D. G. v. Texas Department of Family and Protective Services

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
D.G., No. 08-13-00261-CV
§
Appellant, Appeal from
§
v. 65th District Court
§
TEXAS DEPARTMENT OF FAMILY of El Paso County, Texas
AND PROTECTIVE SERVICES, §
(TC # 2011DCM10425)
Appellee. §

OPINION

We address once again the termination of a mother’s parental rights, a mother who is

herself a victim of repeated family violence but, for whatever reason, has refused to protect her

child. The facts are eerily reminiscent of our recent decision in C.B. v. Department of Family

and Protective Service, --- S.W.3d ---, No. 0-11-00286-CV, 2013 WL 3064405 (Tex.App.--

El Paso June 19, 2013, no pet.). For the reasons that follow, we affirm.

FACTUAL SUMMARY

The case was tried to the bench on June 18 and August 13, 2013. D.G. has five children

and at the time of trial, she did not have custody of any of them. By her first husband, M.C., she

has a son M.C. and a daughter I.C. These children live with their father and stepmother. D.G.

has one son H.C. and one daughter S.C. by her second husband, V.C. These children are living

with their paternal grandmother. At issue here is a four-year-old little girl, whose initials are also

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D.G. For clarity, we will refer to her by the pseudonym “Dawn” as referenced in briefing. We

will refer to D.G. as Mother.

Dawn’s father is G.G. and we will refer to him as such.1 Mother testified that she and

Father had been living together for seven years. It is unclear whether Mother and Father are

married. The record contains references to a common-law marriage and purported agreements

for marriage counseling. Yet it also references a suit to adjudicate parentage in which G.G., as

an alleged father, judicially admitted that he is Dawn’s father. Moreover, the trial court heard

testimony that while this case was pending, Mother told the caseworker that she was “engaged”

to a man named “Steve”. Father knew about Steve, and admittedly assaulted him, but claimed

ignorance as to any engagement. To complicate matters further, progress reports from Mother’s

counseling sessions mention a miscarriage in December 2012. Parentage of that child has never

been mentioned.

The Department had initial contact with Mother in 2006 when her son M.C. suffered a

broken arm. Hospital personnel discovered a previous ankle fracture that also required casting.

At this time, Mother was married to and living with V.C. She was referred to Family Based

Safety Services and completed counseling, individual and family therapy, and parenting classes.

The second intake occurred in 2011 with regard to physical abuse by Father toward H.C.

Mother and Father were referred to Family Based Safety Services. A service plan was

formulated in September 2011, requiring that Mother attend domestic violence classes,

individual and family therapy, parenting classes, and that she meet the children’s medical and

educational needs. There was also a requirement that she protect her children by not allowing

Father into the home. The evidence varies, but even Mother admitted that he had come into the

1
Midway through trial, Father executed a voluntary relinquishment and his parental rights were terminated on that
basis. See TEX.FAM.CODE ANN. § 161.001(1)(K)(West 2008). He is not a party to this appeal.

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home at least once when he brought the children food from McDonald’s. I.C. said that on

another occasion, Father broke in and hit her brothers. Mother maintained that he tried to break

in through the window, but the window was locked.

Mother proclaimed that neither she nor Father had ever hit the children, but during the

Department’s investigation, the children spoke about recurrent family violence. I.C. reported

that her mother pulled her hair. M.C. spoke of Father hitting him. S.C. was afraid of Father

because “he hits Mommy.” H.C. was afraid of Father because Father hit him. In October 2011,

an additional incident was reported in which S.C. complained that her mother kicked her in the

stomach and pulled her hair. Father had kicked her in the “butt”. H.C. recounted that his mother

hit him in the shower, slapped him, and pushed his head against the wall. Mother denied all of

these accounts, complaining that I.C. and M.C. were told what to say by their father and

grandmother and that H.C. had been injured at school. S.C. and H.C. recounted that Father had

put their hands over a hot stove because they had burned a pizza box. Mother explained that he

only turned on the stove to demonstrate how hot it was and how easily they could be burned. At

this point, S.C. and H.C. were placed with their paternal grandmother. After M.C. and I.C. told

representatives of the Department that they were disciplined with the cord of an iron, these two

siblings were placed with their father. And by November 2011, Dawn was placed first with

Father’s aunt and then with his mother and stepfather. In February 2012, Mother signed the

paperwork for the four older children to be placed in the managing conservatorship of the

relatives named above. Mother retained possessory conservatorship. At that time, the

Department moved forward with a Chapter 264 case whereby additional services were offered.

At trial, Mother testified that she had not seen M.C. or I.C. because they had moved away from

El Paso. She had experienced difficulty in visiting with S.C. and H.C. because of the

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grandmother’s interference. Mother’s visitation with Dawn was supervised and usually arranged

at a local McDonald’s.

Ana Marquez was the Department case worker assigned to Dawn. As the child became

more verbal, she related that “Dada hit Momma.” Father was not visiting with her. Marquez

supervised approximately 40% of the visits between Mother and daughter. Mother spent her

time texting on her telephone while Dawn played by herself. On one occasion, Mother called

Father so that the child could talk to him. There were several occasions when Mother did not

attend her visitations and Martinez explained that the June 2013 progress report indicated Mother

missed scheduled visits on April 11, April 23, May 2, May7, May 9, May 30, and June 20.

Marquez admitted that Mother usually called to notify the Department that she would not be

coming. But the week before trial she claimed to be having surgery, although the designated

hospital advised that there was no patient by that name. Marquez testified that for Dawn, the

goal is adoption and that her grandmother and step-grandfather wish to adopt the child.

Marquez also testified that Mother continued to maintain a relationship with Father.

Father admitted it to Marquez on many occasions, although Mother denied it. Representatives of

the Department had seen them together. Father had been spotted at the McDonalds where the

visitations occurred, and he had been seen dropping Mother off for the visitations. Shortly

before trial began in June 2013, he was at Mother’s apartment when an assistant case worker

stopped in. Father introduced himself as someone else, but he later admitted to Marquez, “I

know you know it was me. I know you know it was me, Ana. I was there.” Thus, despite the fact

that Mother had (1) obtained employment, (2) obtained housing, (3) finished parenting classes,

and (4) completed all of her service requirements, the biggest concern for the Department was

the ongoing relationship with Father, and Mother’s inability to learn from her mistakes. For

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example, Marquez described that the purpose of the individual therapy was to help Mother build

independence so she could extract herself from the relationship with Father. She was working on

coping skills, dealing with Father’s constant harassment, and issues of self-esteem. Yet, Father

had arranged for the housing, signed the lease, had been paying the rent, and at the very least was

visiting the apartment right before trial.

The trial court granted termination and Mother appeals, challenging the sufficiency of the

evidence to support the statutory grounds for termination and the trial court’s finding that

termination was in the child’s best interest.

PARENTAL TERMINATION

A parent's rights may be involuntarily terminated through proceedings brought under

Section 161.001 of the Texas Family Code. See TEX.FAM.C ODE ANN. § 161.001 (West 2008).

Under this provision, the petitioner must (1) establish one or more of the statutory acts or

omissions enumerated as grounds for termination, and (2) prove that termination is in the best

interest of the child. See id. Both elements must be established and termination may not be

based solely on the best interest of the child as determined by the trier of fact. Texas Department

of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

The natural right of a parent to the care, custody, and control of their children is one of

constitutional magnitude. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also Santosky v.

Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982)(acknowledging

that a parent’s rights to “the companionship, care, custody, and management” of their children

are constitutional interests, “far more precious than any property right”). Not only is a parent's

interest in maintaining custody of and raising her children “paramount;” it is quite possibly the

oldest fundamental liberty recognized by our courts. See In the Interest of M.S., E.S., D.S., S.S.,

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and N.S., 115 S.W.3d 534, 547 (Tex. 2003)(noting that Texas courts recognize that “a parent's

interest in maintaining custody of and raising his or her child is paramount”); Troxel v.

Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)(in discussing the

constitutional stature of parental rights, the United State Supreme Court said, “the interest of

parents in the care, custody, and control of their children--is perhaps the oldest of the

fundamental liberty interests recognized by this Court”); see also In re M.S., 115 S.W.3d at 549

(“Termination of parental rights is traumatic, permanent, and irrevocable.”). Although parental

rights are of constitutional magnitude, they are not absolute. In the Interest of C.H., 89 S.W.3d

17, 26 (Tex. 2002)(“Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional and physical

interests of the child not be sacrificed merely to preserve that right.”).

Burden of Proof

Because of the importance of parental rights, and the severity and permanency of

termination, the quantum of proof required in a termination proceeding is elevated from a

preponderance of the evidence to clear and convincing evidence. Santosky, 455 U.S. at 747, 102

S.Ct. at 1391; accord Holick, 685 S.W.2d at 20-21. See In re M.S., 115 S.W.3d at 547 and In the

Interest of D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.--Corpus Christi 2006, no pet.)

(cases recognizing that involuntary termination of parental rights is a drastic remedy which

divests the parent and child of all legal rights, privileges, duties, and powers normally existing

between them, except for the child's right to inherit from the parent.); see also In the Interest of

B.L.D. and B.R.D., 113 S.W.3d 340, 353-54 (Tex. 2003)(noting that because of the severity and

permanency of termination, due process requires the party seeking to terminate parental rights

prove the necessary elements by the heightened burden of proof of clear and convincing

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evidence).

“Clear and convincing evidence” means the 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.” TEX.FAM.CODE ANN. § 101.007 (West 2008); see In the Interest of

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In the Interest of J.A.J., 243 S.W.3d 611, 616

(Tex. 2007)(contrasting the standards applied in termination proceedings and the standards

applied in modification proceedings); In the Interest of C.D. and K.D., No. 02-10-00070-CV,

2011 WL 1743688, at *4 (Tex.App.--Fort Worth May 5, 2011, no pet.). This intermediate

standard falls between the preponderance of evidence standard of ordinary civil proceedings and

the reasonable doubt standard of criminal proceedings. State v. Addington, 588 S.W.2d 569, 570

(Tex. 1979); In the Interest of D.T., 34 S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet.

denied)(op. on reh’g). Although the proof must be more than merely the greater weight of the

credible evidence, there is no requirement that the evidence be unequivocal or undisputed.

Addington, 588 S.W.2d at 570.

Standards of Review

The Supreme Court has clearly articulated the applicable standards of legal sufficiency

review in termination cases. Accordingly, we consider all of the evidence in the light most

favorable to the trial court's finding, “to determine whether a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true.” In the Interest of J.P.B., 180

S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d at 266. We give deference to the

fact finder's conclusions, indulge every reasonable inference from the evidence in favor of that

finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. Id.; In re J.F.C., 96 S.W.3d at 266. We disregard any

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evidence that a reasonable fact finder could have disbelieved, or found to have been incredible,

but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96

S.W.3d at 266. A legal sufficiency or no evidence point will only be sustained when the record

discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or evidence from giving weight to the only evidence offered to prove a

vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of evidence; or

(4) the evidence establishes conclusively the opposite of a vital fact. See Swinney v. Mosher, 830

S.W.2d 187, 194 (Tex.App.--Fort Worth 1992, writ denied).

The factual sufficiency standards of review are explained in In re J.F.C., 96 S.W.3d 256

(Tex. 2002) and In re C.H., 89 S.W.3d 17 (Tex. 2002). Through them, and when addressing a

factual sufficiency complaint, we are told to determine whether, after assessing the entire record,

the evidence permits a fact finder to reasonably form a firm belief or conviction about the truth

of the State's allegations. In re J.F.C., 96 S.W.3d at 266; In re C.H, 89 S.W.3d at 25. Unlike the

situation where the legal sufficiency of the evidence is in question, our focus is not simply upon

the undisputed evidence that supports the verdict, but the disputed evidence as well. In re J.F.C.,

96 S.W.3d at 266. Implicit in the standard is our obligation to accord the fact finder the

deference needed for it to fulfill its role. In re C.H, 89 S.W.3d at 25-26. Furthermore, if the

evidence is factually sufficient, then, it is also legally sufficient. This is so because, logically,

there cannot be “no evidence” if the record contains enough evidence to enable the fact finder to

reasonably form a firm belief or conviction as to the existence of pivotal facts.

A determination of best interest necessitates a focus on the child, not the parent. See In

the Interest of R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). However, there is a

strong presumption that it is in the child's best interest to preserve the parent-child relationship.

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Swate v. Swate, 72 S.W.3d 763, 767 (Tex.App.--Waco 2002, pet. denied). The Texas Supreme

Court has enumerated certain factors which should be considered: the child's desires; the child's

emotional and physical needs now and in the future; the emotional and physical danger to the

child now and in the future; the parenting abilities of the individuals seeking custody; the

programs available to assist those individuals to promote the child's best interest; the plans for

the child by those individuals or the agency seeking custody; the stability of the home or

proposed placement; the parent's acts or omissions that may indicate that the existing parent-

child relationship is not a proper one; and any excuse for the parent's acts or omissions. Holley

v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)(“the Holley factors”). Also, permanence is of

paramount importance in considering a child's present and future needs. Dupree v. Texas

Department of Protective & Regulatory Services, 907 S.W.2d 81, 87 (Tex.App.--Dallas 1995, no

pet.).

SUFFICIENCY OF THE EVIDENCE

Statutory Predicates for Termination

In Issue One, Mother challenges the sufficiency of the evidence to support the statutory

findings regarding termination. The Department alleged, and the trial court found, that Mother

had:

 Knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;

 Engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers they physical or emotional well-being of the child; and

 Failed to comply with the provisions of a court order that specifically established
the actions necessary for the parent 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 parent under Chapter 262 for the abuse or neglect of the
child.

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See TEX.FAM.CODE ANN § 161.001(1)(D)(E) and (O)(West 2008).

The Recurrent Violence

Mother testified that her first husband had physically and verbally abused her before their

children were born. After that, she experienced only verbal abuse. Her second husband was

physically and verbally abusive to her, but never in front of the children. The record contains

police reports of domestic violence that Mother filed against other men she has dated. She has

lived with Father for seven years. She denied that he has ever hit, slapped, pushed, punched or

threatened the children. They had agreed that discipline would be limited to “time outs” and

taking away the Play Station. Despite her rosy view of life with Father, multiple documents

were introduced into evidence, including forms she filled out at the Center Against Family

Violence and police reports. The forms reported physical abuse, verbal abuse, and sexual abuse.

Boxes were checked indicating she had been pushed, shoved, bumped, slapped, choked,

strangled, restrained, kicked and grabbed. There were attempts to run over her with a car and

attempts to suffocate her. She had been confined against her will. Property was damaged or

destroyed. She described her husband as yelling, raising his voice, screaming, insulting her,

humiliating her, degrading her, calling her names, and threatening to take away the children.

This violence was conducted in the children’s presence. Mother also reported that Father read

her email, listened to her telephone messages, called to check up on her, did not allow her to go

to school or work, and was jealous of family, friends and strangers. He accused her of flirting

and infidelity. He discouraged friendships, questioned her activities and whereabouts,

discounted her accomplishments, controlled her access to money, and threatened her with harm

or death. He prevented her from using birth control and pressured her to become pregnant.

Mother admittedly signed these reports but denied all of it at trial, claiming that the

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representatives of the Center had filled out the paperwork for her. She had been advised to seek

a protective order but opted not do so because of the open CPS investigation. At the time of

trial, both Mother and Father were facing multiple charges of injury to a child, although none of

these involved Dawn.

Mother was also aware of Father’s brushes with the law. He had at least three

convictions for possession of marijuana. Indictments were admitted into evidence related to

burglary of a habitation and aggravated assault. In June of 2012, assault charges were filed

against Father arising from an incident with the purported fiancee “Steve” whom Mother was

dating at the time. Two police reports of harassment were filed relating to Father’s persistent

telephone messages and texts to Steve. Mother filed a police report in August 2012 alleging

aggravated assault with a knife. She told the police that Father was very jealous and became

upset because he thought she was looking at other men in a bar. There was a scratch on her neck

from Father having placed a knife to her throat. Mother chose not to cooperate with the

investigation because in her words, “like, we went out and I didn’t remember what happened.”

She later requested that the report not be filed because it was all a “misunderstanding.”

Mother also knew that Father had failed to comply with the service plan. He did not

comply with the Battering Intervention Program. He was asked to participate in individual or

marriage counseling but he did not. He did not complete the Aliviane program. He testified

positive for marijuana, but did not comply with recommendations that he attend and complete

outpatient therapy.2 Mother’s testimony concluded as follows:

Q: But throughout this case, you’ve continued to allow him to take you to visits,
continued to allow him to be in the apartment, and continued to have contact with
him to the point of even calling him during one of your visits with your daughter,

2
Mother consented to random drug testing. She tested positive once for cocaine, which she claimed resulted from
Father kissing her on the lips. The inference, of course, is that Father was using cocaine.

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 even though, from the very beginning of this case, you were asked not to have a
relationship with him, correct?

A: Correct.

Q: Even though, from the very beginning of this case, you knew the focus was
getting your daughter back to you and complying with what the Department was
asking you to do, correct?

A: Right.

Q: Okay. And the Department has repeatedly asked you, throughout this case,
whether or not you’re still in a relationship with [Father], correct?

A: Correct.

Q: And you’ve repeatedly told the Department that you are not?

A: Correct.

Q: Even though you’re well aware that [Father] continues to tell the Department
that you are, correct?

A: Correct.

From this, we conclude that the evidence is both legally and factually sufficient to support

termination on all three grounds. Despite her denial, the evidence overwhelmingly indicates that

Mother continues to have a relationship with Father. More importantly, she has never said she

would leave him in order to regain custody of her child. She has knowingly allowed Dawn to

have contact with Father and, as a result, she has placed her daughter with someone who has

engaged in conduct which endangers the physical or emotional well-being of the child.

Best Interest

Also in Issue One, Mother challenges the sufficiency of the evidence to support the trial

court’s finding that termination was in the child’s best interest. Both Marquez and CASA

volunteer Eunice Ballesteros testified concerning Dawn’s best interests. Dawn is happy with her

grandmother and Grandpa “B” and they want to adopt her. She has stabilized emotionally and

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the therapist has discharged her from treatment. The child is thriving and “feels safe”.

Ballesteros spoke of attending the visits between Dawn and her mother, noting that “there was

not really contact between mom and child.” Dawn would talk with Ballesteros or the case

worker. Ballesteros described the circumstances in July 2013, one month before the trial

reconvened, when Mother sat with her back toward the playground where Dawn was playing.

The child stayed by her mother for about five minutes and then headed toward the case worker

and Ballesteros. Mother had her cell phone out and was talking or texting. About 25 minutes

before the end of the visit, one of Mother’s friends appeared and “they started talking amongst

themselves and whispering stuff to each other in the ear, and no contact was made with [Dawn].”

There were missed visits after that. Initially when her mother failed to show up, Dawn became

agitated and anxious. More recently, she had become immune to her mother’s absence and

inconsistencies. She doesn’t cry anymore and she doesn’t bite her fingernails as much.

Ballesteros has also visited Dawn’s day care where they played Cinderella and built castles.

Ballesteros pretended she was Cinderella’s fairy godmother. She asked Dawn who would live in

the castle and the child answered that “she wanted to live with her grandparents in this castle

every day.” Ballesteros spoke with the teacher who advised that Dawn returned from visits with

her mother in a negative and aggressive state. In her view, Dawn needs something permanent

and consistent. She needs a stable and healthy home.

Dawn has, in her own child-like way, expressed her desires. She wants to live in the

castle with her grandparents. Her emotional needs have improved, and her therapist has

discharged her. We compare that with the teacher’s statements that visits with her mother have

had negative results. The emotional and physical dangers to the child now and in the future are

enormous given Mother’s and Father’s track record and their failure to address their own

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parental shortcomings. Mother is a victim and, according to the older children, an abusive

parent. Father is abusive to Mother and four of the children. He remains in the picture -- with

Mother’s approval and consent -- despite having his own parental rights terminated. Dawn has

witnessed the violence first hand, relating that “Dada hit Momma.” While a number of programs

were made available to assist Mother in protecting her child, she rejected them all. She did not

pursue a protective order. She did not seek victim assistance. Indeed she offered no plans

whatsoever for the future. The trial court was offered the best view of Mother’s credibility as her

story changed throughout trial. According to Mother, other people pressured the children to

report violence. Father has never been abusive to anyone. She didn’t remember the events

leading to police calls. She had not reported all of the highly specific acts of violence. Someone

else filled out the paperwork. As for the stability of Mother’s home, she has repeatedly dated,

and married, abusive men since high school. What we can glean quite clearly from her

testimony is that Mother is bent on protecting Father and she has sacrificed all five of her

children in the process. Her acts and omissions demonstrate that the existing parent-child

relationship is not a proper one. The last Holley factor requires us to identify any excuses for

Mother’s acts or omissions. We fully recognize that she is herself a victim of abuse but the cycle

has become self-perpetuating. See In re R.F., 115 S.W.3d at 812 (holding evidence supported

the jury finding that termination was in the children's best interest despite the mother's own

physical and sexual abuse as a child). While she has completed counseling and therapy, she

remains in denial. This is consistent with her therapist’s report concerning scores on the MCMI-

III. Dr. Schutte noted that “the validity scales of this objective measure of personality and

psychopathology indicate that the client responded to the test questions in a highly defensive

manner, tending to deny even minor problems most people are willing to acknowledge.” He

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concluded that her profile likely appears more favorable than is actually the case. Moreover, we

reiterate that she still faces four counts of injury to a child.

Against this backdrop, we consider the stability of the proposed placement. The

grandparents want to adopt this child. Dawn is thriving and feels safe. She speaks of her

attachment to Grandpa “B” and the trips they take together. She has bonded to them. Her case

worker, attorney ad litem, and the CASA volunteer all believed that termination was in Dawn’s

best interest. We agree. For all of these reasons, we conclude that the evidence is both legally

and factually sufficient to support the trial court’s finding that termination is in Dawn’s best

interest. We overrule the sole issue and affirm the trial court's judgment.

December 5, 2013
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

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