AFFIRM; Opinion Filed September 17, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00569-CV
IN THE INTEREST OF C.D., A CHILD
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-08-00440-W
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Myers
A.D. appeals the trial court’s judgment terminating his parental rights to his child, C.D.
Appellant brings one issue on appeal contending the evidence is factually insufficient to support
the jury’s finding that termination was in the best interest of the child. We affirm the trial court’s
judgment.
BACKGROUND
Appellant met N.D. in a program helping persons leaving jail. Appellant had been jailed
for a drug offense. Appellant and N.D. married, and their child, C.D., was born in 2002. In
2004, N.D. began doing drugs and drinking, and appellant left with C.D. When appellant lost his
job due to missing work caring for C.D., he turned to selling drugs to make money.
In 2008, appellant was stopped for a traffic violation while C.D. was in the car. The
police officers found cocaine in the car and arrested appellant in front of C.D. C.D. was placed
in foster care. Appellant was indicted for possession with intent to deliver four grams or more of
cocaine, and he was placed on deferred adjudication community supervision for five years. 1
Dallas County Child Protective Services Unit of the Texas Department of Family and
Protective Services (CPS) required appellant and N.D. to complete services in order to regain
custody of C.D. When appellant and N.D. failed to complete the services, CPS brought suit to
terminate appellant’s and N.D.’s parental rights. On the eve of trial, a relative was found who
was willing to take custody of C.D., and the termination case did not proceed. C.D.’s third
cousin, Cristal Joslin, and her friend, Roger Weems, became the managing conservators for C.D.
with appellant and N.D. being possessory conservators.
While on community supervision, appellant continued to sell drugs. Appellant was
charged with two counts of delivery of cocaine committed in 2009, retaliation committed in
2009, and possession of cocaine with intent to deliver committed in May 2011. In October 2011,
appellant pleaded guilty to these offenses, and his guilt was adjudicated in the 2008 case.
Appellant was sentenced to ten years’ imprisonment in the four drug cases and five years’
imprisonment in the retaliation case. Appellant’s expected release date is in 2015, but his release
could be as late as 2021.
In 2009, while in Joslin and Weems’s care, C.D. was diagnosed with Type 1 juvenile
diabetes. This medical condition requires close monitoring of C.D.’s diet, blood-sugar levels,
and ketone levels and regular insulin injections. While in Joslin’s care, C.D.’s diabetes was not
under control. C.D. also was admitted to mental hospitals a few times. Later, Joslin and Weems
separated, and C.D. was left in Joslin’s sole care. Joslin was not able to care for C.D. adequately
on her own while working to support herself and C.D. In early 2012, Joslin told CPS she could
1
It is not clear from the evidence whether appellant’s indictment, deferred adjudication, and subsequent conviction for possession with
intent to deliver arose from the incident when C.D. was in the car or from another incident in 2008.
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no longer care for C.D. Joslin dropped off C.D. and her belongings at CPS, which placed C.D.
in foster care. CPS then filed suit to terminate appellant’s and N.D.’s parental rights. While in
foster care, C.D.’s blood sugar and ketone levels were better controlled, and her emotional
stability improved. C.D. has not been in any mental hospitals since being placed in foster care.
At trial, numerous witnesses, including C.D.’s endocrinologist, testified that stability was
important for C.D. to manage her diabetes, and the best stability would come from a permanent
family through adoption instead of foster care. A video recording of C.D. was played for the
jury in which C.D. stated she wanted to be adopted but still wanted to have contact with her
biological parents and her maternal grandmother. CPS caseworkers testified that two families
were interested in adopting C.D. C.D. had previously lived with one of the families and liked
them. C.D.’s current foster family does not intend to adopt her but is committed to caring for
C.D. until she is adopted or reaches adulthood. CPS cannot guarantee that C.D. would remain
with that foster family if she is not able to be adopted.
BEST INTEREST OF THE CHILD
In his sole issue on appeal, appellant contends the evidence was factually insufficient to
support the jury’s finding that termination of appellant’s parental rights was in C.D.’s best
interest.
The involuntary termination of parental rights implicates fundamental constitutional
rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re T.A.D., 397 S.W.3d 835, 838 (Tex.
App.—Dallas 2013, no pet.). To terminate parental rights, the trier of fact must find, by clear
and convincing evidence, that the parent has committed one of the acts prohibited under section
161.001(1) of the Texas Family Code and that termination of parental rights is in the child’s best
interest. TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2012); In re E.N.C., 384 S.W.3d
796, 803 (Tex. 2012). Clear and convincing evidence is “proof that will produce in the mind of
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the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” FAM. § 101.007 (West 2008).
In reviewing termination findings for factual sufficiency of the evidence, we consider and
weigh all of the evidence. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002). But we give due deference to the fact finder’s resolution of factual questions. In re
C.H., 89 S.W.3d 17, 27 (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 allegations against
the parent. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.
Before terminating a parent’s rights, the fact finder must find, in addition to one of the
statutory grounds, that terminating the parent’s rights is in the child’s best interest. See FAM. §
161.001(2). In determining whether terminating the parent-child relationship is in a child’s best
interest, we must consider the following factors:
1. the child’s desires;
2. the child’s present and future emotional and physical needs;
3. the present and future emotional and physical danger to the child;
4. the parenting abilities of the persons seeking custody;
5. the programs available to the persons seeking custody to help promote the best
interest of the child;
6. the plans for the child by those persons 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 a proper one; and
9. any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
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The Child’s Desires
Stacy Grant, a child protective safety specialist with CPS, and Melissa Tyra, a CASA 2
volunteer, both testified C.D. told them she wanted to be adopted. A video recording was played
for the jury in which C.D. stated she wanted to be adopted. C.D. also stated she wanted to be
able to have continued contact with her mother and grandmother as well as appellant. Grant
testified that an open adoption allowing C.D. continued contact with her biological family was
possible.
The Child’s Present and Future Emotional and Physical Needs
The testimony showed C.D.’s diabetes and emotional issues require structure and
stability that could be best provided by her being a permanent part of a caring family. C.D.’s
diabetes requires careful monitoring of her diet, blood sugar and ketone levels, and insulin
injections that can best be fulfilled with a permanent and supportive family providing the
structure for C.D. to have medical discipline. C.D.’s diabetes care will continue for the rest of
her life. C.D. also needs a stable family environment to help her deal with her behavioral issues.
While in Joslin’s care, C.D. was diagnosed with hyperactive disorder, adjustment
disorder, and disruptive behavior disorder and was prescribed different psychiatric drugs. C.D.
was also admitted to mental hospitals on multiple occasions. C.D.’s current foster family has
provided her with good stability and support, both for her diabetes and her emotional and
behavioral issues. Since being placed with her current foster family, C.D. has not been placed in
a mental hospital, she is being “titrated off” the psychiatric drugs, and her diabetes is under
control.
2
“CASA” stands for Court Appointed Special Advocates. They are appointed for abused and neglected children in foster care.
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The Present and Future Emotional and Physical Danger to the Child
If C.D.’s diabetes is not controlled, complications from diabetes could result in blindness,
kidney failure, amputations, stroke, cardiovascular problems, and death. The jury could also
conclude from the evidence that if C.D. were not in a stable environment, her emotional status
could be jeopardized. C.D.’s doctor testified that diabetic children lacking a family structure
with proper family support “will likely fail” to control their diabetes.
The Parenting Abilities of the Persons Seeking Custody
Appellant is not seeking immediate custody because he is in prison until at least 2015,
and possibly until 2021. Father testified that he would like for C.D. to remain in foster care until
he is released from prison and can take custody of her. He testified that he has done no study of
the care required for a diabetic but stated he is willing to learn. He acknowledged that his wrong
decisions were the reason she was in foster care. Appellant testified he has changed while in
prison and has turned his life to God.
Grant testified that two families were interested in adopting C.D. but that CPS has not yet
selected a family. There was no evidence of the parenting abilities of these families.
The Programs Available to the Persons Seeking Custody
to Help Promote the Best Interest of the Child
Crystal Bartlett, a CASA supervisor, testified that for families adopting a child from CPS,
CPS offers “counseling, family therapy, provide[s] all sorts of resources to them with whatever
crisis situation that’s going on.” There are also post-adoption services, including monetary
subsidies to help the family provide for the child, free health insurance, and tuition waived at any
state university. Children’s Medical Center in Dallas provides a diabetes education program to
help families learn how to care for a diabetic child.
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The Plans for the Child by Those Persons Seeking Custody
Appellant testified his plan was for C.D. to remain in foster care until he was released
from prison. Then, he plans to work with CPS to eventually regain custody of C.D. At the time
of trial, C.D. was ten years old. She will be thirteen in 2015 when appellant reaches his expected
release date, and eighteen when he completes the full ten-year sentence.
Grant testified that CPS plans to have C.D. adopted in an open adoption whereby she can
maintain contact with her biological parents and grandmother. Grant testified that CPS is in
favor of open adoption in this case because that is what C.D. wants.
The Stability of the Home or Proposed Placement
Appellant, being in prison, has no home. His desire is for C.D. to remain in her current
foster home, which is providing stability and good care for her, until he is released and can take
custody of her. Grant testified that the foster mother has stated she is willing to care for C.D. as
long as is necessary, but CPS cannot guarantee that C.D. will remain with that foster family.
Appellant testified he thought he could get a job and an apartment after his release despite his
felony record, however, he did not explain what kind of work he could do. Appellant also
testified he did not own a car and would have to rely on public transportation or make other
arrangements to get C.D. to her medical appointments.
Grant testified that CPS planned to place C.D. with an adoptive family that could provide
her the care, support, and stability she needs.
The Acts or Omissions of the Parent Which May Indicate That the Existing Parent-Child
Relationship Is Not a Proper One
Appellant testified to his multiple felony drug convictions. Appellant admitted he
pleaded guilty to retaliation as part of plea deal, but he denied committing the offense. While on
community supervision, appellant continued to commit felonies. Appellant testified that he now
realized he placed C.D. in danger by having drugs in the car while driving with her in the car, but
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he did not recognize that as dangerous at the time. Due to his incarceration, appellant cannot
provide any care for C.D. Appellant admitted he does not know how to care for a child with
diabetes.
Excuses for the Acts or Omissions of the Parent
Appellant testified he began selling drugs after he lost his job due to missing work caring
for C.D. Appellant said he turned to selling drugs because “at the time, I thought it was the
easiest, fastest way for me to make money and just get my daughter what she wants.” Appellant
stated that at the time, he thought he was protecting C.D. by making money selling drugs.
However, he also testified he now knows that keeping his daughter happy was no excuse for
selling drugs.
Factual Sufficiency of the Evidence That Termination Is in C.D.’s Best Interest
The testimony at trial shows appellant will be incarcerated until at least 2015 and
possibly until 2021. Appellant’s voluntary actions of selling drugs resulted in his incarceration
and C.D.’s being placed in foster care.
C.D. suffers from diabetes and behavioral issues. C.D. requires a supportive, stable
family structure to keep control of her diabetes and her behavioral issues. If she fails to keep
control of her diabetes, the result could be catastrophic health problems, including blindness,
amputations, stroke, kidney failure, and even death. There is no family member available who
can provide C.D. the structure and stability she requires. The evidence shows that an appropriate
adoptive family can best provide C.D. the structure and stability she requires. Grant testified that
CPS cannot seek an adoptive family until the parents’ rights have been terminated.
C.D. told the jury in a video exhibit that she wanted to be adopted yet still maintain
contact with her biological parents and grandmother. Grant testified that CPS would try to find
an adoptive family for C.D. that would agree to an open adoption.
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Appellant testified he loved C.D. and wanted to regain custody of her when he is
released. However, when C.D. was first placed in foster care by CPS, he was assigned services
to complete in order to regain custody of C.D. and he failed to complete them. Although
appellant showed good parenting decisions by getting C.D. away from N.D. when N.D.’s
drinking and drug use posed a danger to C.D., appellant’s decision to sell drugs resulted in his
losing custody of her and her being placed in foster care. Appellant testified he has turned his
life over to God and now knows that selling drugs was wrong. However, he does not know how
to care for a child with diabetes. He testified he thought he could get a job despite his criminal
record, but he did not explain how he could properly care for C.D. with her diabetes and
behavioral issues as a single parent while keeping his job. Appellant was unable to keep his last
legal job while caring for C.D., and she did not then have diabetes.
After considering and weighing all the evidence while giving due deference to the jury’s
resolution of factual questions, we conclude that a juror could reasonably form a firm belief or
conviction that termination of appellant’s parental rights was in C.D.’s best interest.
Accordingly, we conclude the evidence was factually sufficient to support the jury’s finding that
termination of appellant’s parental rights was in C.D.’s best interest. We overrule appellant’s
sole issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
130569F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
In the Interest of C.D., a Child On Appeal from the 304th Judicial District
Court, Dallas County, Texas
No. 05-13-00569-CV Trial Court Cause No. JD-08-00440-W.
Opinion delivered by Justice Myers.
Justices Lang and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 17th day of September, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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