|
|
|
|
Opinion filed September 25, 2008
In The
Eleventh Court of Appeals
__________
No. 11-08-00065-CV
__________
IN THE INTEREST OF R.G.B.R., A CHILD
On Appeal from the 29th Judicial District Court
Palo Pinto County, Texas
Trial Court Cause No. C41891
M E M O R A N D U M O P I N I O N
This is an accelerated appeal from the trial court=s order terminating appellants= parental rights. We affirm.
Background Facts
Lisa Anna Rendon and Gustovo Barboza, Jr., appellants, are the parents of R.G.B.R. The Department of Family and Protective Services filed a Petition for Protection of a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship. The trial court entered an order allowing for emergency removal of the child. The department implemented a service plan for appellants with the goal of reunification. Rendon and Barboza failed to comply with the service plan, and the department sought termination of their parental rights.
After a bench trial, the court entered an order terminating both Rendon=s and Barboza=s parental rights to the child. The trial court found by clear and convincing evidence that Rendon:
(1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child B Tex. Fam. Code Ann. ' 161.001(1)(E) (Vernon Supp. 2008);
(2) failed to comply with the provisions of a court order that specifically established the actions necessary for Rendon to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child=s removal from the parents under Chapter 262[1] for the abuse or neglect of the child B Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon Supp. 2008); and (3) used a controlled substance, as defined by Chapter 481[2] of the Health and Safety Code, in a manner that endangered the health and safety of the child, and (1) failed to complete a court-ordered substance abuse treatment program, or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance B Tex. Fam. Code Ann. ' 161.001(1)(P) (Vernon Supp. 2008).
The trial court further found by clear and convincing evidence that Barboza:
(1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child B Tex. Fam. Code Ann. ' 161.001(1)(E) (Vernon Supp. 2008); and
(2) failed to comply with the provisions of a court order that specifically established the actions necessary for Barboza to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child=s removal from the parents under Chapter 262 for the abuse or neglect of the child B Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon Supp. 2008).
Barboza=s Statement of Points
Barboza did not preserve any issues for review on appeal because he did not file a statement of points as required by Tex. Fam. Code Ann. ' 263.405(b), (b-1) (Vernon Supp. 2008). The statute provides:
(b) Not later than the 15th day after the date a final order is signed by the trial judge, a party who intends to request a new trial or appeal the order must file with the trial court:
(1) a request for a new trial; or
(2) if an appeal is sought, a statement of the point or points on which the party intends to appeal.
(b-1) The statement under Subsection (b)(2) may be combined with a motion for a new trial.
The statute further provides in relevant part:
The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.
Tex. Fam. Code Ann. ' 263.405(i) (Vernon Supp. 2008).
In this case, the order of termination was signed on January 28, 2008. Barboza filed a notice of appeal on February 15, 2008. Barboza did not file a statement of points stating the issues on which he intends to appeal. The statute is clear that a party who does not file a statement of the points on appeal does not preserve any issues for appeal. Section 263.405(b); In re M.N., 230 S.W.3d 248, 249 (Tex. App.CEastland 2007, pet. filed), rev=d & remanded on other grounds, No. 07-0698, 2008 WL 3991189 (Tex. Aug. 29, 2008). Not only does the party waive those issues, but the statute also prohibits the appellate court from considering any issues that are not contained in a statement of points on appeal. In re M.N., 230 S.W.3d at 249-50. Because we cannot consider Barboza=s issues on appeal, we affirm the portion of the judgment that terminates his parental rights to R.G.B.R.
Rendon=s Issues on Appeal
Rendon asserts on appeal that the trial court erred in determining that she committed one or more acts prohibited under Tex. Fam. Code Ann. ' 161.001(1) (Vernon Supp. 2008). She also asserts that the trial court erred in determining that termination of Rendon=s parental rights was in the best interest of the child.
Standard of Review
Due process requires that the grounds for termination be established by clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982)); In re J.P.H., 196 S.W.3d 289, 292 (Tex. App.CEastland 2006, no pet.). This requires a 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. In re J.P.H., 196 S.W.3d at 292.
When conducting a legal sufficiency review, we review all of 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. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266; In re J.P.H., 196 S.W.3d at 292. We must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Phillips v. Tex. Dep=t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.).
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 factfinder could form a firm belief or conviction that grounds for termination exist. Id. We also consider whether any disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.
Grounds for Termination
Rendon asserts in her brief that extenuating circumstances made it impossible for her to comply with the court=s order establishing the actions necessary for her to obtain the return of R.G.B.R. She admits to not completing the individual counseling sessions but states that her failure to complete the sessions was due to the counselor terminating her sessions. She does not offer any argument as to why she did not complete the other requirements of the order.
Rendon does not challenge the trial court=s finding on the other two grounds supporting termination; specifically that she knowingly placed the child in an environment that endangered the physical and emotional well-being of the child and that she used a controlled substance in a manner that endangered the child. Only one finding alleged under Section 161.001(1) is necessary for a judgment of termination. In re D.M., 58 S.W.3d 801, 813 (Tex. App.CFort Worth 2001, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex. App.CSan Antonio 2000, no pet.). Because Rendon does not challenge the trial court=s finding on the above two grounds, we overrule her first issue on appeal.
Best Interest of the Child
In parent-child termination proceedings, there is a strong presumption that the child=s best interest is usually served by keeping him with his natural parents. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re D.M., 58 S.W.3d at 814. The Texas Supreme Court has recognized several factors to consider 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 that may indicate the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Id. at 371-72. This list of factors is not exhaustive, and no single consideration is controlling. In re D.M., 58 S.W.3d at 814.
Courtney Davis, a caseworker with Child Protective Services, testified that R.G.B.R. was removed from the care of Rendon and Barboza due to their drug use. Davis testified that the apartment where the child was living before removal was infested with cockroaches and cockroach nests. She testified that there were bags of trash everywhere and that the oven was on with the door open to heat the apartment. She further testified that R.G.B.R. had not eaten in four days. She also stated that, at the time of trial, Rendon and Barboza lived in a motel and did not have suitable and stable housing.
Davis testified that Rendon was to complete a plan of service that included parenting classes, psychological evaluations, drug assessments, anger management, homemaking skills classes, and individual counseling. Davis stated that Rendon completed a drug assessment and the recommended twenty-eight day inpatient program. Davis further testified that Rendon relapsed and was admitted into a second twenty-eight day inpatient program. Rendon completed the twenty-eight day program and extended her stay for fourteen more days. Davis testified that Rendon was released from rehab in December. Davis also testified that Rendon had used drugs throughout the case and that she had only been clean for two months. Davis testified that Rendon had completed a psychological assessment but did not follow through with any of the recommendations from that assessment. Davis further testified that Rendon had not completed parenting classes or anger management classes.
Davis testified that R.G.B.R. was living with his paternal grandmother and that she wants to adopt him. Davis testified that, due to Rendon=s extensive drug use and her inability to complete the programs offered, she had failed to demonstrate that she could make the changes necessary to parent R.G.B.R. Davis recommended termination of Rendon=s parental rights.
Rendon testified that she has abused drugs for twenty-six years. She testified that she completed two twenty-eight day inpatient programs. Rendon testified that the last time she tested positive for drugs and the last time she used drugs was October 5, 2007.
Rendon testified that she had a thirteen-year-old and fifteen-year-old who lived with her mother because of her incarceration. She testified that she raised those children A[o]ff and on.@ R.G.B.R. was six years old. Rendon had been incarcerated for fourteen months since R.G.B.R.=s birth. Rendon testified that she would be able to care for R.G.B.R A[o]nce we get stable and get on our feet.@ Rendon testified that she was working on her drug problem by taking it one day at a time. Rendon testified that she and Barboza currently live in a motel in Fort Worth. She further testified that Texas Inmate Services was helping them find an apartment and that they hope to be out of the motel by mid-February. Rendon testified that she had been working at Denny=s for two and one-half weeks.
The evidence demonstrates that Rendon was not providing R.G.B.R. with a stable and secure home environment or meeting his emotional and physical needs. R.G.B.R. was removed from a roach-infested apartment that was not heated properly, and he had not been fed in four days. Further, there was no evidence that she would be able to sustain a stable and suitable environment in the future. Rendon and Barboza were living in a motel. They hoped to be in an apartment by mid- February. At the time of trial, Rendon had only been out of rehab and clean for two months and had only been employed for two and one-half weeks. R.G.B.R. was in a stable environment outside of Rendon=s care, and his paternal grandmother wanted to adopt him.
Based on this evidence, the trial court did not err in finding that termination of Rendon=s parental rights was in R.G.B.R.=s best interest. We overrule appellant=s second issue on appeal.
Conclusion
We affirm the judgment of the trial court.
RICK STRANGE
JUSTICE
September 25, 2008
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Tex. Fam. Code Ann. ch. 262 (Vernon 2002 & Supp. 2008).
[2]Tex. Health & Safety Code Ann. ch. 481 (Vernon 2003 & Supp. 2008).