Affirmed and Memorandum Opinion filed May 7, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00754-CV
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IN THE INTEREST OF J.S.G. AND J.A.G., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2007-06585J
M E M O R A N D U M O P I N I O N
In this accelerated appeal, appellant, Ada Guerrero, challenges the trial court=s decree terminating her parental rights with regard to her minor children, J.S.G. and J.A.G. In four issues, appellant contends that the evidence is legally and factually insufficient to: (1) support the grounds for termination under subsections 161.001(1)(D) and (O); (2) support the trial court=s best interest finding in favor of termination; and (3) rebut the parental presumption under section 153.131 of the Texas Family Code. We affirm.
I. BACKGROUND
Appellant was the mother of three children: C.G., J.S.G., and J.A.G. On June 18, 2007, C.G. died while in appellant=s care.[1] Prior to C.G.=s death, appellee, the Texas Department of Family & Protective Services (Athe Department@), had some level of involvement with appellant and her three children. Lee Welborn, a caseworker with Child Advocates, Incorporated, testified that he visited appellant=s home twice in 2006. Welborn had a number of concerns regarding the children=s living environment. There were holes in the walls and floors of the home, and an upstairs room had an unsecured floor, which, according to Welborn, Asagged and felt like you [would] fall through.@ Welborn further testified that there were hazardous chemicals easily accessible to the children, including brake fluid and household cleaners. In the front yard, there was an old water well that posed a serious hazard to the children. Additionally, Welborn observed exposed electrical cords running across the floor inside the home. Apparently, because half of the home was without electricity, electrical cords were extended from the portion of the home with electricity to the part without to provide electric power to that portion of the house. Although the Department had distinct concerns with respect to the structural integrity of the home, the children were not removed at that time.
On June 18, 2007, the Department was notified that C.G. had died in appellant=s care and speculated that his death was caused, at least in part, by appellant=s medical neglect. After C.G.=s death, the Department initiated an investigation focused on two concerns that potentially impacted the physical and emotional well-being of J.S.G. and J.A.G.: (1) the condition of appellant=s home; and (2) appellant=s role in C.G.=s death. Roy Willeford, a special investigator for the Department, testified that he visited appellant=s home two days after C.G.=s death. Although Willeford noticed that J.S.G. and J.A.G. were Awell-nourished, happy, clean, and dressed appropriately,@ he also observed a number of hazardous conditions in the home. Willeford testified that the home was Aextremely dirty,@ and the carpet was filled with Acrustations.@ The condition of the carpet was of particular concern because J.A.G., one year old at the time, was still crawling. Willeford was also concerned with an exposed gas water heater in the kitchen that had no precautionary barriers to prevent injury to a child. Additionally, the stairway had no handrails, and the stove was in a deplorable condition. Willeford further testified that there was a considerable amount of rotten wood immediately outside of the house.
Shortly after his first visit to appellant=s home, Willeford received a second referral alleging that appellant and other occupants were using illegal drugs in the home. The referral alleged that appellant=s teenage nephew, an occupant of the home, was smoking crack on the front porch and that appellant and her sister, Maryann Guerrero Gonzalez, another occupant of the home, used illegal drugs. Responding to this referral, Willeford visited the home again and made contact with Gonzalez. Gonzalez showed Willeford some of the repairs that had been made since his first visit; however, Willeford noticed still other safety concerns, including the exposed gas water heater. When Willeford questioned Gonzalez about the allegations made in the referral, she denied using illegal drugs. She did, however, acknowledge that her teenage son abused illegal drugs, but indicated that he no longer lived in the home. Gonzalez told Willeford that her teenage son was living with his grandmother, but was unable to provide the physical address. Gonzalez further indicated that her son occasionally visited her at her house, but he did not stay overnight. The Department also learned that Gonzalez=s son was on probation for indecency with a child.[2]
To disprove the allegations of drug use made in the referral, appellant and Gonzalez agreed to submit to drug tests. Accordingly, the Department scheduled appointments for drug testing for both appellant and Gonzalez; however, they failed to appear for the scheduled testing. Additionally, the Department=s investigation revealed that appellant medically neglected C.G. in the last years of his life. Dr. Ana Lopez, the assistant medical examiner who performed C.G.=s autopsy, testified that C.G. had been medically neglected since 2003. Specifically, Dr. Lopez testified that (1) C.G. had multiple decubitus ulcers on his body that were not properly treated; (2) despite his medical condition, his weight was extremely low; (3) he continually missed doctor=s appointments and had not seen a doctor since 2003; (4) he was improperly fed; and (5) his colostomy sites had not been properly treated. Moreover, appellant was unable to produce or locate C.G.=s medical or pharmacy records from 2003 forward. Dr. Lopez opined that C.G. had been medically neglected in the last years of his life and that appellant had hastened his death.
On July 12, 2007, J.S.G. and J.A.G. were removed from appellant and placed in the care of their great aunt, Grace Gonzalez. The two children have remained in relative placement ever since. On August 29, 2007, appellant and the Department entered into a family service plan to reunify appellant with her two children. The service plan identified a number of concerns: (1) safety and sanitation issues regarding appellant=s home; (2) another resident in the home charged or convicted of a sexual offense against a child; (3) appellant=s medical neglect of C.G.; (4) appellant=s criminal history;[3] and (5) appellant=s failure to appear for previous drug screening. The family service plan also required, among other things, that appellant:
(a) submit to a psychological examination,
(b) attend and complete drug and alcohol treatment,
(c) attend individual grief and loss counseling,
(d) attend and complete parenting classes, and
(e) find and maintain employment.
On September 11, 2007, the trial court signed an order reiterating the family service plan=s requirements and ordered appellant to complete the requirements outlined in the plan. Appellant began to perform the requirements identified in the plan, but she failed to complete all of the them. The Department proceeded with termination proceedings, and after a trial to the bench, the trial court found by clear and convincing evidence that: (1) appellant knowingly placed or knowingly allowed her children to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) appellant failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children=s removal under chapter 262 for abuse or neglect of the children; and (3) termination would be in the best interest of the children. The trial court entered a decree terminating appellant=s parental rights.[4]
On appeal, appellant challenges the trial court=s decree of termination, contending that the evidence is legally and factually insufficient to support the trial court=s finding on each predicate ground for termination and its best interest finding in favor of termination. Appellant further contends that the evidence is legally and factually insufficient to rebut the parental presumption under section 153.131 of the Family Code.
II. STANDARDS OF REVIEW
The natural relationship between parents and their children is one of constitutional dimension. In re J.W.T., 872 S.W.2d 189, 194B95 (Tex. 1994); In re U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). A parent=s right to Athe companionship, care, custody and management@ of her children is a constitutional interest Afar more precious than any property right.@ Stanley v. Illinois, 405 U.S. 645, 651 (1972); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings should be strictly scrutinized. Holick, 685 S.W.2d at 20B21; In re U.P., 105 S.W.3d at 229. However, parental rights are not absolute, and it is vital that the emotional and physical interests of the children not be sacrificed at the expense of preserving those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
To terminate a parent-child relationship, a trial court must find by clear and convincing evidence that (1) the parent committed one or more acts specifically identified in the Texas Family Code as grounds for termination, and (2) termination is in the best interest of the child. See Tex. Fam. Code ' 161.001; Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Clear and convincing evidence is the 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 proved. Tex. Fam. Code ' 101.007. There is a strong presumption that the best interest of the child is served by preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). The burden of proof is upon the party seeking to terminate the parent-child relationship. See In re J.F.C., 96 S.W.3d 256, 265B66 (Tex. 2002). If the trial court terminated the parent-child relationship on multiple bases under section 161.001(1), we may affirm on any one ground, as only one predicate violation under section 161.001(1) is necessary to a termination judgment. In re S.A.P., 169 S.W.3d 685, 695 (Tex. App.CWaco 2005, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex. App.CSan Antonio 2000, no pet.).
There is a distinction between legal and factual sufficiency with respect to how the evidence is reviewed when the burden of proof is clear and convincing evidence. In re J.F.C., 96 S.W.3d at 266. In a legal sufficiency review, we look at all 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. Id.; In re J.I.T.P., 99 S.W.3d 841, 843B44 (Tex. App.CHouston [14th Dist.] 2003, no pet.). To give appropriate deference to the factfinder=s conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. In re J.F.C., 96 S.W.3d at 266. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.; In re J.I.T.P., 99 S.W.3d at 844. If, after conducting our review of the record evidence, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then the evidence is legally insufficient. In re J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, we ask 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. A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have credited in favor of the finding. In re J.F.C., 96 S.W.3d at 266. If, in the 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 about the truth of the State=s allegations, then the evidence is factually insufficient. Id. We must give due deference to the jury=s factfindings, and we should not supplant the jury=s judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
In the present case, the trial court terminated appellant=s parental rights because there was clear and convincing evidence that she: (1) knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; and (2) failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children=s removal under chapter 262 of the Family Code for the abuse or neglect of the children. See Tex. Fam. Code '' 161.001(1)(D), (O).
III. SECTION 161.001(1)(O): NONCOMPLIANCE WITH COURT ORDER
In her second issue, appellant contends that the evidence is legally and factually insufficient to support the trial court=s termination finding under subsection 161.001(1)(O). To terminate parental rights based upon subsection 161.001(1)(O), the trial court must find by clear and convincing evidence that the parent failed to comply with the provisions of a court order specifically establishing the actions necessary for the parent to obtain the return of the child who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child=s removal from the parent under Family Code chapter 262 for the abuse or neglect of the child. See id. ' 161.001(1)(O).
Appellant does not dispute that the children were in the Department=s custody for at least nine months or that she did not comply with the trial court=s order requiring her to complete the requirements identified in the family service plan. Rather, appellant argues that the Department did not meet its burden of proof as to the element under subsection 161.001(1)(O) requiring the children subject of the suit be removed as a result of abuse or neglect. Specifically, appellant contends that the Department failed to meet its burden under subsection (O) because J.S.G. and J.A.G. were not removed for abuse or neglect specific to them, but were removed for the alleged neglect of C.G., a child not subject of the suit.
The Department disputes appellant=s contention that subsection 161.001(1)(O) requires the children subject of the suit be removed as a result of abuse or neglect. Citing to In re J.F.C., the Department argues that subsection (O) does not require a showing that J.S.G. and J.A.G were removed due to appellant=s abuse or neglect. 96 S.W.3d 256. In In re S.N., this Court rejected an argument identical to the Department=s contention in the instant case and concluded that removal as a result of abuse or neglect of the child is an element under subsection 161.001(1)(O). See In re S.N., C S.W.3d C, C, No. 14-07-00161-CV, 2009 WL 704724, at *5 (Tex. App.CHouston [14th Dist.] Mar. 5, 2009, pet. filed) (concluding that removal of the child as a result of Aabuse or neglect@ is a required element of subsection 161.001(1)(O)).
In S.N., this Court considered whether subsection 161.001(1)(O) required the State to prove by clear and convincing evidence that the child subject of the suit was removed under chapter 262 as a result of abuse or neglect. Id. at *4B5. The S.N. court first considered the Texas Supreme Court=s decision in J.F.C. and recognized that it did not address whether the child at issue was removed for abuse or neglect or if a showing of such fact was required under subsection (O). Id. Because the J.F.C. court did not address the child=s removal as a result of abuse or neglect and the court did not expressly conclude that removal under chapter 262 for abuse or neglect is not an element of subsection (O), the S.N. court concluded that it was required to adhere to the unambiguous language of subsection 161.001(1)(O). Id. After reviewing the plain and unambiguous language of subsection (O), this Court held that removal of the child as a result of A>abuse and neglect= is a required element of [sub]section 161.001(1)(O).@ Id.
Moreover, many of our sister courts have likewise held that removal of the child as a result of abuse or neglect is an element of subsection 161.001(1)(O). See In re A.A.A., 265 S.W.3d 507, 515 (Tex. App.CHouston [1st Dist.] 2008, pet. denied) (holding that subsection 161.001(1)(O) requires a showing that the child subject of the suit was removed under chapter 262 for the parent=s abuse or neglect); In re K.H., No. 12-05-00077-CV, 2006 WL 3211299, at *5 (Tex. App.CTyler Nov. 8, 2006, no pet.) (mem. op.) (recognizing Aabuse or neglect of the child@ as an element of subsection 161.001(1)(O)); In re S.A.P., 169 S.W.3d 685, 705B06 (Tex. App.CWaco 2005, no pet.). (pointing out that Aabuse or neglect of the child@ is required under subsection 161.001(1)(O)); In re M.B., No. 12-04-00350-CV, 2005 WL 3201071, at *4 (Tex. App.CTyler Nov. 30, 2005, no pet.) (mem. op.) (concluding that evidence established that child subject of suit was removed as a result of parent=s neglect pursuant to subsection 161.001(1)(O)); In re A.C., No. 12-04-00264-CV, 2005 WL 2404108, at *4 (Tex. App.CTyler Sept. 30, 2005, no pet.) (mem. op.) (recognizing Aabuse or neglect of child@ as an element of subsection 161.001(1)(O) and concluding that evidence sufficiently established that the children subject of the suit were removed as a result of parent=s neglect); In re M.B., 07-04-00334-CV, 2004 WL 2867544, at *2 (Tex. App.CAmarillo Dec. 14, 2004, no pet.) (mem. op.) (identifying Athe child=s removal from the parent as a result of abuse or neglect of the child@ as a required element of subsection 161.001(1)(O)).
Following our decision in S.N., we reject the Department=s argument and conclude that Aremoval as a result of abuse or neglect@ is an element of subsection 161.001(1)(O).[5] See In re S.N., 2009 WL 704724, at *5; Tex. Fam. Code ' 161.001(1)(O); see also In re A.A.A., 265 S.W.3d at 515; In re K.H., 2006 WL 3211299, at *5; In re S.A.P., 169 S.W.3d at 705B06; In re M.B., 2005 WL 3201071, at *4; In re A.C., 2005 WL 2404108, at *4; In re M.B., 2004 WL 2867544, at *2. We now must determine whether the Department proved by clear and convincing evidence that J.S.G. and J.A.G. were removed under chapter 262 as a result of abuse or neglect. See In re A.A.A., 265 S.W.3d at 515. Although appellant is correct that the Department considered appellant=s medial neglect of C.G. in requesting that J.S.G. and J.A.G. be removed, the record also reflects that appellant=s neglect of C.G. was only one of several reasons for removing J.S.G. and J.A.G.
In support of its removal request, the Department submitted the affidavit of Willeford to the trial court. In his affidavit, Willeford raised several reasons for the Department=s removal request, including appellant=s role in C.G.=s death and the children=s immediate living environment. With respect to the children=s living environment, Willeford identified the following concerns: (1) the structural integrity of the home; (2) an occupant convicted of a sexual offense against an 11-year-old child; (3) drug use by appellant and other occupants; and (4) appellant=s criminal history and outstanding arrest warrants. Based on these concerns and the Aneglectful supervision@ of the children, Willeford concluded that Athere [was] an immediate danger to the physical health or safety of [J.S.G.] and [J.A.G] in [the] home and it would be in their best interest to be placed in the protective custody of the Department.@ Willeford=s affidavit reflects that the Department sought to remove the children, in part, based upon the children=s immediate living environment and appellant=s neglectful supervision. See In re M.B., 2005 WL 3201071, at *4 (caseworker=s affidavit indicating that the child was removed for parent=s use of illegal drugs was sufficient to establish that the child was removed as a result of parent=s neglect).
Additionally, the trial court=s temporary order naming the Department as the temporary managing conservator found that there was sufficient evidence of (1) Aa danger to the physical health or safety of the children which was caused by an act or failure to act [by appellant] and for the children to remain in the home [was] contrary to the welfare of the children,@ (2) Aa substantial risk of a continuing danger if the children [were] returned home,@ and (3) Aa continuing danger to the physical health or safety of the children and for the children to remain in the home [was] contrary to the welfare of the children.@ See In re A.A.A., 265 S.W.3d at 516 (considering the trial court=s temporary orders as evidence of neglect of the child).
The evidence establishes that J.S.G. and J.A.G. were removed as a result of neglect specific to them by appellant. Because appellant does not dispute her failure to comply with the court order requiring completion of the family service plan, the evidence is legally and factually sufficient to support the trial court=s finding of termination under subsection 161.001(1)(O). We overrule appellant=s second issue.
IV. BEST INTEREST OF THE CHILDREN
In her third issue, appellant contends that the evidence is legally and factually insufficient to support the trial court=s best interest finding in favor of termination. See Tex. Fam. Code ' 161.001(2). A statutory act or omission under section 161.001(1) must be coupled with a finding that termination of the parent-child relationship is in the best interest of the child. In re C.M.C., 273 S.W.3d 862, 876 (Tex. App.CHouston [14th Dist.] 2008, no pet.). It is the Department=s burden to prove by clear and convincing evidence that termination is in the child=s best interest. In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.CHouston [14th Dist.] 2005, no pet.); In re U.P., 105 S.W.3d at 230.
We consider the following factors in determining the best interest of the child: (1) the child=s desires; (2) the child=s emotional and physical needs 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 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 which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976); In re C.M.C., 273 S.W.3d at 876. ABest interest@ neither requires proof of any unique set of factors, nor limits proof to any specific factors. In re S.M.L., 171 S.W.3d at 480. The same evidence of acts or omissions used to establish a ground for termination under section 161.001(1) may be probative in determining the best interest of the child. In re A.A.A., 265 S.W.3d at 516.
A. Children=s Desires
With respect to the desires of the children, two caseworkers testified that J.S.G. expressed a desire to return and live with appellant. The record does not reflect the desire of J.A.G., who was only two years old at the time. This factor weighs in favor of appellant with respect to J.S.G.
B. Present and Future Physical and Emotional Needs of the Children
Although J.S.G. and J.A.G. have no special needs, appellant=s medical neglect of C.G. potentially impacts the physical and emotional needs of the two children. See In re S.G.S, 130 S.W.3d 223, 238 (Tex. App.CBeaumont 2004, no pet.) (reasoning that the jury could also infer from the actual neglect of one child that the physical and emotional well-being of the other children was also jeopardized). Dr. Lopez opined that C.G. had been medically neglected in the last years of his life and that appellant=s neglect had hastened his death. The trier of fact could infer from appellant=s neglect of C.G. that the physical and emotional needs of J.S.G. and J.A.G. were jeopardized. See id. Furthermore, there is credible evidence that appellant=s home would subject the children to an unsafe living environment. This evidence support=s the trial court=s best interest finding.
C. Present and Future Emotional and Physical Danger to the Children
Although there is evidence that the children were occasionally Awell-nourished, happy, clean, and dressed appropriately,@ the record also reflects a substantial amount of contrary evidence regarding the children=s emotional and physical well-being. First, there is evidence that the structural integrity of the home endangered the physical and emotional well-being of the children. Welborn testified that an upstairs room had an unsecured floor, which, Asagged and felt like you [would] fall through.@ Welborn further testified that there were hazardous chemicals easily accessible to the children, including brake fluid and household cleaners. In the front yard, there was an old water well posing a serious hazard to the children. Welborn observed exposed electrical cords running across the floor inside the home, also a serious hazard to the children.
Furthermore, Willeford testified that the home was Aextremely dirty,@ and the carpet was filled with Acrustations.@ The condition of the carpet was of particular concern because J.A.G., one year old at the time, was still crawling. Willeford was also concerned with an exposed gas water heater in the kitchen that had no precautionary barriers to prevent injury to a child. Additionally, the stairway had no handrails, and the stove was in a deplorable condition. Willeford further testified that there was a considerable amount of rotten wood immediately outside of the house. Although appellant had made some repairs after his first visit, Willeford later observed continuing hazardous in the home, including the exposed gas water heater. Appellant=s recent past acts of exposing the children to a hazardous living environment is relevant to determining her future conduct. See Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (reasoning that Aan adult=s future conduct may be somewhat determined by recent past conduct@); see also In re A.C.B., 198 S.W.3d 294, 299 (Tex. App.CAmarillo 2006, no pet.) (recognizing that while the parent had made some repairs to home, such evidence did not controvert the evidence that she exposed the children to severe conditions which endangered the child=s physical well-being).
There is also evidence of appellant=s and other occupants= use of illegal drugs and engaging in criminal activity. See In re U.P., 105 S.W.3d at 231 (reasoning that parent=s prior drug use and criminal history weigh in favor of termination with respect to the Apresent and future emotional and physical danger to the child@). Willeford had received a referral alleging that appellant and other occupants were using illegal drugs in the home. Although appellant and her sister denied abusing drugs, they refused to submit to a drug test to disprove these allegations. Furthermore, appellant tested positive for propoxyphene.[6] Additionally, appellant=s nephew, another occupant of the home, had been convicted of a sexual offense against an 11 year old child.
Finally, there is compelling evidence of appellant=s medical neglect of C.G. See In re S.G.S, 130 S.W.3d at 238 (reasoning that the jury could infer from the actual neglect of one child that the physical and emotional well-being of the other children were also jeopardized). Dr. Lopez testified that C.G. was medically neglected since 2003. Specifically, Dr. Lopez testified that C.G. had multiple decubitus ulcers on his body and colostomy sites that were not properly treated. Additionally, despite his medical condition, Dr. Lopez opined that C.G.=s weight was extremely low. He was 15 years old and weighed 36 pounds. Dr. Lopez further testified that C.G. should have been fed with either a AG-tube@ or maintained a strict liquid diet; however, the autopsy revealed a piece of solid food affixed to the top of his mouth. Dr. Lopez testified that appellant also medically neglected C.G. by continually missing doctor=s appointments. At the very least, C.G. was required to see a doctor every six months, but apparently had not seen a doctor since 2003. Moreover, appellant was unable to produce or locate C.G.= s medical or pharmacy records from 2003 forward. Dr. Lopez opined that C.G. had been medically neglected in the last years of his life and that appellant hastened his death. The trier of fact could infer from appellant=s neglect of C.G. that the physical and emotional well-being of J.S.G. and J.A.G. were jeopardized. See id. Accordingly, this factor weighs in favor of the trial court=s best interest finding.
D. Parental abilities
Appellant=s medical neglect of C.G. is an indication of her parenting abilities, or lack thereof. Although disputed by appellant, there is evidence that appellant neglected C.G. Furthermore, appellant has neither provided a safe home for the children nor maintained stable employment. This factor weighs in favor of the trial court=s finding.
E. Available Assistance Programs
The only evidence concerning available assistance programs are those services outlined in the family service plan. While appellant completed the psychological examination, the Department presented evidence that appellant failed to complete her drug and alcohol treatment, attend individual counseling, complete parenting classes, and maintain stable employment.[7] Latasha Johnson, a caseworker for the Department, also testified that appellant was uncooperative and refused to allow her to visit the home during the investigation. See In re J.I.T.P., 99 S.W.3d at 847 (considering parent=s uncooperativeness and failure to complete counseling services in determining best interest of child). Accordingly, this factor weighs in favor of the trial court=s best interest finding.
F. Plans for the Children
Appellant has not outlined permanent plans for the children other than regaining custody. On the other hand, the Department recommended that the children remain permanently in relative placement with Grace Gonzalez. Johnson testified that Grace Gonzalez expressed a desire to keep the children and that Gonzalez=s home met the children=s physical and emotional needs and would continue to do so in the future. See id. at 847B48. This factor weighs in favor of the trial court=s best interest finding.
G. Stability of Home or Proposed Placement
As discussed at length above, appellant has not shown that she is able to provide a safe living environment for the children. Evidence of the hazardous condition of her current home and the criminal activity of appellant and other occupants weigh in favor of the trial court=s finding. See id. at 847 (reasoning that parent=s failure to provide a safe physical home environment weighs in favor of termination). In contrast, the Department presented evidence that Grace Gonzalez=s home met the children=s needs and would continue to do so in the future.
H. Acts or Omissions of the Parent
Appellant=s acts and omissions indicate that the existing parent-child relationship is not proper. Appellant failed to complete the court-ordered services to obtain the return of her children. The evidence reflects that appellant used illegal drugs, medically neglect her first child and hastened his death, exposed the children to hazardous conditions in the home, and allowed the children to co-habitat with an individual convicted of a sexual crime against a child. We find this evidence to support the trial court=s best interest finding.
I. Any Excuse for the Acts or Omissions of the Parent
Appellant claims that she properly treated C.G., provided a stable home for the children, and did not use illegal drugs. However, the evidence shows that appellant tested positive for prescription drugs for which she had no prescription, medically neglected C.G., had numerous outstanding warrants, and exposed the children to a physically-hazardous home environment. See Smith v. McLin, 632 S.W.2d 390, 392 (Tex. App.CAustin 1982, writ ref=d n.r.e.) (reasoning that the trial court is entitled to accept or reject the truth or accuracy of appellant=s testimony as to her past actions and future intentions).
After weighing the evidence as it relates to the Holley factors, we conclude there is legally and factually sufficient clear and convincing evidence to support the trial court=s best interest finding in favor of termination. Therefore, we overrule appellant=s third issue. Having overruled issues two and three with regard to the trial court=s findings under subsection 161.001(1)(O) and it best interest finding, we need not address appellant=s first issue challenging the termination findings under subsection 161.001(1)(D). See In re C.M.C., 273 S.W.3d at 878.
V. PARENTAL PRESUMPTION
In her fourth issue, appellant contends that the evidence is legally and factually insufficient to rebut the parental presumption under section 153.131. The parental presumption provides:
. . . unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child=s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Tex. Fam. Code ' 153.131(a). A challenge to a trial court=s finding under section 153.131(a) is an issue of conservatorship. See id. The quantum of proof required to support a termination decision differs from the level necessary to support a conservatorship appointment. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Termination findings must be supported by clear and convincing evidence, while Aa finding that appointment of a parent as managing conservator would significantly impair the child=s physical health or emotional development is governed by a preponderance-of-the-evidence standard.@ Id.; Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). These differing proof standards, in turn, affect the method of appellate review, which is less stringent for conservatorship findings than for those regarding termination. In re J.A.J., 243 S.W.3d at 616. Unlike termination findings, conservatorship determinations are subject to review only for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable. Id.; Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We must Aindulge every legal presumption in favor of the judgment@ and view the evidence presented to the district court Ain the light most favorable to@ its actions. Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App.CHouston [1st Dist.] 1995, no writ). Provided that there is some evidence Aof a substantive and probative character@ supporting the decision reached by the district court, then the district court did not abuse its discretion. Id.; see also Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.CAustin 1997, no pet.) (explaining that under an abuse of discretion standard, factual and legal sufficiency are not independent grounds of error, Abut are relevant factors in assessing whether the trial court abused its discretion@).
The presumption that the best interest of the child is served by awarding custody to the natural parent is deeply embedded in Texas law. See In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Lewelling, 796 S.W.2d at 166. The burden of proof is upon the non-parent, and there must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause harm. Lewelling, 796 S.W.2d at 167; In re C.A.M.M., 243 S.W.3d 211, 215 (Tex. App.CHouston [14th Dist.] 2007, pet. denied); Whitworth, 222 S.W.3d at 623. Acts or omissions that constitute significant impairment include, but are not limited to, physical abuse, severe neglect, abandonment, drug and alcohol abuse, or immoral behavior on the part of the parent. See In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.CEl Paso 1999, no pet.).
Here, appellant contends that the Department failed to prove by a preponderance of the evidence that appointing appellant as managing conservator would significantly impair the children physically or emotionally. To the contrary, the record is replete with evidence that appointing appellant as managing conservator would significantly impair the children=s physical or emotional development. There is evidence that appellant medically neglected her oldest child, thereby hastening his death. See Whitworth, 222 S.W.3d at 623 (reasoning that Aan adult=s future conduct may be somewhat determined by recent past conduct@). Appellant tested positive for prescription drugs, and there was evidence that she and other occupants of the home used illegal drugs. Appellant was unable to provide a suitable living environment for the children and allowed the children to reside with an individual who had been placed on probation for a sexual offense against an 11-year-old child. Appellant was also unable to maintain stable employment.
An abuse of discretion does not occur so long as some evidence of substantive and probative character exists to support the trial court=s parental presumption finding. Id. There is sufficient evidence to support the trial court=s finding that appointing appellant as managing conservator would significantly impair the children=s physical health or emotional development. We therefore overrule appellant=s fourth issue.
Having concluded that the evidence is sufficient to support the trial court=s termination findings under section 161.001(1) and to rebut the parental presumption under section 153.131, we affirm the trial court=s decree terminating appellant=s parental rights to J.S.G. and J.A.G.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed May 7, 2009.
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
[1] C.G. was born with cerebral palsy and seizure and bowel disorders. His condition demanded special medical attention, requiring him to see a doctor at least every six months in the years prior to his death. C.G.=s cause of death was later determined to be complications from cerebral palsy with seizure disorder and chronic debilitation.
[2] Gonzalez initially told Willeford that her son was on probation for drug possession. However, Willeford later learned that Gonzalez=s statements were false and that her son was actually on probation for indecency with a child who was 11 years old.
[3] The Department learned that appellant had two prior misdemeanor theft charges from 2004 and 2006. At the time of the children=s removal, appellant had an outstanding arrest warrant for bond forfeiture and at least seven additional warrants.
[4] The termination proceedings below also involved the two alleged fathers of J.S.G. and J.A.G. At trial, evidence was introduced of the fathers= identities and their lack of involvement with the children. Their parental rights were likewise terminated; however, they are not parties to the instant appeal.
[5] We note that similar to the issue raised in S.N., the Department=s argument here is one of statutory interpretation, which is a legal issue subject to a de novo review. Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002). In construing statutory provisions, our objective is to determine and give effect to the Legislature=s intent. In re Dep=t of Family & Protective Servs., 273 S.W.3d 637, 641 (Tex. 2009) (orig. proceeding). We assume that the legislature tried to say what it meant; therefore, its words should be the surest guide to its intent. Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 286 (Tex. App.CHouston [1st Dist.] 2004, pet. dism=d). Based on the foregoing principles, we adopt the statutory construction of subsection 161.001(1)(O) articulated by the S.N. court and conclude that the plain and ambiguous language of subsection 161.001(1)(O) requires that the child subject of the suit be removed as a result of abuse or neglect.
[6] Although appellant testified that she possibly tested positive for propoxyphene because she was taking Vicodin after tooth surgery, she failed to produce a prescription from a medical doctor or dentist. The factfinder was entitled to reject appellant=s testimony and accept as true the Department=s evidence. See Smith v. McLin, 632 S.W.2d 390, 392B93 (Tex. App.CAustin 1982, writ ref=d n.r.e.).
[7] At trial, appellant disputed the Department=s evidence of noncompliance with the family service plan; she testified that she completed drug and alcohol treatment and the parenting classes and was periodically employed with temporary jobs. However, the factfinder was entitled to reject appellant=s testimony and accept as true the Department=s evidence. See Smith, 632 S.W.2d at 392B93.