NO. 07-09-0166-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
NOVEMBER 23, 2009
______________________________
IN THE INTEREST OF J.N., A CHILD
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 24,589; HONORABLE DAN MIKE BIRD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Samantha Bradford, appeals a Final Order in Suit Affecting the Parent-
Child Relationship in which the trial court terminated the parent-child relationship between
Bradford and her daughter, J.N.1 By four issues, Bradford contends that there is legally
and factually insufficient evidence to support the judgment of termination. Concluding that
the record contains factually insufficient evidence that termination of Bradford’s parental
rights is in the best of the child, we will reverse the judgment and remand the cause.
1
See TEX . R. APP. P. 9.8(b)(1)(A).
Background
Bradford is the biological mother of J.N. (the child). In April of 2007, the Department
of Family and Protective Services (Department), appellee, received a report that the child
was extensively bruised. The Department investigated the report and discovered that the
child had a three to four inch, red and purple bruising in her vaginal and rectal area as well
as approximately five quarter-sized bruises on her chest. The child was taken to a hospital
for evaluation, which confirmed that the child’s condition was, in fact, bruising.
On the evening during which the child sustained the bruising, Bradford indicated that
she had left the child with her boyfriend, Shaun McGee, when she went to work. Before
Bradford left for work, the child did not have any bruising or diaper rash in her vaginal or
rectal areas. According to the report received by the Department, McGee called Bradford
at work to inform her that the child was red. Bradford assumed that it was diaper rash so
she told McGee to put ointment on it. When Bradford returned home from work, she
checked on the child’s condition, but, due to it being dark at that time, she continued to
believe that the child simply had a bad case of diaper rash. While Bradford had previously
taken the child to the hospital for bad diaper rash, she did not seek medical attention on
this occasion because she was afraid that the Department would become involved in the
case.
The Department filed suit to terminate the parental rights of Bradford due to
violations of Texas Family Code section 161.001(1)(D), (E), and (O) and because
termination would be in the best interest of the child. See TEX . FAM . CODE ANN . § 161.001
2
(Vernon Supp. 2009).2 At the beginning of the resulting trial, genetic testing established
that Jeremy Cook was the biological father of the child. The trial court signed an order
establishing that Cook is the child’s father and the Department expressly indicated that it
was not seeking termination of Cook’s parental rights. After a bench trial, the trial court
found, by clear and convincing evidence, that Bradford had (1) knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endangered the
physical or emotional well-being of the child; (2) engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangered the physical or
emotional well-being of the child; and (3) failed to comply with the provisions of a court
order that specifically established the actions necessary for Bradford to obtain the return
of the child. See § 161.001(1)(D), (E), (O). In addition, the trial court found, by clear and
convincing evidence, that termination of Bradford’s parental rights would be in the best
interest of the child. See § 161.001(2). On the basis of these findings, the trial court
ordered termination of the parent-child relationship between Bradford and the child.
Bradford appeals the trial court’s order terminating her parental rights contending
that each of the trial court’s findings under section 161.001 is not supported by legally and
factually sufficient evidence.
2
Further references to the Texas Family Code will be by reference to “section ___”
or “§ ___.”
3
Termination of Parental Rights
Parents’ rights to “the companionship, care, custody and management” of their
children are constitutional interests “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In a termination
case, the State seeks not merely to limit those rights, but to end them finally and
irrevocably–to divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit. See § 161.206;
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Because termination of parental rights is such a drastic act, due process requires
that the petitioner justify termination by clear and convincing evidence. See § 161.206(a);
In re G.M., 596 S.W.2d 846, 846-47 (Tex. 1980). Clear and convincing evidence is “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.” § 101.007. Because
of the severity and permanency of the termination of a parent-child relationship, termination
proceedings should be strictly scrutinized and involuntary termination statutes are strictly
construed in favor of the parent. Holick, 685 S.W.2d at 20-21.
Section 161.001 sets out a two-pronged test for the involuntary termination of a
parent-child relationship. See § 161.001. The trial court must find, by clear and convincing
evidence, that the parent has engaged in one of the grounds for termination found in
section 161.001(1) and that termination of the parent-child relationship is in the best
interest of the child. See § 161.001; Horvatich v. Tex. Dep’t of Protective & Regulatory
4
Servs., 78 S.W.3d 594, 596 (Tex.App.–Austin 2002, no pet.). The trial court must find both
a statutory ground for termination and that termination would be in the best interest of the
child before it may terminate the parent’s rights. See Holley v. Adams, 544 S.W.2d 367,
370 (Tex. 1976); Horvatich, 78 S.W.3d at 596. While the trial court must find both prongs
to terminate, often, evidence of statutory grounds for termination will be relevant to the
determination of whether termination is in the best interest of the child. See In re M.A.N.M,
75 S.W.3d 73, 79 (Tex.App.–San Antonio 2002, no pet.); In re D.M., 58 S.W.3d 801, 814
(Tex.App.–Fort Worth 2001, no pet.).
Standard of Review
When both legal and factual sufficiency challenges are presented, the reviewing
court first reviews the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co.,
619 S.W.2d 400, 401 (Tex. 1981). Because termination requires that each of the two
prongs be established by clear and convincing evidence, review of the legal and factual
sufficiency of the evidence is necessarily affected by the burden of proof required at trial.
In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). As such, we review the legal sufficiency of
the evidence in a termination proceeding by considering all of the evidence in the light most
favorable to the prevailing party, indulging every reasonable inference in that party’s favor,
to determine whether a reasonable trier of fact could have formed a firm belief or conviction
that its finding was true. Id. at 266. In a factual sufficiency review of a termination
proceeding, we review all of the evidence in a neutral light to determine whether the
evidence is such that the finder of fact could reasonably form a firm belief or conviction
about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
5
Statutory Grounds for Termination
By her second, third, and fourth issues, Bradford challenges the legal and factual
sufficiency of each of the statutory grounds for termination found by the trial court. Only
one finding alleged under section 161.001(1) is necessary to support a judgment of
termination. In re D.M., 58 S.W.3d at 813.
In reviewing the legal sufficiency of the evidence, we will consider the evidence that
supports the trial court’s findings of the statutory grounds for termination and the
undisputed evidence. In re J.F.C., 96 S.W.3d at 268. We do not consider evidence that
the trial court could have reasonably disbelieved. Id.
The trial court found that Bradford failed to comply with the provisions of a court
order that specifically established the actions necessary for the parent to obtain the return
of the child under section 161.001(1)(O). In an order entered on August 20, 2007, the trial
court ordered Bradford to pay $50 per month to the Department for child support, submit
to a psychological or psychiatric evaluation, attend and cooperate in counseling sessions,
successfully complete parenting classes, submit to a drug and alcohol dependency
assessment, submit to random drug testing, comply with each requirement in the
Department’s original or amended safety plan, and notify the Department and trial court
of her current residence address. The Department’s safety plan clarified some of the
requirements under the trial court’s order and, additionally, required Bradford to obtain and
maintain employment or show a means of providing financial support for the child and
obtain appropriate housing and maintain a safe and sanitary home. While there is some
6
undisputed evidence that Bradford complied with certain portions of the trial court’s order,
there is evidence in the record that Bradford did not complete the ordered parenting
classes, failed to notify the Department of residence address changes, did not make any
monthly child support payments, and tested positive for marijuana on two occasions.
Considering all of the evidence in the light most favorable to the trial court’s finding
and indulging every reasonable inference in favor of that finding, we conclude that the trial
court could reasonably have formed a firm belief or conviction that Bradford failed to
comply with the provisions of a court order that specifically established the actions
necessary for Bradford to obtain the return of the child. Thus, the evidence is legally
sufficient to support the trial court’s finding of a statutory ground for termination.
Considering the evidence in a neutral light, we are still presented with
uncontroverted evidence that Bradford failed to comply with the provisions of the trial
court’s order. While it is true that Bradford completed about half of the parenting classes
she was ordered to complete, submitted to a psychological evaluation, attended counseling
until terminated by the counselor, and was evaluated and tested for drugs, Bradford still
failed to comply with all of the provisions of the trial court’s order.3 Considering this
3
Bradford contends that the statutory ground for termination based on the failure
to comply with a court order requires proof of a contumacious failure to comply. However,
the authority cited by Bradford to support this position does not support the position.
Bradford cites In re J.R., 171 S.W.3d 558 (Tex.App.–Houston [14th Dist.] 2005, no pet.),
in support of her contention that the statutory ground requires contumacious violation of
a court order, but the opinion in no way attempts to establish such a standard. In fact, the
court expressly states that the issue of whether proof of section 161.001(1)(O) had been
presented was not before it. See id. at 570 n.5. Further, the legislature included a
statutory ground for termination based on a contumacious refusal to comply with a court
order in section 161.001(1)(I). Clearly, if the legislature had intended for the failure to
7
undisputed evidence, we cannot say that the trial court could not have reasonably formed
a firm belief or conviction of the statutory ground for termination found in section
161.001(1)(O). See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Because only one statutory ground for termination under section 161.001(1) is
necessary to support a judgment of termination, we need not address Bradford’s
challenges to the sufficiency of the evidence supporting the findings under section
161.001(1)(D) and (E). See TEX . R. APP. P. 47.1; In re D.M., 58 S.W.3d at 813.
We overrule appellant’s second, third, and fourth issues.
Best Interest of the Child
By her first issue, Bradford contends that the evidence is legally and factually
insufficient to support the trial court’s conclusion that termination is in the best interest of
the child. To terminate a parent’s rights, the evidence must establish by clear and
convincing evidence that termination is in the best interest of the child. See Holley, 544
S.W.2d at 370; Horvatich, 78 S.W.3d at 596. There is a strong presumption that the best
interest of a child is served by keeping custody in the natural parent. In re D.T., 34 S.W.3d
625, 641 (Tex.App.–Fort Worth 2000, pet. denied). Termination should not be used to
merely reallocate children to better and more prosperous parents. In re D.M., 58 S.W.3d
at 814.
comply with a court order under section 161.001(1)(O) to have required a contumacious
failure, it could have easily expressed that intent. Compare § 161.001(1)(I) with §
161.001(1)(O).
8
In determining whether termination of a parent-child relationship would be in the
best interest of the child, courts may consider a number of factors, including: the desires
of the child, the present and future physical and emotional needs of the child, the present
and future emotional and physical danger to the child, the parental abilities of the person
seeking custody, programs available to assist those persons in promoting the best interest
of the child, plans for the child by those individuals or by the agency seeking custody, the
acts or omissions of the parent that may indicate that the existing parent-child relationship
is not appropriate, and any excuse for the acts or omissions of the parent. Holley, 544
S.W.2d at 371-72. We will review the evidence under each of the Holley factors to
determine the sufficiency of the evidence to support the trial court’s best interest
determination.
At the time of trial, the child was two and a half years old. As such, the child was
not able to express her desires. However, the evidence establishes that Bradford regularly
visited the child, interacted appropriately with the child during these visits, and had bonded
with the child. There is no evidence that the child has any greater physical or emotional
needs than any other two year old child. The Department presented evidence that
Bradford has a history of being involved in abusive relationships, however, the caseworker
testified that the Department does not believe that Bradford physically abused the child.
Additionally, the caseworker expressly testified that Bradford would pose no danger to the
child during supervised visitation. Bradford’s failure to comply with all provisions of the trial
court’s order, as discussed above, gives rise to a reasonable inference that Bradford may
not have the parental abilities to put the best interest of the child first. In addition,
9
Bradford’s testing positive for drugs on two separate occasions, even though both
occasions occurred at times when Bradford did not have possession of the child, is
significant when considering Bradford’s parental abilities. While there are programs
available to assist Bradford in promoting the best interest of the child, Bradford’s failure to
comply with the trial court’s order and the Department’s service plan and avail herself of
such programs renders the availability of such programs less significant. As to Bradford’s
acts or omissions that affect whether the parent-child relationship is proper, there was
undisputed evidence that Bradford continued her relationship with McGee after she was
aware that the Department suspected that McGee had caused the child physical injuries.
While there is no direct evidence that Bradford allowed McGee to have contact with the
child after this incident, she maintained the relationship with McGee after the incident and
it is reasonable to infer that she allowed McGee to have contact with the child during the
time that Bradford had custody of the child. The Department indicated that its plans for the
child were to terminate Bradford’s parental rights so that the child could be adopted. The
Department also indicated that it would first attempt to place the child with her biological
father. However, termination of Bradford’s parental rights is not justified by the
Department’s plan for adoption of the child so long as the biological father retains his
parental rights.
Considering this evidence in the light most favorable to the trial court’s determination
that termination would be in the child’s best interest, we conclude that the evidence of
Bradford’s history of abusive relationships, positive drug tests, failure to comply with the
trial court’s order and avail herself of programs that could assist her in promoting the best
10
interest of the child, combined with the reasonable inference that she allowed McGee to
have contact with the child after she was aware that McGee was suspected of having
injured the child is sufficient evidence to allow the finder of fact to have formed a firm belief
or conviction that termination of Bradford’s parental rights would be in the child’s best
interest. See In re J.F.C., 96 S.W.3d at 266.
However, when the totality of the evidence is reviewed in a neutral light, we
conclude that the evidence is insufficient to establish that termination of the parent-child
relationship would be in the best interest of the child. The Department’s plans for the child
are to attempt to place the child with her biological father and, if those attempts fail, to
attempt to place the child with an adoptive family. Because the Department cannot adopt
the child so long as the biological father retains his parental rights, termination of
Bradford’s parental rights will not necessarily advance the goal of prompt and permanent
placement of the child in a safe environment. See § 263.307(a). Further, termination of
Bradford’s parental rights would remove Bradford’s duty to support the child. See §
161.206; Holick, 685 S.W.2d at 20. The child’s biological father testified that he does not
believe that it would be in the child’s best interest for Bradford’s rights to be terminated.
Bradford and the child have developed a bond. The Department’s caseworker conceded
that Bradford would pose no threat to the child during supervised visits. The child’s
biological father testified that he would be willing to comply with any court orders that
allowed Bradford to have supervised visitation with the child.
We must remain mindful that there is a strong presumption that the best interest of
a child is served by keeping custody in the natural parent. In re D.T., 34 S.W.3d at 641.
11
While the Department need not prove definitive plans for the child’s placement, see In re
C.H., 89 S.W.3d at 28, we can see no compelling benefit that would be gained by severing
the bond that exists between Bradford and the child at this time, especially in light of the
Department’s current plans to attempt to place the child with her biological father. The
evidence established that the child was doing well in the temporary managing
conservatorship of the Department with Bradford visiting the child under supervision. As
the evidence establishes that Bradford poses no threat to the child during supervised visits
and since the Department’s goal of providing the child stability and permanence through
adoption cannot currently be accomplished, we cannot see how the finder of fact could
form a firm belief or conviction that the drastic act of termination would be in the best
interest of the child.4 Consequently, we conclude that the evidence is factually insufficient
to support the trial court’s determination that termination of Bradford’s parental rights is in
the best interest of the child.
We sustain Bradford’s first issue.
4
Our conclusion that the Department has failed to present factually sufficient
evidence regarding the best interest of the child is not based on the Department’s inability
to identify its definitive plans for the child. Rather, our conclusion is based, in large part,
on the Department’s reliance on benefits that the child will only obtain if the child is
permanently placed in a stable environment. Since the Department will first attempt to
place the child with her biological father, termination of Bradford’s parental rights will not
significantly advance the Department’s plans and the maintenance of Bradford’s parental
rights will not significantly impede the Department’s plans.
12
Conclusion
Because we hold that the record contains factually insufficient evidence that
termination of Bradford’s parental rights is in the best interest of the child, we reverse the
trial court’s order and remand the cause for a new trial on all issues.
Mackey K. Hancock
Justice
13
in the Interest of J.N., a Child
Combined Opinion