COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-059-CV
IN THE INTEREST OF
A.S., T.S., AND C.S.,
CHILDREN
------------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
After a bench trial, the trial court terminated Appellant J.S.’s parental
rights to his daughters A.S., T.S., and C.S. In one issue, he contends that the
evidence is factually insufficient to support the trial court’s finding that the
termination of his parental rights is in the children’s best interest. Because the
evidence is factually sufficient to support the finding, we affirm the trial court’s
order of termination.
1
… See Tex. R. App. P. 47.4.
Appellant also raised the issue of the factual sufficiency of the evidence
to support the best interest finding in his timely filed combined statement of
points and motion for new trial. We decline the State’s request to reconsider
our rulings in In re D.W.2 and In re A.J.H.3 and hold that this issue was
sufficiently preserved.
Termination decisions must be supported by clear and convincing
evidence. 4 Evidence is clear and convincing if it “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.” 5 Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child.6
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our
2
… 249 S.W.3d 625, 645 (Tex. App.—Fort Worth 2008, pet. denied) (en
banc).
3
… 205 S.W.3d 79, 80–81 (Tex. App.—Fort Worth 2006, no pet.).
4
… Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon Supp. 2008).
5
… Id. § 101.007 (Vernon 2002).
6
… In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
2
own.7 We must determine whether, on the entire record, a factfinder 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.8 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 in the truth of its finding,
then the evidence is factually insufficient.9
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. 10 Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. 11 The following
factors should be considered in evaluating the parent’s willingness and ability
to provide the child with a safe environment:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
7
… In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
8
… In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
9
… H.R.M., 209 S.W.3d at 108.
10
… In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
11
… Tex. Fam. Code Ann. § 263.307(a) (Vernon 2002).
3
(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;
(5) whether the child is fearful of living in or returning to the
child’s home;
(6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members,
or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to the
child’s home;
(8) whether there is a history of substance abuse by the
child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is
identified;
(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, including providing the child and other children
under the family’s care with:
(A) minimally adequate health and nutritional care;
4
(B) care, nurturance, and appropriate discipline
consistent with the child’s physical and psychological
development;
(C) guidance and supervision consistent with the child’s
safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and
capabilities; and
(13) whether an adequate social support system consisting
of an extended family and friends is available to the child. 12
Other, nonexclusive factors that the trier of fact in a termination case
may use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and
in the future;
(C) the emotional and physical danger to the child now and
in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to
promote the best interest of the child;
12
… Id. § 263.307(b); R.R., 209 S.W.3d at 116.
5
(F) the plans for the child by these individuals or by the
agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and
(I) any excuse for the acts or omissions of the parent.13
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate.14 Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. 15 On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding.16
The evidence shows that A.S., T.S., and C.S. were five, four, and three
years of age respectively at the time of trial in late 2007 and early 2008. They
first entered the State’s care via Dallas County CPS in June 2005 after
allegations that their mother neglected and abused them. (Their mother’s rights
13
… Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
14
… C.H., 89 S.W.3d at 27.
15
… Id.
16
… Id.
6
were also terminated; she did not appeal.) Appellant was homeless and a drug
addict at the time of the first removal. While the State offered him services,
he did not participate in any; he did test positive for cocaine. He visited the
children no more than five times during the first eighteen months that the
children were in the State’s care.
In June 2006, the State placed the children with Appellant’s brother,
B.S., who was later awarded permanent managing conservatorship in December
2006. Appellant saw the girls occasionally when they were with his brother
but did not provide contact information to the State and never attempted to
contact the State during that time.
In January 2007, B.S. took the children to the Fort Worth CPS office and
relinquished custody. The State could not locate Appellant at that point but
filed a petition for termination of parental rights later that month and served him
with the petition on February 1, 2007. Sh’niqua Alford, a CPS caseworker, met
with Appellant, who was still homeless. She told him that B.S. had returned
the children to CPS and that they were going to remain in foster care; she also
told him about the family service plan. Appellant stated that he wanted to
participate in services but wanted his children to live with B.S. Alford gave
Appellant all of her contact information; Appellant provided none. He did not
contact Alford again until several months later.
7
On August 31, 2007, Appellant left a message with Alford, stating that
he wanted the children back. He went to her office, and they again discussed
the family plan. Alford advised him that he should start the services
immediately and take a drug test. He tested positive for cocaine. Appellant
denied using drugs at that time. Appellant visited his children in September
2007. That was the last contact he had with his children.
On the last day of trial, Appellant reported that he had not used drugs in
the previous three months, he had a job at Burger King, and he had an
apartment. But he had not pursued completing a GED or attending AA or NA
meetings after hitting minor stumbling blocks, he had not pursued any other
type of drug treatment, and the program paying the rent and electricity on his
one-bedroom apartment, Project New Start, would not make payments after
thirty days’ notice if he got physical custody of his children.
While Appellant testified that his children were happy to see him during
the one visit he made between January 2007 and the trial that ended a year
later, their foster mother, with whom they had lived several months, testified
that the children did not talk about him and cried when confronted with the
possibility of having to live with him—C.S. regressed and began to wet herself
at different times, T.S. was tearful and scared, and A.S. “fed off everybody
else.”
8
All of the children had made outcries of sexual abuse against B.S., which
were still under investigation, by the time of the last day of trial in January
2008, and there was evidence that all three girls would need therapy to address
that issue. Further, there was evidence that all three girls have trust issues
relating to men.
Additionally, A.S. has speech problems and a cognitive deficiency. She
needs extra help in school and will continue to need help. She has trouble
processing language and trouble with math. She may need speech therapy and
occupational therapy. Even though she was in kindergarten at the time of trial,
she functioned at the level of a two-year-old. She was also getting neurological
and genetic testing to try to determine what was preventing her from
developing age-appropriately.
When A.S. first began to live with the foster mother about ten months
before the final day of trial, she was quiet and shy, but at the time of trial she
was excited about school, had friends, and had begun opening up.
T.S., the middle child, mothers her two sisters. She is on track
developmentally but has some attachment and bonding issues. When she first
began living with the foster mother, she had nightmares and was afraid to go
back to sleep. At the time of trial, she was thriving.
9
C.S., the youngest child, has some speech issues. She used foul
language when she first arrived at the foster mother’s house, but at the time
of trial she used foul language less and would correct herself when she did use
it.
The children’s therapist testified that the girls need to be placed in a
stable environment. She testified that if they were placed in an unstable or
unstructured environment, they would be “highly dysfunctional, probably not
being able to perform well in school; . . . and [it would be] very difficult for
them to progress in school as other children do.”
There was evidence that the children had bonded with the foster family,
that the children were happy and well cared for in a stable home, and that they
got a lot of attention and support from their foster family. The evidence also
showed that the foster parents wanted to adopt the children and that such
adoption was the State’s plan. Further, the foster parents were willing to
maintain the children’s contact with other siblings.
There was little evidence of Appellant’s parental ability. He admitted that
he had not nurtured or fed the children since 2005 and that he did not meet his
own characteristics of a good father—“[b]eing there, caring for them, feeding,
bathing, nurture.” During the six-week delay between the first and second days
of trial, Appellant still did not visit the children or take a drug test.
10
Applying the appropriate standard of review and considering the Holley
factors and the statutory factors for evaluating Appellant’s willingness and
ability to provide his children with a safe environment,17 we hold that the
evidence is factually sufficient to support the trial court’s finding that
termination of Appellant’s parental rights is in the children’s best interests. We
therefore overrule his sole issue and affirm the trial court’s order of termination.
PER CURIAM
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: November 6, 2008
17
… See Tex. Fam. Code Ann. § 263.307(b); Holley, 544 S.W.2d at
371–72.
11