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Opinion filed May 11, 2006
In The
Eleventh Court of Appeals
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No. 11-05-00083-CV
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IN THE INTEREST OF S.S., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 5699-CX
M E M O R A N D U M O P I N I O N
This is an involuntary termination of parental rights action under Tex. Fam. Code Ann. ch. 161 (Vernon 2002 and Supp. 2005). The trial court terminated the parent-child relationship between appellant, Damon Horton, and his child, S.S. We affirm.
Background Facts
S.S. was born on September 21, 2003, and was seventeen months old at the time of trial. S.S.=s parents are Horton and Delores Salazar. The Texas Department of Family and Protective Services was named temporary managing conservator of S.S. shortly after her birth. The Department removed S.S. from the hospital the day after she was born and placed her with a foster family. S.S. was with the same family at the time of trial. Salazar was in jail and had been sentenced to twelve years in prison. She voluntarily terminated her parental rights prior to trial by signing an affidavit of voluntary relinquishment.
The Department initially attempted to reunite S.S. and Horton. It provided structured visitation sessions, counseling, and training. Horton failed to comply with the family service plans, and the Department recommended termination of Horton=s parental rights so that S.S. could be adopted by her foster family. The court held a bench trial, found that Horton had constructively abandoned S.S., found that termination of Horton=s parental rights was in S.S.=s best interest, and entered an order terminating Horton=s parental rights.
Issues
Horton challenges the trial court=s judgment with two issues. First, Horton contends that the evidence is legally and factually insufficient to support the trial court=s finding that he constructively abandoned S.S. Second, Horton contends that the evidence is legally and factually insufficient to support the trial court=s finding that termination of the parent-child relationship was in S.S.=s best interest.
Standard of Review
Texas courts have long recognized that the natural right existing between a parent and child is of Aconstitutional dimensions.@ Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). There is a strong presumption that the best interest of a child is served by keeping the child with the natural parent. In re G.M., 596 S.W.2d 846 (Tex. 1980). Consequently, involuntary termination proceedings and statutes are strictly scrutinized in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985).
Due process requires that the Department establish the grounds for termination by clear and convincing evidence. This requires a measure or degree of proof which 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. Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994).
When conducting a legal sufficiency review, we examine all of the evidence in the light most favorable to the trial court=s finding and determine whether a reasonable fact-finder could have formed a firm belief or conviction that its finding was true. Phillips v. Tex. Dep=t of Protective and Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.). We must assume that the trial court resolved disputed facts in favor of its finding if a reasonable fact-finder could have done so and disregard all evidence that a reasonable fact-finder could have disbelieved or found to be incredible. Id.
When conducting a factual sufficiency review, we review the entire record, including evidence in support of and contrary to the judgment, and give due consideration to evidence the trial court could have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We then determine whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the State=s allegations. Id. We also consider whether any disputed evidence is such that a reasonable fact-finder could not have resolved that evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
Grounds For Termination
To terminate parental rights, the Department must prove by clear and convincing evidence that a parent committed one or more of the acts or omissions set out in Section 161.001(1) and then that termination of parental rights is in the child=s best interest. Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Section 161.001(1) provides in relevant part:
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
. . . .
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and:
(i) the department or autho-rized agency has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant con-tact with the child; and
(iii) the parent has demon-strated an inability to provide the child with a safe environment.
Horton does not dispute that the Department has been the temporary managing conservator of S.S. for more than six months. Horton does, however, challenge the trial court=s findings that he constructively abandoned S.S. and that Section 161.001(1)(N)=s elements were satisfied.
Did The Department Make Reasonable Efforts To Return S.S. To Horton?
The Department ultimately prepared three service plans to help reunite Horton and S.S.[1] The Department reviewed each plan with Horton. The Department arranged and paid for a psychological evaluation and a drug assessment and provided Horton with counseling and parenting classes. The Department scheduled regular visitation for Horton. It provided a parenting instructor and gave Horton one-on-one parenting training during visitation. Ultimately, the Department provided Horton with approximately twenty, one-hour parenting sessions. The Department offered Horton two hours of weekly training, but he only attended one session each week. The Department offered to change visitation times to accommodate Horton and provide him with more visitation, but he declined.
The Department=s initial plan was reunification. That changed to termination in the summer of 2004 when Horton began missing visits and leaving visitation sessions early. The Department was concerned that Horton did not understand what it meant to be an appropriate parent and that Horton refused to submit to drug screens and denied any drug use to the Department even though he had previously admitted to a counselor that he used and sold drugs.[2]
Horton challenges the Department=s intent, arguing that its focus was not on reunification but on convincing him to relinquish his parental rights so that S.S. could be adopted by her foster parents. Horton also argues that he worked hard to learn about parenting until the Department decided to seek termination and that he became discouraged by the process. As a reviewing court, we cannot substitute our conclusions for those of the fact-finder, even when applying a heightened standard of review. In re H.R., 87 S.W.3d 691, 699-700 (Tex. App.CSan Antonio 2002, no pet.). We must assume that the trial court resolved any conflicting evidence about the Department=s intent and Horton=s effort in favor of its finding. Phillips, 149 S.W.3d at 817.
Horton also argues that his contact with S.S. was more significant than the father in In re K.W., 138 S.W.3d 420 (Tex. App.CFort Worth 2004, pet. denied), where a termination order was reversed. That case is distinguishable. There, the father was incarcerated in New York. When he became aware of the child=s whereabouts and situation, he expressed a desire to become more involved with his child=s life, sent regular letters to the Department and court, and requested that his child be placed with a family member who was a licensed foster parent. Id. at 432-33. Horton had more actual contact than the father in K.W., but that father did the best he could under the circumstances and had suggested an arrangement which would have provided for the child=s well- being and welfare. Horton, however, significantly failed to take advantage of the opportunities presented to him and did not present a satisfactory alternative arrangement for S.S.
Texas courts have held that the preparation and administration of service plans by the Department are reasonable efforts to reunite a parent and child. See In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.CFort Worth 2002, no pet.). The Department provided Horton every opportunity to become a part of his child=s life. He failed to take advantage of those opportunities. We find that there was legally and factually sufficient evidence that the Department made a reasonable effort to reunite Horton with S.S.
Did Horton Regularly Visit Or Maintain Significant Contact With S.S.?
A parent fails to regularly visit or maintain significant contact with the child if the parent fails to take advantage of the visitation rights or if the visits are intermittent or sporadic. In re H.R., 87 S.W.3d at 699; In re P.R., 994 S.W.2d 411, 416 (Tex. App.CFort Worth 1999, pet. dism=d w.o.j.). S.S. has never lived in Horton=s home. Horton had weekly scheduled visitation with S.S. Initially, he attended most of these visits. Later, Horton started missing visits but did not call the Department to let it know when he could not attend. He left visits early and had difficulty staying awake during a visit. Horton told the Department officials that he was staying up late, sometimes until four or five o=clock in the morning with his friends. The Department advised Horton that he needed to demonstrate that he could change his routine, but he did not do so. Horton testified that he left visits early because he had to go to work. The Department offered to change his visitation time to accommodate his schedule and provide him more visitation, but Horton declined.
Horton made one visit in July 2004 and two visits in August. He only visited S.S. twice after September 2004, and he did not visit her at all between October 2004 and January 2005. He admitted that he did not call the Department between October 2004 and January 2005 to find out how S.S. was doing. He did not send S.S. a birthday present nor visit her for Christmas. He did give her a Christmas present on February 3, 2005 B approximately three weeks before trial.
We hold that this evidence is legally and factually sufficient to support the trial court=s finding that Horton did not regularly visit or maintain significant contact with S.S.
Has Horton Demonstrated An Inability To Provide A Safe Environment?
Horton points to the fact that he has held the same job for five years and has lived in the same house for sixteen. He notes that he never failed a drug test and that his neighbor has never had any problems with Horton or his friends. This is some evidence of stability, but there was considerable evidence that Horton=s home would not be a safe environment for S.S.
Horton=s family service plan required him to stay away from people with a criminal history. He did not do this. Horton=s brother, Durrell Horton, has lived with him subsequent to S.S.=s birth. Durrell has been convicted of sexual assault of a child. Horton=s cousin, Sammy Desmond Johnson, also lived with Horton for approximately six months while S.S. was in foster care. Johnson was arrested for theft in the summer of 2004 and has been in prison for sexual assault and drug charges.
Horton admitted that the Department told him he needed to Akeep away the gang bangers and the drug dealers@ from his house. He admitted that he had gang bangers and drug dealers coming over to his house Aabout two or three times a day, whenever they was in the neighborhood.@ The Department discovered that Horton was in a gang and that all of his friends were in gangs. His house had a sign which warned other gangs to stay away.[3]
Salazar claimed that she and Horton smoked marihuana together and that he provided her with crack cocaine twice during her pregnancy. She testified that he also provided her with crack cocaine three months after she gave birth to S.S. Salazar testified that Horton=s friends were drug users and that most of them were gang members and dope dealers.
Horton has suffered from financial problems since S.S.=s birth. He has been behind on his rent and has had his gas, electricity, and water turned off for not paying his bills. Horton acknowledged that it could be dangerous for S.S. if she lived with him and his utilities were turned off.
The Department representatives testified that they talked to Horton about the friends he had coming in and out of his house. They encouraged him to change his social network. The Department was concerned about drug and crime problems. The Department was also concerned that Horton was unable to financially provide for S.S. and that he lacked basic parenting abilities. The Department representatives described his difficulty understanding how to prepare a bottle and change a diaper. Horton was provided frequent training on these issues, but he had difficulty retaining the concepts from week to week. Horton was told that it was his responsibility during a visitation session to feed S.S. and change her diaper. He would tell the Department representatives that he had done so. However, the Department representatives reported that it was obvious that her diaper had not been changed and that she had not been fed.
S.S.=s caseworker talked to Horton about day care. Horton advised her that he had friends who could watch S.S. The caseworker attempted to explain that this was not suitable because Horton did not have any reliable friends that he could count on from day-to-day and that S.S. needed more structure, but he did not ever seem to understand the severity of the situation.
The Department also was concerned about Horton=s house because it had dangerous conditions for small children. A front window was broken out, and the glass had been replaced with peg board. The Department representatives found lighter fluid and an open book of matches beside it on the ground. The trash can was full of beer bottles. The Department noticed no preparations being made for having a small child in the home. Horton never obtained a bed or other things a small child would need.
The evidence is legally and factually sufficient to support the trial court=s finding that Horton was unable to provide S.S. with a safe environment. In light of our previous holdings, the evidence is legally and factually sufficient to support the trial court=s finding that Horton constructively abandoned S.S. Horton=s first issue is overruled.
Is Termination In S.S.=s Best Interest?
There is a strong presumption that the best interest of the child is served by keeping custody in the natural parent. In re D.M., 58 S.W.3d 801, 814 (Tex. App.CFort Worth 2001, no pet.). The factors which a court should consider when determining the best interest of the child include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the parental ability of the individuals seeking custody; (4) the programs available to assist these individuals to promote the best interest of the child; (5) the plans for the child by these individuals or by the agency seeking custody; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Best interest does not require proof of any unique set of factors, nor does it limit proof to any specific factors. In re D.M., 58 S.W.3d at 814.
The Department placed S.S. with a foster family, the Shermans, shortly after her birth. The Department=s plan is for the foster family to adopt S.S. Children need stability and structure. See Salas v. Tex. Dep=t of Protective and Regulatory Servs., 71 S.W.3d 783, 792 (Tex. App.CEl Paso 2002, no pet.). The Shermans demonstrated that they have both. They have been married for ten years and have three sons. Mr. Sherman is the general manager of a car dealership group. Mrs. Sherman is a stay-at-home mother. They also demonstrated their ability to care and provide for S.S. Mrs. Sherman was required to carry S.S. in a baby sling for twenty-two or twenty-three hours a day when she was first born because S.S. was exposed to drugs in utero and had no prenatal care.[4] This resulted in S.S. weighing just over five pounds and having a very strong startle reflex. At trial, S.S. was in the ninety-fifth percentile for weight and height and was doing well developmentally. She recognizes Mr. and Mrs. Sherman as her parents.
Using the factors from Holly, 544 S.W.2d at 371-72, we find that this evidence, coupled with the evidence of constructive abandonment previously discussed, is legally and factually sufficient to support the trial court=s finding that termination of the parent-child relationship between Horton and S.S. was in the child=s best interest. Horton=s second issue is overruled.
Conclusion
We have considered each of Horton=s issues, and each is overruled. Accordingly, the judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
May 11, 2006
Panel consists of: Wright, C.J., and
McCall, J., and, Strange, J.
[1]The first was dated October 28, 2003. The second, June 23, 2004; and the last, October 19, 2004.
[2]Horton=s family service plans required him to submit to drug screening. Horton took and passed one test. He refused subsequent requests for a UA.
[3]The sign said, A[N]o set tripping.@ According to Horton, this means Adon=t trespass on another gangster=s territory.@
[4]The Department records indicated that S.S. tested positive for methamphetamine and cocaine at birth.