in the Interest of D. G., N. K., and C. K., Children

NUMBER 13-11-00127-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF D.G., N.K., AND C.K., CHILDREN

On appeal from the 24th District Court
of Victoria County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
This is an appeal from a trial court order terminating the parental rights of

appellant, T.G. to her three biological sons, D.G., N.K., and C.K. The trial court

determined that there was clear and convincing evidence that appellant knowingly placed

or knowingly allowed the children to remain in conditions or surroundings which

endangered their physical or emotional well-being and engaged in conduct or knowingly
placed the children with persons who engaged in conduct which endangered the physical

or emotional well-being of the children. See TEX. FAM. CODE ANN. § 161.001(1)(D) & (E)

(West Supp. 2011). By four issues, appellant argues that the evidence is legally and

factually insufficient to support the trial court's decision that appellant's parental rights

should be terminated. We affirm.

I. BACKGROUND

In late 2008 and early 2009, appellant became the subject of investigations by the

Department of Family and Protective Services ("the Department"), involving the three

children who are the subject of this termination proceeding. Appellant was charged with

physical neglect in 2008, and again in February 2009. There were physical abuse

charges and neglectful supervision charges in 2009 involving sexual abuse by the

children's grandmother's boyfriend. Because of the investigations, on June 30, 2009,

appellant temporarily relinquished her parental rights to a friend of hers named K.J.

Appellant stated that she relinquished her rights because she was under investigation

and didn't want the children to go to a foster home. Thirty days after she relinquished her

parental rights, she changed her mind and attempted to revoke the relinquishment. The

children remained with K.J. until September 2009, when physical abuse charges were

made against K.J. They were then placed in foster care in the Ramey home where they

resided at the time of trial. K.J. was made a part of these proceedings because she

wanted the children returned to her home.

Leslie Switzer, a clinical social worker, testified at trial that she had been

counseling the two older children since December 2009. She testified that D.G., then

2
twelve years old, told her that he suffered abuse at the hands of appellant. He told

Switzer that he was hit with whips and was made to eat feces and drink urine by his

mother. D.G. also alluded to abuse by his grandmother's boyfriend, who would rub his

genitals on him and urinate on him. D.G. told Switzer that he told his mother about the

abuse. D.G. also told Switzer that while in K.J.'s care, she had whipped him and locked

him in a closet for extended periods of time. Switzer believed D.G.'s allegations to be

true.

With respect to N.K., who was nine years old at the time, Switzer testified that he

also indicated that appellant would make him eat feces, would take him out to the garage

to set fire to things and then took him to a treatment center and had him detained in a

psychiatric facility. He also alleged sexual abuse by his grandmother's boyfriend. N.K.

told Switzer that appellant would "rub his penis until it would stand up." According to

Switzer, appellant told N.K. that she had implanted a chip in his head and that if he ever

talked about that, she would find him and kill him. He has dreams of appellant killing him

with an axe and draws a lot of pictures depicting the dream in therapy. N.K. also told

Switzer that he had been whipped by K.J. and put in a closet.

On cross examination, Switzer said that she did not believe the children had

"manufactured" the things they told her. She also testified that the children reported the

abuse by the grandmother's boyfriend before she became their counselor.

Olivia Ramey, the children's foster mother, testified that all of the children were

doing well in her home. They began to regress somewhat when they learned that they

might be placed with their father's parents who live in Ohio. Their father was in prison at

3
the time of trial, and is not the subject of this proceeding. Ramey reiterated that N.K. told

her that appellant had put a "chip" inside him so she would know where he was. Ramey

said when the children came into her home in 2009, they were malnourished physically

and emotionally "were a mess." She and her husband taught them personal hygiene

and how to eat. She testified that the older boys told her that C.K., the three-year-old,

would be hit on the mouth with a belt by appellant and C.K.'s grandmother. On cross

examination, she agreed that everything she knew about K.J., she learned through the

children.

Mary Ann Menning, the Court Appointed Special Advocate ("CASA") volunteer

assigned to the case, said that she visited appellant's home only one time. She testified

that the yard was overgrown, the garage was full of boxes, and it was not organized.

She described appellant as very gracious. Inside the home, there were boxes and

debris, dirty dishes were stacked everywhere and the middle of the floor was all black.

The children's bedroom was the "closest to normal." She would not have recommended

the boys to be returned to this home. Menning got the impression when she was there

that appellant had "given up." She thought appellant intended to get the children back,

but was unable to take the first step. Menning opined that it was in the children's best

interest that appellant's parental rights be terminated.

K.J. testified that neither she nor her husband ever used corporal punishment on

the children. She denied that there was spanking or whipping while the children were in

her care. She disputed all of the testimony presented by the CASA volunteer and others.

Counsel pointed out that all of the information the trial court was hearing was passed to

4
the adult witnesses by the children. K.J. testified that she kept a journal and did

everything CPS asked her to do. She said the children were happy while in her care.

There was never any follow-up by CPS after the children were taken from her home.

She thought it was possible that the two older boys fabricated what had happened to

them. She said the children reported incidents to her regarding appellant and the

grandmother's boyfriend.

Appellant testified that her home has running water and electricity. If given the

opportunity, she could finish up the housekeeping services that were supposed to occur.

She said she attended counseling and completed a parenting plan. She claimed that

she e-mailed Amy Sanders, who was supposed to do the housekeeping services, to let

her know when she returned from the holidays. Appellant testified that she was waiting

to hear from Sanders, but did not. Appellant testified that she wants to visit the children,

but the children's doctor advised against it. She stated that she thought the children

probably think she doesn't care for them because she is prohibited from visiting them.

According to appellant, N.K. told her that if she did not marry his father "he will make it to

where he would never see me again . . ." She believed that D.G. was being coerced into

saying things against her. She did not force her children to eat feces or drink urine. She

was never told that the boys were being molested by her mother's boyfriend. No one

had ever abused her children in her presence. Appellant testified that she had many

caseworkers involved in the case, which made it difficult to get the services she needed.

Dawn Bustamonte, a Department caseworker, who had been assigned the

children's case since May 2010, testified about whether appellant completed all of the

5
required services. She ultimately opined that as of December 2010, appellant had not

completed her service plan and had not insured that her home was safe and sanitary.

During cross-examination, Bustamonte noted that an individual named Boone was

supposed to have contacted appellant for counseling. She does not know if Boone ever

contacted appellant to start services. She said she would never use Boone again,

presumably because she failed to follow-up with appellant. The last time Bustamonte

saw appellant was September of 2010.

Amy Sanders, who performs housekeeping services for the Department, testified

that she had never met appellant. She emailed her in November and December of 2010

to make an appointment to meet. Sanders told appellant that she would be at appellant’s

house on December 3, 2010. She did not get a response from appellant, and when she

went to the house, no one answered the door. Sanders noted that when she arrived at

the home, the washer was running in the garage. Sanders left a card, but received no

further response from appellant. In January, appellant e-mailed Sanders to ask her to

make an attempt to come to the house or e-mail her. Appellant had been out of town for

the holidays. Sanders did not contact appellant again because the case had been

closed.

II. STANDARD OF REVIEW

Involuntary termination of parental rights involves fundamental constitutional rights

and 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. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.

6
App.—Corpus Christi 2006, no pet.). Termination must be supported by clear and

convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re D.S.P., 210 S.W.3d

at 778. This intermediate standard falls between the preponderance of the evidence

standard of civil proceedings and the reasonable doubt standard of criminal proceedings.

In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex.

App.—Fort Worth 2006, pet. denied). It is defined as 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 re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

In reviewing the legal sufficiency of the evidence supporting parental termination,

we should "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." In re J.L., 163 S.W.3d at 85. We must assume that the trier of fact

resolved disputed facts in favor of its finding if it was reasonable to do so. Id. We must

also consider undisputed evidence, if any, that does not support the finding. Id. at 86.

In reviewing the evidence for factual sufficiency, we must give due deference to the

fact finder's findings and not supplant the court's judgment with our own. In re H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire record, a

fact finder could reasonably form a firm conviction or belief that the parent violated the

relevant conduct provision of section 161.001(1) of the Texas Family Code and that the

termination of the parent-child relationship would be in the best interest of the child. In re

C.H., 89 S.W.3d at 28. If, in light of the entire record, the disputed evidence that a

7
reasonable fact finder could not have credited in favor of the finding is so significant that a

fact finder could not reasonably have formed a firm belief or conviction in the truth of its

finding, then the evidence is factually insufficient. In re H.R.M., 209 S.W.3d at 108.

III. STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

Section 161.001 of the Texas Family Code sets forth the grounds upon which the

court may involuntarily terminate a parent-child relationship. TEX. FAM. CODE ANN. §

161.001 (West Supp. 2011). In this case, the Department sought termination pursuant

to subsections (D) and (E) of section 161.001 of the family code. See id. The trial court

found that appellant had: (1) knowingly placed or allowed the children to remain in

conditions or surroundings which endanger the physical or emotional well-being of the

children; and (2) engaged in conduct or knowingly placed the children with persons who

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

Id. § 161.001(1)(D) & (E).

A trial court may order termination if it finds by clear and convincing evidence that

the parent has knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child. Id. §

161.001(1)(D). Endangerment is defined as exposing to loss or injury, to jeopardize. In

re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Under

subsection (D), we examine the evidence related to the environment of the child to

determine if the environment is the source of endangerment to the child's physical or

emotional well-being. In re D.T., 34 S.W.3d 625, 632 (Tex. App.—Fort Worth 2000, pet.

denied).

8
 The parent's conduct does not necessarily have to be directed at the child. See

Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 195 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). Conduct that subjects a child to a life of

uncertainty and instability endangers a child's physical and emotional well-being. See In

re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). Abusive or

violent conduct by a parent may produce an environment that endangers the physical or

emotional well-being of the child. In re J.T.G., 121 S.W.3d at 125. The requisite

endangerment may be found if the evidence shows a parent's course of conduct that has

the effect of endangering the child's physical or emotional well-being. See Smith v.

Sims, 801 S.W.2d 247, 250 (Tex. App.—Houston [14th Dist.] 1990, no writ).

Under subsection (E), the relevant inquiry is whether evidence exists that the

endangerment of the child's physical well-being was the direct result of appellant's

conduct, including acts, omissions, or failures to act. See TEX. FAM. CODE ANN. §

161.001(1)(E); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th

Dist.] 2005, no pet.) ("[A] child is endangered when the environment or the parent's

course of conduct creates a potential for danger which the parent is aware of but

disregards."); see In re J.T.G., 121 S.W.3d at 125. Additionally, termination under

subsection (E) must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required. In re J.T.G., 121

S.W.3d at 125; see TEX. FAM. CODE ANN. § 161.001(1)(E). The specific danger to the

child's well-being may be inferred from parental misconduct standing alone. In re R.W.,

129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).

9
 Here, the evidence was contested. The trial court was faced with weighing the

veracity of the children's outcries against appellant's and K.J.'s denials of wrongdoing.

The evidence concerning the children's outcries of abuse and neglect, relayed to their

counselor and court appointed advocate, was admitted without objection. It was within

the trial court's discretion to believe that the children's grandmother's boyfriend sexually

abused the children and appellant knew. The trial court could also have believed that

appellant sexually abused one child and beat all of them. The trial court could have also

believed that appellant totally failed to provide a safe and sanitary environment for the

children.

It is the trial court's function, as the trier of fact, to judge the credibility of the

witnesses, assign the weight to be given their testimony, and resolve any conflicts or

inconsistencies in the testimony. In re R.W., 129 S.W.3d at 742. The trial court was

entitled to believe all, part, or none of the testimony of any witness. In re T.N., 180

S.W.3d 376, 382–83 (Tex. App.—Amarillo 2005, no pet.). Based upon the evidence, the

trial court could have reasonably formed a firm belief or conviction that appellant

knowingly placed or allowed the children to be placed in conditions or surroundings that

endangered their physical or emotional well-being, or that she engaged in conduct or

knowingly placed the children with a person who engaged in conduct that endangered the

physical or emotional well-being of the children. See TEX. FAM. CODE ANN. §

161.001(1)(D) & (E). We overrule issues two and three.

10
 IV. BEST INTEREST OF THE CHILDREN

By her first issue, appellant asserts that the trial court erred in determining that

termination was in the children's best interest. In deciding whether termination is in a

child's best interest, the fact-finder may consider the following non-exhaustive list of

factors outlined by the Texas Supreme Court: (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 person seeking custody;

(5) the programs available to assist those persons in promoting the best interest of the

child; (6) the plan for the child by those individuals or by the agency seeking custody; (7)

the acts or omissions of the parent that may indicate that the existing parent-child

relationship is not appropriate; (8) the stability of the home or proposed placement; and

(9) any excuse for the acts or omissions of the parents. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976); see In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth

2001, no pet.). "'Best interest' does not require proof of any unique set of factors, nor

does it limit proof to any specific factors." In re D.M., 58 S.W.3d at 814. The party

seeking termination need not prove that each of the Holley factors favor termination, and

the same evidence of acts or omissions used under section 161.001(1) of the family code

may be probative in determining the best interests of the child. See In re A.A.A., 265

S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

There was testimony that the children were doing well in foster care. The foster

parents hoped to adopt them. The children were doing better emotionally and were

happy. They want to remain with the foster parents. There was evidence before the

11
trial court from which it could have concluded that the existing parent-child relationship

was not appropriate. Taking into consideration all of the evidence in the record, we hold

that a reasonable fact-finder could have formed the firm belief or conviction that it was in

the best interest of the children to terminate appellant's parental rights. Thus, the

evidence supporting the trial court's best interest finding is legally and factually sufficient.

We overrule issue one.

V. REASONABLE EFFORTS TO RETURN THE CHILDREN

By appellant's fourth issue, she argues that the evidence admitted at trial was

legally and factually insufficient to show that the Department had made reasonable efforts

to return the children to the mother. The trial court's ruling was based upon subsections

(D) and (E) of section 161.001(1) of the family code. Subsection (N) of section

161.001(1) discusses constructive abandonment and requires the Department "to make

reasonable efforts to return the child to the parent." TEX. FAM. CODE ANN. §

161.001(1)(N). Section 161.003 of the Texas Family Code, titled "Involuntary

Termination: Inability to Care for Child," also requires reasonable efforts to return the

child in circumstances where termination is sought under that section. Id. § 161.003.

However, in this case, termination was not sought under these sections. Although the

evidence was contested with respect to whether the Department's difficulties in providing

services was appellant's fault or the Department's, resolution of that issue was not

necessary to the trial court's ruling. Regardless, the trial court could have properly

weighed the conflicting evidence in favor of the Department. We overrule issue four.

12
 VI. CONCLUSION

Having overruled all of appellant's issues, we affirm the judgment of the trial court.

ROSE VELA
Justice

Delivered and filed the
1st day of March, 2012.

13