|
|
NUMBER 13-05-063-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
IN THE INTEREST OF C.G., A CHILD,
On appeal from the 36th District Court
of Bee County, Texas.
M E M O R A N D U M O P I N I O N
Before Chief Justice Valdez and Justices Castillo and Garza
Memorandum Opinion by Chief Justice Valdez
Appellants, Manuela Galarza and Rito Salas, Jr., challenge the legal and factual sufficiency of the evidence to support the termination of their parental rights as to their minor child, C.G. On appeal, appellants raise six issues, which can be properly narrowed and addressed as two: (1), the evidence is legally insufficient to support termination under Texas Family Code Sections 161.001 (D), 161.001 (E), and 161.001 (2); and (2) the evidence is factually insufficient to support termination under Texas Family Code Sections 161.001 (D), 161.001 (E), and 161.001 (2). We affirm.
I. Background
Appellants began dating in 1994 while Galarza was married to Benito Buentello, Jr. Galarza and Buentello had three children: C.B., M.J.B., and M.G.B. Appellants then had their first child, M.S., on March 25, 2000. On March 3, 2001, Child Protective Services (ACPS@) received a report alleging that Salas had sexually abused C.B. Jose Vallejo, a CPS caseworker, investigated the complaint by interviewing the appellants, the children, and other collateral witnesses. Vallejo concluded there was Areason to believe@ that sexual abuse had occurred. Apart from that allegation, Salas was also accused of physically abusing Galarza in front of the children. Appellants and Buentello voluntarily relinquished their respective parental rights as to the four children on February 1, 2002, and the court signed the termination decree on May 13, 2002.
Appellants= second child, C.G., was born on September 10, 2002. In October 2003, CPS received a referral of Aneglectful supervision@ regarding C.G. The referral stemmed from appellants= failure to adhere to provisions of their prior termination decree and voluntary relinquishments of their other children. Although C.G. was not a party to the prior decree or relinquishment, CPS alleges that their provisions also relate to C.G. Salas=s alleged past acts of sexual and physical abuse deemed him a Asexual predator,@ which according to CPS, should disallow him from having unsupervised conduct with any children. Further, Galarza allegedly failed to provide for C.G.=s safety. CPS contended that Galarza maintained contact with Salas, which endangered C.G.=s well-being. Also, Maria Moreno, Salas=s mother, allegedly allowed Salas to take C.G. to the park unsupervised while C.G. was living with her; Galarza left C.G. in Moreno=s care for a few months in order to find work.
On November 6, 2003, in a Temporary Order Following Adversary Hearing, the Texas Department of Protective and Regulatory Services (ATDPRS@) was appointed Temporary Managing Conservator of C.G., and appellants were appointed Temporary Possessory Conservators. Appellants were ordered to complete mandatory psychological exams, counseling, and classes in order to attempt to qualify to regain custody of C.G.
The State subsequently sought permanent termination of appellants= parental rights to C.G. On September 10, 2004, a jury found that the grounds pled for termination were proven by clear and convincing evidence; more specifically, that appellants Aknowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of the child,@ and Aengaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child.@ Appellants= parental rights were terminated.
II. Standard of Review
In parental termination proceedings, the State must prove its allegations with clear and convincing evidence. Tex. Fam. Code Ann. ' 161.001 (Vernon 2002). "Clear and convincing evidence" is "'that 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.'" In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)).
III. Legal and Factual Sufficiency of the Evidence
When we review legal sufficiency, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge in that party=s favor every reasonable inference deducible from the evidence. See Formosa Plastics Corp. U.S.A. v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). We disregard all contrary evidence that a reasonable jury could have disbelieved. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
When reviewing a challenge to the factual sufficiency of evidence, we must determine whether "the evidence is such that 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 at 25; see In re J.F.C., 96 S.W.3d at 266. We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the evidence in favor of the finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient "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." Id.
IV. Applicable Law
Before parental rights may be terminated, the evidence must establish (1) a statutory ground for termination and (2) the termination is in the best interest of the child. Tex. Fam. Code Ann. ' 161.001 (1), (2) (Vernon 2002). An affirmative finding by clear and convincing evidence satisfying any one of the subsections of section 161.001 of the Texas Family Code is sufficient to terminate parental rights. See In re S.F., 32 S.W.3d 318, 320 (Tex. App.BSan Antonio 2000, no pet.). The two statutory grounds at issue here are sections 161.001 (D) and (E).
Under subsection (D), the court may order termination of the parent‑child relationship if the court finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well‑being of the child. Tex. Fam. Code Ann. ' 161.001 (D). Under subsection (E), the court may order termination of the parent‑child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well‑being of the child. Tex. Fam. Code Ann. ' 161.001 (E).
V. Analysis
In conducting this analysis, we address appellants= legal and factual sufficiency challenges together in reviewing sections 161.001 (D) and (E); thereafter, we examine whether the State satisfied section 161.001 (2)=s Abest interests of the child@ test.
A. Family Code Sections 161.001 (D) and (E)
By their first and second issues, appellants argue the evidence is legally and factually insufficient to sustain the termination of their parental rights under Texas Family Code Sections 161.001 (D) and (E). The State contends that the evidence is sufficient because of the following: (1) a history of family violence; (2) the allegation of sexual abuse; and (3) appellants= refusal to adhere to the Family Service Plan provided for by CPS.
1. Family Violence
Galarza alleged that several incidents of family violence occurred during her relationship with Salas; the evidence addresses three pertinent incidents. On June 26, 2000, police officers went to appellants= residence to answer a domestic violence call. Galarza accused Salas of strangling her; however, Salas insists they only had a verbal confrontation. On another occasion, Salas allegedly attacked Galarza while she was holding one of her children. Most notably, on November 29, 2000, Galarza filed a police report alleging that Salas assaulted her in front of C.B. and M.G.B. On that day, Salas had refused to take Galarza into town to pick up supplies. Galarza proceeded to walk to town with C.B. and M.G.B. Salas then drove up to the three of them in his car, stopped, put the children in the car, and then pulled Galarza=s hair and slapped her at least three times. He threw her in the car and drove off. Almost immediately, Salas became enraged and slapped Galarza again. He told her and the children to get out of the car and then drove off. When asked about the various incidents of violence, Galarza testified that she knew Salas posed a risk to her and her children.
2. Allegation of Sexual Abuse
Salas was accused of sexually abusing his step-daughter, C.B. Salas denied the allegation, and Galarza testified that she did not believe her daughter=s outcry. Appellants argue that no criminal charges were ever brought against Salas; therefore, it was improper to terminate their parental rights. However, witness testimony from Dora Montoya, a former supervisor of the Bee County CPS office, implies that formal charges were never brought against Salas because he and Galarza voluntarily relinquished their parental rights in exchange for CPS not further pursuing its sexual abuse investigation. Neither Galarza nor Salas refuted Montoya=s claim. No formal criminal charges were ever pursued against Salas because the children were theoretically out of harm=s way. Galarza testified that the reason both she and Salas relinquished their rights were so that CPS Awould stop hassling us.@
3. Refusal to Adhere to Family Safety Plan
Appellants, especially Salas, failed to adhere to many of the requirements of CPS=s Family Safety Plan. The plan was developed and presented to appellants in the hope they could redeem themselves of allegations of neglect and be reunited with C.G. In a Temporary Order following an Adversary Hearing, the Court ordered appellants to comply with certain conditions in order to regain custody of C.G.: (1) psychological or psychiatric evaluations, (2) counseling, (3) parenting classes, and (4) compliance with CPS=s safety plan. Salas was ordered to comply with other conditions as well: (1) drug and alcohol assessments and testing, (2) anger management classes/counseling, (3) sex offender counseling, and (4) compliance with a MHMR treatment plan.
The record shows that Galarza successfully completed most of her requirements. However, she failed to maintain a stable residence in which to care for C.G.; the record shows Galarza lived a nomadic lifestyle, moving between Beeville, Victoria, and Del Rio. Aaron Rhyne, a licensed psychologist who counseled Galarza, took issue with the fact she could not settle in a Astable@ place. At the time of trial, Rhyne thought it would be difficult for Galarza to care for C.G. because Ashe is not stable at this time in affording the child housing.@
In contrast, the evidence shows that Salas blatantly failed to strictly adhere to his conditions. With regard to the psychological evaluation, he was ordered to complete the evaluation on or before December 5, 2003; however, he did not complete it until July 27, 2004, and offered no valid explanation for the long delay. Also, Salas did not complete any of his classes. He blames CPS for failing to schedule any appointments for him; he contends they were Aout to get@ him.
a. Analysis under Section 161.001 (D)
Appellants contend they did not knowingly place or allow C.G. to remain in conditions or surroundings which endangered her physical or emotional well-being. Under section 161.001 (D) of the Texas Family Code, we must examine the time before C.G.=s removal to determine whether the environment itself posed a danger to her well-being. See Ybarra v. Tex. Dep=t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.BCorpus Christi 1993, no writ); In re S.H.A., 728 S.W.2d 73, 84 (Tex. App.BDallas 1987, writ ref=d n.r.e.). AEndanger@ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment; it means to expose to loss or injury, to jeopardize. Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re A.B., 125 S.W.3d 769, 776-77 (Tex. App.BTexarkana 2003, pet. denied). Thus, surroundings can endanger the well-being of a child without the child suffering actual physical injury. In re A.B., 125 S.W.3d at 777.
Being exposed to physical violence endangers a child=s well-being; likewise, and without question, sexual abuse is conduct that endangers a child's physical or emotional well‑being. See id. at 775; In re R.G., 61 S.W.3d 661, 667 (Tex. App.BWaco 2001, no pet.); In re King, 15 S.W.3d 272, 276 (Tex. App.BTexarkana 2000, pet. denied). Parental knowledge that an actual offense has occurred is not necessary; it is sufficient that the parent was aware of the potential for danger and disregarded that risk. In re A.B., 125 S.W.3d at 775; In re R.G., 61 S.W.3d at 667‑68; In re Tidwell, 35 S.W.3d 115, 118 (Tex. App.BTexarkana 2000, no pet.). We may infer that the aggravated sexual assault of a child in the home is conduct which will endanger the physical and emotional well‑being of other children in the home who may discover the abuse or may be abused themselves. In re R.W., 129 S.W.3d 732, 742 (Tex. App.BFort Worth 2004, pet. denied); In re King, 15 S.W.3d at 276. Thus, Salas=s alleged sexual abuse of C.B. created surroundings which endangered C.G. Also, the fact that Galarza knowingly left C.G. with Moreno, Salas=s mother, for several months endangered C.G. because of the likelihood Moreno would allow her son access to C.G. Moreno admitted to Montoya that she allowed Salas to take C.G. to a park unsupervised. There is enough legal and factual sufficient proof to support the finding by clear and convincing evidence that appellants knowingly placed or knowingly allowed C.G. to remain in conditions or surroundings which endangered her physical or emotional well-being.
b. Analysis under Section 161.001 (E)
Here, our inquiry, unlike that of section 161.001(D), focuses on conduct of either the parent or a person with whom the parent has placed the children. See In re A.B., 125 S.W.3d at 777. The evidence under subsection (E) must show a "course of conduct," while subsection (D) permits termination based on a single act or omission. Id. We use the same definition of "endanger" as we do in our inquiry under subsection (D). That is, we look for more than a threat of metaphysical injury or the possible ill effects of a less‑than‑ideal family environment; we look for a course of conduct which exposes the children to loss or injury or which jeopardizes the children. See Boyd, 727 S.W.2d at 533. Here, we look not only at evidence regarding the parent's active conduct, but also evidence showing the parent's omissions or failures to act. In re A.B., 125 S.W.3d at 777.
Galarza and Moreno were well aware of the sexual abuse allegations brought against Salas. Galarza=s placement of C.G. with Moreno for several months represents a course of conduct which endangered C.G.=s well-being, given that Moreno allowed Salas to have unsupervised visitation with C.G. The evidence reveals at least one incident where Moreno allowed Salas to take C.G. to the park unsupervised.
Examining all the evidence in the light most favorable to the findings, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that the trial court=s enumerated findings were true. See In re J.F.C., 96 S.W.3d at 266. Furthermore, giving due consideration to evidence that the factfinder reasonably could have found to be clear and convincing, the evidence is such that the trial court reasonably could have formed a firm belief or conviction about the truth of the allegations against appellants. See Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25. We conclude these enumerated findings are supported by clear and convincing evidence. Thus, appellants= legal and factual sufficiency challenges are unfounded, and we overrule these issues on appeal.
B. Family Code Section 161.001 (2)
Appellants also argue that the evidence is insufficient to support the court=s finding that the termination was in the best interest of C.G. The best interest of the child may be proven by the same evidence used to establish the occurrence of the acts and omissions listed in section 161.001 (1) of the family code. In re C.H., 89 S.W.3d at 28. Further, the Texas Supreme Court has recognized several other factors that may be considered when determining whether termination is in the child=s best interest: (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 these individuals, (6) the plans for the child by these individuals, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-372 (Tex. 1976). This list, while instructive, is not exhaustive. Id.; see In re C.H., 89 S.W.3d at 27. Nor is evidence of every factor required to form a strong conviction or belief that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 27.
Considering all the evidence of past family violence and the allegation of sexual abuse coupled with the observance of a majority of the Holley factors in this case, we conclude that the trial court could have reasonably found that termination of appellants= parental rights is in the best interest of C.G. Appellants= conduct, especially Salas=s, raised concerns about several of the Holley factors. As discussed above, Galarza failed to provide C.G. with a stable home environment and failed to keep her away from Salas. Also, Galarza was unable to provide the court with a plan for the future care of C.G. Because of the past allegation of sexual abuse, Salas posed a physical and emotional danger to C.G. and realistically did not appear to be able to care for C.G.=s needs now or in the future. His disregard for completing, much less attending, any of his classes demonstrates a lack of adequate parental abilities. Much like Galarza, Salas also did not have a plan for C.G.=s future.
Viewing all evidence in the light most favorable to the finding, we conclude it is legally sufficient to support the court=s finding that termination is in the child=s best interest. See In re J.F.C., 96 S.W.3d at 266. Further, giving due consideration to evidence that the factfinder could reasonably have found to be clear and convincing, we also conclude that the evidence is factually sufficient to support the finding. See Tex. Fam. Code Ann. ' 101.007; In re C.H., 89 S.W.3d at 25; see also In re J.F.C., 96 S.W.3d at 266. Appellants= issues are overruled.
Conclusion
The judgment of the trial court is affirmed.
Rogelio Valdez,
Chief Justice
Memorandum Opinion delivered and filed
this 26th day of January, 2006.