In the Interest of P.M., et al., Children--Appeal from 57th Judicial District Court of Bexar County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 04-03-00161-CV

Case Date: 12/03/2003

Plaintiff: Rosco, Inc. d/b/a Grand Prairie Country Club

Defendant: Horizon Distributors, Inc.--Appeal from County Court at Law No. 2 of Travis County

Preview:In the Interest of P.M., et al., Children--Appeal from 57th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-03-00161-CV IN THE INTEREST OF P.M., J.H., A.H., AND N.H., CHILDREN From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2001-PA-01425 Honorable Juan Gallardo, Judge Presiding (1) Opinion by: Phylis J. Speedlin, Justice Sitting: Sarah B. Duncan, Justice Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Delivered and Filed: December 3, 2003 AFFIRMED Maria Espinoza Hernandez ("Maria") appeals the judgment of the trial court terminating her parental rights to her four children. In four issues, Maria contends that the evidence was factually insufficient to support the three grounds of termination found by the trial court and to support that termination was in the best interest of the children. We overrule Maria's issues and affirm the judgment. Background Maria is the mother of four children: P.M., J.H., A.H., and N.H. The Texas Department of Protective and Regulatory Services (the "Department") petitioned to terminate Maria's parental rights to her three oldest children, P.M., J.H., and A.H., in August 2001. The Department subsequently amended its petition to include N.H. The Department alleged that P.M.'s biological father was Epolio Martinez ("Martinez"). Martinez could not be located prior to trial. Joel Hernandez ("Hernandez") was alleged to be the father of J.H, A.H, and N.H. Shortly before trial, Hernandez voluntarily relinquished his parental rights to all three children. A bench trial was held. At the conclusion of trial, the trial court terminated the parental rights of Maria and both fathers. Maria timely appealed the trial court's order. At Maria's request, findings of fact and conclusions of law were subsequently entered by the trial court Standard of Review In proceedings to terminate the parent-child relationship, the Department must establish that the parent committed one or more acts or omissions listed in the Texas Family Code and must also prove that termination of the parent-child relationship is in the best interest of the child. Tex. Fam. Code Ann. 161.001 (Vernon 2002); In re S.D., 980 S.W.2d 758, 761-62 (Tex. App.--San Antonio 1998, pet. denied). Because the termination of parental rights involves fundamental constitutional guarantees, both the grounds for involuntary termination and the best interest of the child must be proven by clear and convincing evidence. See In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing evidence 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 proved. Tex. Fam. Code. Ann. 101.007 (Vernon 2002). For purposes of factual sufficiency, the appellate standard for reviewing termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re C.H., 89 S.W.3d at 25. Under this standard, we give due consideration to evidence that the fact finder could reasonably

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have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Additionally, we consider "whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient if, in light of the entire record, a reasonable fact finder could not have credited disputed evidence in favor of the finding by a firm belief or conviction. Id. Analysis In her first two issues, Maria argues that the evidence is factually insufficient to support the trial court's findings that she (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being, and (3) failed to complete her court ordered service plan. See Tex. Fam. Code Ann. 161.001(1)(D), (E), (O) (Vernon 2002). Because we conclude that the evidence is factually sufficient to support the trial court's findings under subsection (E) of section 161.001(1), we need not address the sufficiency of the evidence regarding the trial court's other findings in support of termination. See In re R.D., 955 S.W.2d 364, 367 (Tex. App.--San Antonio 1997, pet. denied). The Texas Family Code permits termination if a parent "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." Tex. Fam. Code Ann. 161.001(1)(E) (Vernon 2002). On its face, subsection (E) permits termination if the party seeking termination proves parental conduct that itself causes endangerment. In re R.D., 955 S.W.2d at 367. Termination under sub-section (E) requires more than a single act of omission; rather, a conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex. App.--Fort Worth 2000, pet. denied); In re R.D., 955 S.W.2d at 367. A child is endangered when they are jeopardized or exposed to loss or injury. See Tex. Dep't of Human Servs v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.D., 955 S.W.2d at 367. Endangerment can be proved through actions and omissions. See In re D.T., 34 S.W.3d at 634. Further, the endangering acts need not be directed at or cause actual injury to the child. Boyd, 727 S.W.2d at 533. Domestic violence and a propensity for violence may be considered as evidence of endangerment. See In re J.I.T.P., 99 S.W.3d 841, 844-45 (Tex. App.--Houston [14th Dist.] 2003, no pet.); In re B.J.B., 546 S.W.2d 674, 677 (Tex. App.-Texarkana 1977, writ ref'd n.r.e.). Additionally, allowing children to live in unsanitary conditions and neglecting their physical conditions can be endangerment. See In re M.C., 917 S.W.2d 268, 269-70 (Tex. 1996). Maria had a long history with the Department that began when she was a child. As a mother, she was first referred to the Department in April 1997 when P.M. was only one month old. Tammy Wilbur ("Wilbur"), the family case worker since May 2002, testified that the Department had nine referrals on Maria for neglectful supervision and physical neglect. According to Wilbur, the referrals were a result of Maria's lack of parenting skills and concern for the children. The Department was concerned that Maria would either leave the children alone or with her mother, an alcoholic. Wilbur also testified that Maria had a history of taking the children to the hospital emergency room for matters that a normal parent exercising good judgment could have "cleared up." Edward Espinoza ("Espinoza"), the case worker responsible for removing the children, testified that on one occasion the children had to be taken to a doctor for severe diaper rash. Sores were found on the bodies of P.M. and J.H. which the doctor attributed to filth. Espinoza also testified that during his first family visit he found the children in soiled diapers. He questioned Maria about the diapers and whether she could change the children. Maria refused and had her mother change the children. Espinoza stated that the Department offered Maria family services, which included information on hygiene, but she refused these services. Finally, when the children were removed, there was evidence that P.M.'s teeth were so rotten they required surgery. The trial court heard testimony regarding the condition of the home when the children were removed. The apartment contained numerous dangerous conditions, including roaches, broken furniture, trash, food, and bad plumbing. Espinoza testified that the apartment was infested with roaches which were in the bedroom, the living area, the kitchen, and on the high chair. Feces and paper clogged the toilets in both bathrooms. There was a strong unpleasant odor in the apartment, and Espinoza learned that repair men would not enter Maria's apartment because it was so unclean. According to Espinoza, similar conditions existed in the apartment up to one year before the children were removed.
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There was also testimony from Wilbur who conducted a home visit to Maria's new apartment shortly before trial. At that time, she also observed roaches. As a result, Wilbur had concerns about whether the apartment's condition could affect the children's welfare. At trial, Maria acknowledged that she took the children to the hospital on several occasions. She stated that she refused the Department's services because she did not believe that the Department had a basis for taking the children away. She was unaware of P.M.'s dental condition. Maria also explained that she was trying to do laundry the day the children were removed. Notwithstanding the fact that the Department presented photographs of the apartment on the day of removal, Maria denied the existence of roaches. (2) Maria acknowledged she had plumbing problems and stated that she had requested that the problems be fixed. Her request, however, went unanswered. Maria's sister and brother testified that they never saw Maria's house dirty. The trial court also heard testimony regarding the existence of family violence. Wilbur testified that Maria and Hernandez have a history of violence and of splitting up and reuniting. Wilbur testified that just as the Department's case began, Hernandez assaulted Maria. He was placed on probation. Subsequently, he was arrested again for assaulting Maria at a hospital. Pamela Gillinger ("Gillinger"), another family case worker, testified to two violent altercations between Maria and Hernandez which occurred at the Department during and after visits with the children. In the first incident, Maria confronted Hernandez outside the Department by his car. She tried to prevent him from leaving by grabbing his shirt. The second incident, witnessed by Gillinger's intern, occurred during Hernandez's visit with N.H. Maria entered the room, yelled at Hernandez, and asked him to swear by the children that he was not cheating. She then lunged at Hernandez scratching him between the eyes. Gillinger arrived after the incident had occurred and confirmed that she saw a scratch between Hernandez's eyes. According to Gillinger, the police were called, and a report was made. In speaking with Hernandez, Gillinger learned that Maria hits him "all the time" and that Hernandez would hit Maria as well. Hernandez communicated that he could not control his emotions or anger around Maria. Espinoza also testified that the police had been called to Maria's home on reports of family violence. Notwithstanding their violent history, the evidence reflects that at the time of trial Maria had moved into the same apartment complex as Hernandez. Gillinger generally testified that children are not in a safe environment where there is the potential for violence between adults. In her opinion, repeated contacts that involve physical and verbal assault endanger the physical and mental health of children. Wilbur specifically testified that she believed Maria was engaging in conduct that was endangering the children. Maria admitted that she argued with Hernandez, but not in front of the children. She admitted she had been injured by him on one occasion. She denied, however, hitting Hernandez. Maria acknowledged that she reunited with Hernandez in the past to see if they could work things out. At the time of trial, however, she and Hernandez had not been together for three months. She acknowledged that she is living in the same apartment complex as Hernandez, but she does not speak to him. Maria's brother testified that he never saw any violence exhibited in front of the children. The record also contains evidence regarding Maria's conduct and attitude towards the children. According to Espinoza, prior to the children's removal, Maria made various statements that she did not want them and felt overwhelmed. It appeared to Espinoza that Maria's feelings regarding the children were dictated by Hernandez's feelings. For example, on one occasion, she informed Espinoza that if Hernandez did not care for the children neither did she. Wilbur testified that Maria stated she did not want the children because they reminded her of their father. Maria also informed Wilbur that she drank beer and wine coolers while she was pregnant with N.H. Additionally, according to Wilbur, Maria had failed to take the children to medical appointments in the past. Maria denied that she stated she did not want the children. She also denied telling Wilbur that she drank wine coolers during her pregnancy. She testified that she went through prenatal care for all her children. Maria attributed her failure to make one medical appointment to the fact that she could not cross a busy street to reach the office. She testified that she loves her children. The record also contains evidence regarding the effect of the home conditions on the children and their special needs. According to Wilbur, when the children get angry they strike out and hit one another. They have hit Department case

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workers. Specifically, P.M. has problems controlling his aggression. Gillinger testified that in the first few visits with his mother, P.M. would lash out and lunge at her. According to Sharon Swanson, a psychologist who treated P.M., P.M. learned his aggressive behavior from his family environment. While P.M. has been in the Department's care, his aggression has lessened. There are continuing medical concerns for N.H. According to Wilbur, N.H. may have fetal alcohol syndrome. He is behind in his development and is in need of medical care in the future. Finally, A.H. and J.H. have developmental delays and need speech therapy. According to Wilbur, Maria cannot meet the special needs of her children. At trial, Maria acknowledged the children's special needs and stated she would "try her best" to take care of them. She acknowledged P.M.'s aggression and attributed his improvement to the medication he was taking and not to the fact that he had been removed. Finally, the record contains evidence of Maria's conduct and interaction with the children since they were removed from the home. Wilbur observed some of Maria's visits with the children and described them as "chaotic." The children would climb and stand on chairs. On some occasions, Wilbur had to intervene to assist Maria. Maria was unable to parent all four children at the same time. Additionally, she was not affectionate to the children. Swanson also observed Maria with the children and testified that she was "unable to engage" the children unless directed to do so. Like Wilbur, Swanson had to intervene and assist Maria with the children on some occasions. Gillinger also testified that Maria had problems giving her attention to the children, and, as a result, she had concerns about Maria's ability to care for them. Having reviewed the entire record, giving due consideration to the evidence that the fact finder could reasonably have found to be clear and convincing, we conclude that the trial court could have reasonably formed the firm belief or conviction that Maria engaged in conduct that endangered the children's emotional or physical well-being. See In re J.F.C., 96 S.W.3d at 266. Accordingly, we overrule Maria's first three issues. In her fourth issue, Maria contends that the evidence is factually insufficient to support the trial court's finding that termination of her parental rights is in the best interest of the children. We disagree. In determining the best interest of a child, we consider a number of factors, including: (1) the desires of a child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the stability of the home; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) the excuse for the act or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list of factors is not exhaustive, nor are all these factors required to be proven before parental rights are terminated. In re C.H., 89 S.W.3d at 27. In addition, Texas courts recognize a strong presumption that the best interest of a minor is usually served by the natural parent retaining custody. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). There was evidence regarding Maria's inability to meet the basic physical and emotional needs of her children. Prior to the children's removal, Maria was frequently referred to the Department for neglectful supervision or physical neglect. When the children were in her care, they suffered from diaper rash and sores attributed to the lack of a sanitary environment and which required medical attention. Maria refused to change the children's diapers even when requested by Espinoza. Over the years, she had made statements that she did not want the children. When the children were removed, they were found in an apartment that lacked working plumbing and was infested with roaches. There is also evidence that Maria could not meet the physical and emotional needs of her children even after they were removed. Wilbur and Gillinger testified that Maria could not control the children when she would visit them, thereby raising concerns about their safety. Swanson testified that Maria would not engage the children by either reading to them or playing games. Both Wilbur and Gillinger expressed their concern that Maria could not parent or care for all four children. Similarly, Swanson testified that Maria appeared overwhelmed with having to care for all the children. Wilbur also testified to the special needs of the children. She specified that N.H. will need expensive medical therapy and care in the future. All the children have developmental delays and will need some form of therapy in the future.

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For example, A.H. will need speech therapy and physical therapy. J.H. will also need speech therapy. P.M. is in therapy for his aggression. In Wilbur's opinion, Maria could not meet these special needs. There was also evidence regarding Maria's failure to complete the family service plan, improve her parental skills, or complete individual counseling. She had a pattern of not attending individual counseling sessions, and even missed an appointment that was scheduled two weeks before trial. While she completed parenting classes, the parental skills instructor saw no changes and recommended additional parenting services. According to Wilbur, another individual counselor described his sessions with Maria as unproductive because she was not participating. Swanson also testified that Maria was not consistent in using her services. Maria did not attend any therapy sessions in December 2002, a month prior to trial. She characterized Maria as "not engaged in learning anything from the therapy sessions or participating in assignments . . . ." At the time of trial, Maria had only recently participated in job training, a service that had always been available to her. In sum, according to Wilbur, Maria had made minimal efforts to comply with the service plan although she was capable of more. There was also evidence regarding the emotional and physical danger to the children both now and in the future. The evidence establishes a history of family violence. Moreover, there was evidence of a violent altercation between Maria and Hernandez in the front of one child while they were at the Department. When Maria and Hernandez were together, the Department offered family counseling which they refused. Although Maria testified that she and Hernandez were no longer together, Maria acknowledged that she had moved into the same apartment complex as Hernandez. Given her history with Hernandez and her close proximity to his home, Wilbur had concerns that their separation was not genuine. Maria testified that she had missed appointments in the past because she would forget. She has since developed a plan of reminding herself of appointments. She also stated that she would be late for appointments because she lacked a vehicle and would have to take the bus. As a result of her parenting classes, Maria testified she had learned to place limits on her children, and keep a clean house. From her women's support group, Maria had improved her self-esteem. She explained that she decided to see an individual counselor unaffiliated with the Department in order to keep her sessions confidential. The Department, however, was unaware of the existence of this counselor, and Maria could not remember his name. After reviewing the factors applicable to this case and considering the entire record, we conclude that the evidence was factually sufficient to support a finding by clear and convincing evidence that termination of Maria's parental rights is the in the best interest of the children. See In re J.F.C., 96 S.W.3d at 266. Accordingly, we overrule Maria's fourth issue. The trial court's judgment is affirmed. Phylis J. Speedlin, Justice 1. The Honorable Pat Boone is the presiding judge of the 57th Judicial District Court, Bexar County, Texas. The Honorable Juan Gallardo presided at the non-jury trial of this matter and signed the judgment being appealed. 2. The photographs are not included in the record on appeal.

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