COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
'
R.F., No. 08-12-00173-CV
'
Appellant, Appeal from
'
v. 65th District Court
'
TEXAS DEPARTMENT OF FAMILY of El Paso County, Texas
'
AND PROTECTIVE SERVICES,
' (TC # 2009CM6364)
Appellee.
OPINION
Appellant brings an accelerated appeal from the trial court’s order terminating his
parental rights to six minor children. In three issues, he complains of evidentiary error and
challenges the sufficiency of the evidence. For the reasons that follow, we affirm.
FACTUAL SUMMARY
In September 2009, TDFPS removed six children from the care of their mother, V.M.,
and Appellant.1 The Department was granted temporary conservatorship of the children. In
1
In order of oldest to youngest, the children’s initials are R.F., V.F., A.F., R.F., A.F., and J.F. In his brief,
Appellant assigns the letters A-F to the children as follows:
October 2009, it appointed Priscilla Thornton as the case worker for all of the children.
According to Thornton, the children were removed due to the parents’ continued drug use. The
children were also residing in a small, unsanitary home “that was not able to meet their needs.”
They were not eating and Child E tested positive for cocaine.
Thornton worked with Appellant and V.M. for approximately eighteen months, and in
January 2011, they reached a settlement agreement. The Agreement provided that TDFPS would
become the permanent managing conservator of the children, and the parents would be appointed
as possessory conservators. The goal was family reunification. Thornton testified that the
Agreement was designed to allow V.M. more time to “get her home in order.” The Department
felt that if the mother had more time, she could be successful and the children could be returned
to her. At the time the Agreement was approved by the court, V.M. had a stable home and was
looking for employment. Thornton prepared a service plan for the parents. Appellant was
required to: (1) have weekly supervised visits with his sons; (2) provide financial support to
V.M.; (3) obtain employment; (4) keep in communication with Thornton; and (5) attend the
children’s “educational appoint- -- needs.” In February 2011, the trial court appointed TDFPS as
permanent conservator of the children and V.M. and Appellant as possessory conservators.
Child A’s initials are R.F.
Child B’s initials are V.F.
Child C’s initials are A.F.
Child D’s initials are R.F.
Child E’s initials are A.F.
Child F’s initials are J.F.
For ease of reference, we will do likewise.
2
While visiting his sons in June 2011, Appellant was arrested on charges of indecency
with a child for engaging in sexual contact with one of his daughters.2 On September 29, TDFPS
filed a petition for modification and termination of Appellant’s and V.M.’s parental rights. At
the time, Appellant was still incarcerated and V.M. had not had contact with the children since
July. On November 1, Appellant pled guilty to the indecency charges. The trial court accepted
his plea and placed him on deferred adjudication community supervision for a period of ten
years. Once he was out of jail, Appellant contacted Thornton. After his release, he was only
permitted to visit with his oldest son, Child A. Thornton testified that she allowed monthly,
supervised visits because the child asked to see his father.
On April 24, 2012, TDFPS filed a first amended petition which provided, in relevant part:
8. Termination of [Appellant’s] Parental Rights
If reunification with the father cannot be achieved, the Court should terminate the
parent-child relationship between [Appellant] and the child [A, B, C, D, E, and F]
under Chapter 161, Texas Family Code, because termination of the parent-child
relationship is in the child’s best interest and [Appellant] has committed one or
more of the following acts or omissions:
8.1. knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child;
8.2. 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;
8.3. failed to support the child in accordance with the father’s ability during a
period of one year ending within six months of the date of the filing of the
petition;
8.4. been convicted or has been placed on community supervision, including
deferred adjudication community supervision, for being criminally responsible for
the death or serious injury of a child under the following sections of the Penal
Code or adjudicated under Title 3 for conduct that caused the death or serious
injury of a child and that would constitute a violation of one of the following
Penal Code sections:
2
The allegations related only to Child C. But at the May 4, 2012 hearing, testimony revealed that both Child C and
Child B were sexually assaulted by Appellant.
3
§ 21.11 (indecency with a child)
8.5. constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and Protective
Services or an authorized agency for not less than six months and: (1) the
Department or authorized agency has made reasonable efforts to return the child
to the father; (2) the father has not regularly visited or maintained significant
contact with the child; and (3) the father has demonstrated an inability to provide
the child with a safe environment;
8.6. failed to comply with the provisions of a court order that specifically
established the actions necessary for the father 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;
Hearings were conducted on April 30 and May 4, 2012. Appellant and V.M. testified at
the hearing, as well as Thornton and Irene Burgos-Cadena, the children’s therapist. The
following exhibits were admitted into evidence: (1) the indictment charging Appellant with
indecency with Child C; (2) the November 7, 2011 judgment finding Appellant guilty and
ordering he be placed on deferred adjudication community supervision for ten years; (3)
Cadena’s records from her therapy sessions with the children; (4) the trial court’s order
approving the January 2011 Settlement Agreement; and (5) the February 2011 final order. On
May 15, 2012, the trial court signed an order terminating Appellant’s parental rights pursuant to
Section 161.001(1)(L)(iv) of the Texas Family Code and found termination to be in the best
interest of the children.
BURDEN OF PROOF
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
4
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 his or 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., 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.”). A
parent’s rights may be involuntarily terminated through proceedings brought under Section
161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001 (West 2008). Under
this provision, the petitioner must establish one or more of the acts or omissions enumerated
under subsection (1) as grounds for termination and must also prove that termination is in the
best interest of the child. See id. Both elements must be established; 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).
5
Because of the elevated status of parental rights, and the severity and permanency of
termination, the quantum of proof required in a termination proceeding is elevated from the
preponderance of the evidence to clear and convincing evidence.3 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., 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 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., 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 re D.T., 34 S.W.3d 625, 630 (Tex.App.--Fort Worth 2000, pet. denied)(op. on reh’g).
3
This heightened standard is likewise statutorily mandated. See TEX.FAM.CODE ANN. § 161.001 (West
2008)(stating that, “The court may order termination of the parent-child relationship if the court finds by clear and
convincing evidence . . . .” [Emphasis added]).
6
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. We strictly scrutinize termination proceedings, and construe any statutes involving
involuntary termination in favor of the parent. Holick, 685 S.W.2d at 20-21; In the Interest of
A.V., 849 S.W.2d 393, 400 (Tex.App.--Fort Worth 1993, no writ).
STANDARDS OF REVIEW
When reviewing legal sufficiency or “no evidence” challenges to termination findings,
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 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).
7
In reviewing the evidence for factual sufficiency, we must give due deference to the fact
finder’s findings, and we cannot supplement such judgment with our own. In the Interest of
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006), citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) and
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). “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, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d at 108;
quoting In re J.F.C., 96 S.W.3d at 266 (internal quotations omitted). Moreover, in applying this
standard, our review “must not be so rigorous that the only factfindings that could withstand
review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d at 26; citing
Santosky, 455 U.S. at 767-69, 102 S.Ct. 1388; see also In re H.R.M., 209 S.W.3d at 108.
EXCLUSION OF EVIDENCE
In Issue One, Appellant complains that the court erred by refusing to allow him to testify
that, despite his guilty plea, he did not commit the offense of indecency with a child. During
Appellant’s initial testimony, his attorney attempted to ask him why he pled guilty to the sexual
offense. The State objected on grounds of collateral estoppel. The trial court sustained the
objection.
After Appellant was excused, the State called the children’s therapist and the case worker
to testify. Cadena testified that both of Appellant’s daughters reported that Appellant had
sexually assaulted them. She did not testify to the details. The State then rested its case.
Appellant was re-called to the stand and his attorney again tried to elicit testimony as to why he
pled guilty. The State objected, arguing Appellant could not collaterally attack his prior
8
conviction. Appellant’s counsel countered that Cadena’s testimony had “opened the door.” The
trial court disagreed, sustained the State’s objection, and excluded the testimony.
Appellant’s trial counsel subsequently offered the testimony via a bill of exception.
Appellant testified that he never sexually abused either of his daughters. He pled guilty because
of his prior felony convictions and because his defense counsel told him he was looking at fifteen
years because of his past criminal history. Appellant also testified that after he was arrested in
June, “everything fell apart.” He wanted to get out as quickly as he could so that he could do
whatever he needed to do to keep the family together.
Standard of Review
Appellant contends the trial court committed “plain error” by excluding his testimony and
that the trial court’s ruling “likely resulted in prejudice.” We review a trial court’s decision to
admit or exclude evidence for an abuse of discretion. Bay Area Healthcare Group, Ltd. v.
McShane, 239 S.W.3d 231, 234 (Tex. 2007)(per curiam); In re C.R., 263 S.W.3d 368, 370
(Tex.App.--Dallas 2008, no pet.). Evidentiary questions fall within the trial court’s discretion,
and the trial court’s ruling will not be subject to reversal unless a clear abuse of discretion is
shown. Perryman v. State, 798 S.W.2d 326, 329 (Tex.App.--Dallas 1990, no pet.); Werner v.
State, 711 S.W.2d 639, 643 (Tex.Crim.App. 1986); see also Jackson v. State, 575 S.W.2d 567,
570 (Tex.Crim.App. 1979) “When a ruling excludes evidence, to preserve error the appellant
must have made the substance of the evidence known to the trial court through an offer of proof,
unless the substance of the evidence was apparent from the context within which the question
was asked.” In re Commitment of Day, 342 S.W.3d 193, 199 (Tex.App.--Beaumont 2011, pet.
denied). “To properly pass on the question of the exclusion of testimony, the record should
indicate the questions that would have been asked, what the answers would have been and what
9
was expected to be proved by those answers.” Lopez v. Southern Pacific Transportation
Company, 847 S.W.2d 330, 336 (Tex.App.--El Paso 1993, no writ).
Analysis
At the termination hearing, Appellant tried to deny that he ever committed the sexual
offense and to offer reasons for his guilty plea. “A collateral attack is an attempt to avoid the
binding force of a judgment in a proceeding not instituted for the purpose of correcting,
modifying, or vacating the judgment, but in order to obtain some specific relief which the
judgment currently stands as a bar against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.
2005). A guilty plea collaterally estops the convicted party from relitigating his guilt because, “a
valid guilty plea serves as a full and fair litigation of the facts necessary to establish the elements
of the crime.” Johnston v. American Medical International, 36 S.W.3d 572, 576 (Tex.App.--
Tyler 2000, pet. denied), quoting State Farm Fire & Cas. Co. v. Fullerton, 118 F.3d 374, 378,
384 (5th Cir. 1997)(internal quotations omitted).
Appellant directs our attention to In the Interest of S.J.G., 124 S.W.3d 237 (Tex.App.--
Fort Worth 2003, pet. denied) and In the Interest of A.H.L., III, 214 S.W.3d 45, 56 (Tex.App.--
El Paso 2006, pet. denied). In In re S.J.G., the defendant pled guilty to sexually assaulting his
four-year-old daughter and was sentenced to thirty-five years’ imprisonment. 124 S.W.3d at
240. The State filed a petition to terminate the parent-child relationship between the defendant
and S.J.G. Id. At the termination hearing, an investigator with TDPRS testified in detail
regarding an outcry statement the child made about the sexual assault. Id. at 245. The detective
who interviewed the defendant testified that the defendant had confessed to the assault in detail,
saying things such as, “that he had put his penis in S.J.G.’s mouth ten times or less and put his
finger in her anus on at least two occasions,” that during “ the three-month period in which
10
S.J.G. lived with him, he had sexually assaulted her eight times,” and that he committed the
abuse because “he just could not overcome his urges.” Id. The defendant claimed he was fooled
into pleading guilty and denied ever sexually assaulting S.J.G. Id. He was drunk when he
confessed to the police and did not remember the entire conversation. Id. Based on the
defendant’s guilty plea, his confession, and other evidence, the trial court terminated his parental
rights. Id. at 240. The order specified that termination was appropriate under Section 161.001
(1)(D), (E), (L), and (Q). Id. at 239. The father appealed and challenged the factual sufficiency
of the evidence to sustain the court’s findings. Id. at 244. The court of appeals found the
evidence sufficient to prove that he “knowingly placed S.J.G. in conditions or surroundings that
endangered her physical and emotional well-being and that [he] engaged in conduct that
endangered S.J.G.’s physical or emotional well-being.” Id., citing TEX.FAM.CODE ANN.
§ 161.001(1)(D), (E). The court did not address whether the evidence was sufficient to sustain
the other two grounds, nor was it asked to determine (1) the admissibility of the defendant’s
testimony denying that he committed the offense, or (2) whether a defendant is permitted to
collaterally attack a final conviction. See In re A.H.L., III, 214 S.W.3d at 55. There, the
appellant argued that the trial court erred by failing to provide him an evidentiary hearing based
on his contention that his counsel was ineffective for failing to collaterally attack his aggravated
assault conviction. Id. at 55-56. In support of his claim, the appellant cited to S.J.G. This court
responded simply:
We find the case distinguishable. In the absence of any other authority permitting
[the appellant] to collaterally attack his final conviction, we conclude that [the
appellant] was not entitled to an evidentiary hearing on this allegation.
Id.
11
Appellant’s guilt had already been determined in the prior criminal proceeding.
Therefore, the issue of Appellant’s guilt could not be relitigated, regardless of the reasons for his
guilty plea. Finding no abuse of discretion, we overrule Issue One. See Johnston, 36 S.W.3d at
576.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT TERMINATION UNDER
TEXAS FAMILY CODE SECTION 161.001(1)(L)(iv)
The trial court ordered termination of Appellant’s parental rights based in part on a
finding that the State proved, by clear and convincing evidence, that termination was appropriate
under Texas Family Code Section 161.001(1)(L)(iv). Section 161.001(L)(iv) provides as
follows:
The court may order termination of the parent-child relationship if the court finds
by clear and convincing evidence:
(1) that the parent has:
. . .
(L) been convicted or has been placed on community supervision, including
deferred adjudication community supervision, for being criminally responsible for
the death or serious injury of a child under the following sections of the Penal
Code or adjudicated under Title 3 for conduct that caused the death or serious
injury of a child and that would constitute a violation of one of the following
Penal Code sections:
. . .
(iv) Section 21.11 (indecency with a child);
[Emphasis added]. TEX.FAM.CODE ANN. § 161.001(1)(L)(iv).
In Issue Two, Appellant contends that there is no evidence or factually insufficient
evidence to terminate his parental rights under Section 161.001(1)(L)(iv) of the Texas Family
Code. On appeal, Appellant does not challenge the sufficiency of the evidence to prove he was
placed on deferred adjudication community supervision for the offense of indecency with a
12
child.4 Rather, Appellant contends there is no evidence, or insufficient evidence, to prove that
his conduct “caused the death or serious injury of a child,” as required under subsection (L).
Few cases address what constitutes “serious death or injury” as required by Section
161.001(1)(L). In his brief, Appellant relies heavily on Vidaurri v. Ensey, 58 S.W.3d 142
(Tex.App.--Amarillo 2001, no pet.). There, the Enseys filed a petition to terminate Vidaurri’s
parental rights to his biological son and sought a judgment permitting them to adopt the child.
Vidaurri, 58 S.W.3d at 144. Although the petition alleged several grounds for termination, the
trial court ordered termination under ground (L)(iv), based on Vidaurri’s conviction for
indecency with his stepdaughter.5 Id. at 144-145. Specifically, the trial court found by clear and
convincing evidence that Vidaurri “had been placed on deferred adjudication community
supervision for being criminally responsible for the death or serious injury of a child under
section 21.11 of the Texas Penal Code.” Id. at 144. (internal quotations omitted). Vidaurri
alleged that the Enseys failed to prove the “death or serious injury of a child” element under
Texas Family Code Section 161.001(1)(L)(iv). Id. The appellate court agreed, finding no
evidence of serious injury of a child.6 Id. (stating that “analysis leads us to conclude that the
4
The evidence in the record includes the indictment which charges Appellant with intentionally or knowingly
engaging in sexual contact with his daughter by touching her genitals. The record also includes a copy of the final
judgment and conviction for the offense. Therefore, the evidence clearly demonstrates that Appellant pled guilty to
the offense of indecency with a child and was placed on deferred adjudication community supervision for that
offense. We also note that the indictment and final judgment ordering deferred adjudication were admitted into
evidence without objection.
5
Vidaurri pled guilty to charges of sexual indecency with his stepdaughter and was granted deferred adjudication
community supervision. Vidaurri, 58 S.W.3d at 144-145. He was later adjudicated guilty and imprisoned. Id. at
145. At the time of the appeal, Vidaurri, had filed a writ of habeas corpus attacking his original guilty plea. Id.
6
The appellate court rejected the trial court’s finding of fact that Vidaurri had been placed on deferred adjudication
community supervision for being criminally responsible for serious injury to a child. Vidaurri, 58 S.W.3d at 146
(holding that the trial court’s finding, “is not in and of itself evidence that Vidaurri was criminally responsible for
serious injury to a child.” Id. at 147. The court similarly rejected evidence of an order prohibiting Vidaurri from
contacting his stepdaughter. Vidaurri, 58 S.W.3d at 147 (“nothing before us indicates that the only reason why such
a condition could be imposed is because he seriously injured a child while committing the indecency”). The
confession could not be considered because Vidaurri did not confess but instead invoked his Fifth Amendment right
against self-incrimination. Id. at 146; 147. Even had he done so, “the only way that the confession itself could be
13
foregoing indicia, whether considered collectively or separately, fall short of constituting a
scintilla of evidence, much less some evidence, of serious injury.”).
While the Texas Supreme Court has not directly addressed the issue, it has commented
on it. See In the Interest of L.S.R., 92 S.W.3d 529 (Tex. 2002)(per curiam); In In the Interest of
L.S.R., 60 S.W.3d 376 (Tex.App.--Fort Worth 2001, pet. denied), the appellant challenged the
legal sufficiency of the evidence to terminate his parental rights under Section 161.001(1)(L)(iv)
of the Texas Family Code. The evidence at trial demonstrated that he had received deferred
adjudication for the offense of indecency with a child, and that the offense occurred when he was
sixteen and the victim (his cousin) was four years old. Id. The court of appeals recounted that
appellant was treated for pedophilia. Id. The court concluded:
While the conviction might be sufficient evidence of death or injury in those cases
where death or serious injury to the child is an element of the offense, we hold
that where death or serious injury is not an element of the offense, the conviction
or deferred adjudication is not by itself sufficient evidence to support termination
under section 161.001(1)(L)(iv).
Id. at 379. Although the Supreme Court denied the petition for review, it issued the following
per curiam statement:
J.R. and L.R. appeal a judgment terminating their parental rights to their daughter,
L.S.R. Section 161.001(1)(L)(iv) of the Texas Family Code provides for
termination if a parent has been convicted or placed on community supervision,
including deferred adjudication community supervision, ‘for being criminally
responsible for the death or serious injury of a child’ under various Penal Code
sections, including a conviction for indecency with a child under Section 21.11 of
the Penal Code. The State presented evidence at trial showing that J.R. had
received deferred adjudication for the offense of indecency with a child, an
some evidence of having seriously injured [his stepdaughter] would be if such injury were implicit in the offense of
indecency with a child.” Id. at 147. The court was unwilling to hold that serious injury was implicit in the offense
and therefore concluded that Vidaurri’s non-confession “in and of itself constitutes no evidence of serious injury.”
[T]he effect, if any, of the incident upon her physical or mental condition went unaddressed at
trial. Similarly absent is any testimony, expert or otherwise, suggesting that one who has been the
victim of an indecency within the ambit of § 21.11 necessarily suffers any injury, serious or
otherwise.
Id.
14
offense J.R. committed against his four-year-old cousin when he was sixteen.
The court of appeals held that there was no evidence to support termination under
Section 161.001(1)(L)(iv) because there had been ‘no showing that J.R.’s cousin
suffered death or serious injury as a result of his conduct.’ The court of appeals
deleted this ground for termination from the judgment, but otherwise affirmed the
judgment against J.R.
We deny the petitions for review, but disavow any suggestion that molestation of
a four-year-old, or indecency with a child, generally, does not cause serious
injury. [Emphasis added].
In re L.S.R., 92 S.W.3d at 529. (Internal citations and quotations omitted).
15
Application and Analysis
Here, the record contains expert testimony from the child’s therapist. Cadena is a
licensed clinical therapist who began providing therapy sessions for five of the six children upon
their removal in September 2009. She continued to provide therapy at the time of trial.7 She
testified that Child C suffered from severe anxiety issues. The child requires medication, suffers
from enuresis and encopresis, and has been treated in a mental hospital. Child C does not want
to see her father and has expressed anger toward him, as well as fear about returning to her prior
living environment. While what constitutes “serious injury” in this context has not been
specifically defined, the injuries suffered by this child certainly support a finding that she
suffered serious injury.
Appellant complains that this testimony did not make a causal connection between the
sexual abuse and the child’s hospitalization. We disagree. While Cadena may not have
specifically attributed all of Child C’s problems to the sexual abuse, she did testify that sexual
abuse was a factor. Appellant cites no authority, and we have found none, suggesting that sexual
indecency must be the sole cause of serious injury. Considering all evidence in a light favorable
to judgment, we find the evidence legally sufficient to support, by clear and convincing
evidence, a determination that Child C suffered serious injury as a result of Appellant’s indecent
conduct. Likewise, in light of the entire record, we find that evidence which a reasonable fact
finder could not have credited in favor of the finding is not so significant as to prevent the fact
finder from forming a firm belief or conviction regarding the finding of serious injury.
Accordingly, the evidence factually is sufficient. We overrule Issue Two.
7
In addition to her testimony, Cadena’s records from her therapy sessions with the children were admitted into
evidence without objection.
16
BEST INTEREST OF THE CHILDREN
In Issue Three, Appellant challenges the sufficiency of the evidence to support the trial
court’s best interest finding under Section 161.001(2). There is a strong presumption that a
child’s best interests are served by maintaining the parent-child relationship. In the Interest of
L.M., 104 S.W.3d 642, 647 (Tex.App.--Houston [1st Dist.] 2003, no pet.). The Supreme Court
has set forth a list of non-exclusive factors which can be used to determine a child’s best
interests. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The determination of a
child’s best interest does not require proof of any unique set of factors, and it does not limit proof
to any specific factors. Id. Under Holley, in reviewing the sufficiency of the evidence to support
a best-interest finding, courts may consider (1) the desires of the child, (2) the present and future
physical and emotional needs of the child, (3) the present and future emotional and physical
danger to the child, (4) the parental abilities of the persons seeking custody in promoting the best
interest of the child, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by the individuals or agency seeking custody, (7)
the stability of the home or proposed placement, (8) acts or omissions of the parent which may
indicate the existing parent-child relationship is not appropriate, and (9) any excuse for the
parent’s acts or omissions. Id. The same evidence of acts or omissions used to establish grounds
for termination under Section 161.001(1) may be probative in determining the best interests of
the child. In re C.H., 89 S.W.3d at 28; In re L.M., 104 S.W.3d at 647. Termination of the
parent-child relationship is not justified when the evidence shows merely that a parent’s failure
to provide a more desirable degree of care and support of the child is due solely to misfortune or
the lack of intelligence or training, and not to indifference or malice. Clark v. Dearen, 715
S.W.2d 364, 367 (Tex.App.--Houston [1st Dist.] 1986, no writ).
17
Turning to the Holley factors, the children’s therapist testified that the two girls do not
want to even see their father, and Children B, C, and D were fearful of returning to their father
and the same environment they experienced before TDFPS removed them. The children were
doing well, “moving forward,” and have a “positive outlook for the future.” The case worker
testified that the five youngest children were all placed together in a foster care with the World
for Children. These children were excited about being adopted. Child A is willing to be
adopted, but only by a family member. He is the only child to express any interest in seeing
Appellant.
“The goal of establishing a stable, permanent home for a child is a compelling state
interest.” See Walker v. Texas Department of Family and Protective Services, 312 S.W.3d 608,
616-17 (Tex.App.--Houston [1st Dist.] 2009, pet. denied), citing In re C.E.K., 214 S.W.3d 492,
498 (Tex.App.--Dallas 2006, no pet.). Prior to removal, it could hardly be said that Appellant
provided the children with a stable, permanent, or sanitary home. They were forced to move
frequently, often living in roach infested motels. They were exposed to drug use and domestic
violence. Child E tested positive for cocaine. The children also expressed fear about returning
to their parents because they remembered not having enough food to eat.
With respect to emotional needs, the evidence clearly showed that the children expressed
anger toward their father. Several of the children had emotional problems, including severe
anxiety, and required medication. Three of the children suffered from enuresis and encopresis up
until about three months before trial. Both girls told their therapist they had been sexually
abused by Appellant. They were afraid of him and did not want to see him. While Cadena did
not relate the specifics regarding the abuse at trial, she did testify that both girls recounted the
abuse to her in detail. The girls’ stories never changed and Cadena believed they both were
18
telling the truth. We also note that, in addition to the evidence above, the evidence discussed in
support of the trial court’s finding under Section 161.001(1)(L)(iv) is also probative of a finding
as to danger in determining the child’s best interest. See In re C.H., 89 S.W.3d at 28.
Appellant contends he met the physical and emotional needs of the children. He focuses
on the fact that he paid child support, complied with his service plan, and regularly visited his
children before he was incarcerated. The fact finder was free to weigh the evidence of
Appellant’s past conduct with any evidence of his current or potential future conduct. In so
doing, it could have reasonably found Appellant’s past conduct indicative of his inability to
meet the children’s physical and emotional needs in the future. See In the Interest of T.G.,
No. 14-09-00299-CV, 2010 WL 1379977, at *9 (Tex.App.--Houston [14th Dist.] Apr. 8, 2010,
no pet.).
There is evidence in the record that Appellant behaved appropriately during his visits
with his oldest son. But Appellant’s prior history of drug abuse and domestic violence, as well
as his conviction for sexual abuse of his daughter, show a lack of parental ability. Under the
terms of his probation, Appellant cannot have the children placed with him.
Appellant also maintains that he engaged in services prior to his arrest, continued therapy
after his release from jail, was making great strides in therapy, and the therapist had reduced the
frequency of sessions. But there is no evidence of programs available to assist him in caring for
the children should they be returned, nor does Appellant offer any evidence of programs or
assistance which would lift the term of his probation which prevents him from having contact
with his children.
The caseworker and the therapist recommended termination of the parent-child
relationship because it will provide the children with stability and permanence. The plan for the
19
children was adoption. And despite Appellant’s efforts to cite to information focusing on the
conduct of the foster parents, none of the information was before the trial court nor is it properly
contained in the record of this court.
In light of all of the evidence, the trial court could have reasonably formed a firm belief
or conviction that termination of Appellant’s parental rights was the best interest of the children.
Accordingly, we hold that the evidence is both legally and factually sufficient to support the trial
court’s finding that termination of Appellant’s parental rights was in the best interest of the
children. We overrule Issue Three and affirm the trial court’s order of termination.
November 8, 2012 __________________________________________
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
20
R. F. v. Texas Department of Family and Protective Services
Combined Opinion