 S.W.2d at 372. Licensed professional counselor (LPC) Hennis, S.T.G.'s therapist for several months during the case, testified S.T.G. suffers from an anxiety disorder and communication delays, demonstrates aggressive behavior toward A.D.W. and adults, and is evasive and noncompliant behavior toward adults. Hennis explained S.T.G. would need very diligent caregivers who are able to provide a high level of supervision. She testified it would require a lot of energy to adequately address S.T.G.'s needs. However, Tara testified she had low energy as a result of depression, and LPC Martinez testified Tara's depression has been a "debilitating issue." According to Martinez, Tara's priorities have not been her children, but her pet animals. According to the testimony of Hennis and the foster mother Tammy, S.T.G. has improved since being in foster care and has been receiving occupational and speech therapy; however, there was an incident when S.T.G. fell down the stairs and sustained a hairline fracture from the fall. Tammy testified the children tell her they love her and that she plans to adopt the children if she has the opportunity.
Tara attributed the lack of maintaining the cleanliness of the home to her depression and to the fact she had to wait ninety days to visit with a psychiatrist about getting medication. See id. (stating we should consider the parents' excuses for their acts and omissions). However, the evidence shows Tara delayed engaging in services that would help address her depression. The evidence also shows Tara was aware for some time before the case she suffered from depression and had not addressed the issue throughout her life.
Having reviewed the evidence admitted at trial, we conclude a factfinder could have reasonably formed a firm belief or conviction that termination of Tara's parental rights is in the children's best interest. See In re J.F.C., 96 S.W.3d at 266; see also In re J.R., 501 S.W.3d at 746; In re A.B., 412 S.W.3d at 603; In re K.A., 2012 WL 5697080, at *3; Cathey, 2010 WL 3431695, at *7. We therefore hold there is legally and factually sufficient evidence to support the trial court's best-interest finding.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice