In the Interest of Michelle Alcoser, Et Al., Children--Appeal from 285th Judicial District Court of Bexar County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-99-00809-CV

Case Date: 11/08/2000

Plaintiff: IDA LEE HOWARD COATS

Defendant: THE STATE OF TEXAS--Appeal from 24th District Court of De Witt County

Preview:In the Interest of Michelle Alcoser, Et Al., Children-Appeal from 285th Judicial District Court of Bexar County
No. 04-99-00809-CV In the Interest of M.A., D.A., P.A.A., R.A., and M.A., Children From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 98-PA-01517 Honorable John J. Specia, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Sarah B. Duncan, Justice Delivered and Filed: November 8, 2000 AFFIRMED Henrietta Alcoser appeals the trial court's judgment terminating the parent-child relationships with her five children. We affirm. Factual and Procedural Background On October 30, 1998, the Texas Department of Protective and Regulatory Services filed suit for the protection of children in an emergency and a petition in a suit affecting the parent-child relationship. The Department later amended the petition to seek termination of the parental rights of Henrietta and Paul Alcoser as to their five children: M.A., born December 14, 1987; D.A., born March 9, 1994; P.A., born September 1, 1995; and R.A. and M.A., twins, born December 6, 1996. After a bench trial, the trial court found the parents had knowingly placed or allowed the children to remain in endangering conditions and engaged in conduct that endangers the children, and that termination of their parental rights was in the best interest of the children. See Tex. Fam. Code Ann. 161.001(1)(D)-(E), (2) (Vernon Supp. 1999). Thereafter, the trial court rendered judgment terminating Henrietta and Paul Alcoser's parent-child relationship with the five children. Henrietta Alcoser's motion for new trial was overruled by operation of law and she timely appealed. In one point of error she contends the evidence is factually insufficient to support the finding that termination of her parental rights is in the best interests of the children. Standard of Review We review a challenge to the factual sufficiency of the evidence to support an involuntary termination of parental rights using a clear and convincing standard of review. In re H.C., 942 S.W.2d 661, 663 (Tex. App.-San Antonio 1997, no writ). Under this standard we review the evidence and determine "whether sufficient evidence was presented to produce in the mind of a rational factfinder a 'firm belief or conviction as to the truth of the allegations sought to be established.'" Id. at 663-64 (quoting In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980)). Discussion Among the factors the trial court may consider in determining the best interest of a child, are: "(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger

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to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent." Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The record established Paul Alcoser was frequently out of town on work assignments, leaving Henrietta to care for the five children. There is evidence Henrietta repeatedly left the four young children alone or in the care of the oldest child, who was ten years old at the time the original petition was filed. In August 1997, Henrietta left three of the children alone outside in a wading pool. As a result, the children were removed from the home and Henrietta was charged with the felony offense of endangering a child. She pled guilty and was on probation at the time of trial. After this incident, the parents substantially complied with the Department's service plan and were reunited with their children in December 1997. Nevertheless, there were further referrals for neglect. The incident resulting in the final removal of the children from the home occurred in October 1998 when Henrietta left the children alone at the house at about 5:00 p.m. and did not return until about 9:00 the next morning. She told a caseworker she had "needed a break". The Department also documented unsanitary and unsafe conditions in the home over a period of time. Although Department intervention resulted in temporary improvement, after a time, the conditions returned. The electric power in the home was disconnected on several occasions and, in April 1998, one of the twins, then sixteen months old, drank kerosene that was being used for lighting. At trial, neither Henrietta nor Paul could articulate a plan for alleviating the conditions that resulted in the removal of the children. At the time of trial, all five children were placed with paternal relatives, and the Department recommended continuing the placement with a plan of eventual adoption. A Department caseworker testified the homes provide safe and nurturing environments and family members testified of their desire and ability to provide caring homes for the children. The oldest child, who had failed the previous year of school because of excessive absences, was doing well in school at the time of trial. One of the boys was diagnosed with a hearing impairment, causing speech delay, and was being treated by an expert. The children have all indicated their desire to stay with these families, and the attorney ad litem for the children advocated that termination of Henrietta's parental rights and placement with these relatives would be in their best interests. The conclusion reached by the trial court and supported by the record is that, although Henrietta Alcoser loves her children, she is unable to care for them. The record contains sufficient evidence to produce in the mind of a rational factfinder a firm belief or conviction that termination is in these children's best interest. We therefore affirm the trial court's judgment. Sarah B. Duncan, Justice Do not publish

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