In the Interest of J.D.E., M.L.E. & M.J.E., children--Appeal from 266th District Court of Erath County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

In the Interest of J.D.E., M.L.E., & M.J.E., children

No. 11-02-00194-CV B Appeal from Erath County

The trial court entered an order terminating the parental rights of Patricia Desha Elsey and Rocky Lee Elsey to their children, 3-year-old J.D.E., 2-year-old M.L.E., and 1-year-old M.J.E. Rocky Lee Elsey appeals from the trial court=s order terminating his parental rights to his children.[1] We affirm.

The trial court found by clear and convincing evidence that Rocky: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, TEX. FAM. CODE ANN. ' 161.001(1)(D) (Vernon 2002); (2) 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, TEX. FAM. CODE ANN. ' 161.001(1)(E) (Vernon 2002); and (3) failed to comply with the provisions of a court order that established the actions necessary for him to obtain the return of the children, TEX. FAM. CODE ANN. ' 161.001(1)(O) (Vernon 2002). The trial court also found that termination of the parent-child relationship was in the best interest of the children, TEX. FAM. CODE ANN. ' 161.001(2) (Vernon 2002). Rocky brings four issues on appeal in which he argues that the evidence is both legally and factually insufficient to support the trial court=s findings.

In determining whether the evidence is legally sufficient to support the trial court=s findings, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King=s Estate, 244 S.W.2d 660, 661 (Tex.1951). We must affirm the judgment if there is any probative evidence supporting the judgment. Jacobs v. Danny Darby Real Estate, Inc., 750 S.W.2d 174 (Tex.1988); Yepma v. Stephens, 779 S.W.2d 511 (Tex.App. - Austin 1989, no writ). In reviewing the factual sufficiency of the evidence, we determine 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 17 (Tex.2002).

The Texas Department of Protective and Regulatory Services (the Department) became involved with the Elsey family on November 13, 2000. On that day, the Stephenville Police were called to the Elsey residence at 629 North Clinton Street for a Awelfare concern@ about children living in unsanitary conditions. Officer Michael L. Hall testified at the termination hearing that the house did not have running water, which was a violation of a local code, and that the house was dirty. The oven was open which provided the only source of heat for the house. The toilet was full and was running over into the floor because there was no sewer hookup. Officer Hall stated that there were dirty mattresses in the house that appeared to be soiled with urine. Officer Hall testified that the house was condemned. The Department was called concerning the conditions of the house. The children were not removed from Rocky and Patricia at that time because an arrangement was made for the children and Patricia to stay with a relative. Rocky was not living with the family at that time.

The Department=s next involvement with the Elsey family came in December 2000. There was conflicting testimony at the termination hearing about the events necessitating the Department=s involvement. Pam Pierson, the manager of the Texaco station in Hico, testified that, in December 2000, Rocky and Patricia were using the pay phone outside of the store. Rocky, Patricia, and the children were at the store for over an hour. Rocky and Patricia then left the store together in a semi- truck, leaving the children on the sidewalk outside of the store. Some store employees brought the children into the store. Pierson left the store for a while; and, when she returned, the children were still there. Pierson said that she contacted the children=s maternal grandmother, but that the grandmother would not come to get them. Pierson testified that the employees of the store told her that they had called the Department. An employee=s son came and took the children. Pierson said that, after seeing the children for three or four days Agoing from one house to another to stay,@ she called the Department herself and learned that the Department had never been notified of the situation.

Rocky testified at the termination hearing that it was his understanding that Patricia had arranged for the children to stay with a friend, Melissa Bradley.[2] Rocky testified that he called the Department for permission to leave the children with Bradley. Rocky said that someone at the Department told him to give Bradley a written document with permission to seek medical care and with emergency contact numbers. Rocky introduced a copy of the letter as evidence at the hearing. Stacie Croft, with the Department, testified that she received a call from Rocky in which he told her that they were going to leave the children with a family friend. Croft confirmed that she told Rocky to leave emergency contact numbers with the friend and to leave a statement concerning medical care.

Deborah Nowlin, a supervisor for the Department, testified at the termination hearing that on December 5, 2000, the Department investigated a report that Bradley was no longer willing to care for the children. The Department removed the children that day, and they were placed in foster care. The trial court entered an order on December 8, 2000, appointing the Department temporary managing conservator of J.D.E. and M.L.E.[3] The children were placed in foster care.

During the time J.D.E. and M.L.E. were in foster care, the department developed a service plan for Rocky and Patricia, and the trial court ordered Rocky and Patricia to comply with the service plan. The service plan required Rocky and Patricia to visit the children, attend individual counseling, attend parenting classes, and locate and maintain proper housing. Nowlin described Rocky and Patricia=s performance as Aminimal@ in regards to participating in the services offered to them. Croft testified that Rocky and Patricia scheduled 30 visits with their children and that they did not attend 14 of those scheduled visits. Croft also stated that Rocky and Patricia had 61 opportunities to attend counseling. Rocky and Patricia scheduled 32 counseling appointments; and, of those scheduled, Rocky attended 18 appointments, and Patricia attended 20 appointments.

The children were returned to Rocky and Patricia on November 9, 2001. The Department remained as temporary managing conservator of the children. The court ordered the Department to Amonitor the placement to ensure that the children [were] in a safe environment@ and to remove the children Aif circumstances indicate that the home [was] no longer a safe environment.@

On November 16, 2001, Stephenville police officers responded to a domestic disturbance call at the Elsey home. Officer Hall testified at the termination hearing that the Elseys= neighbors called and reported Aa female being assaulted out in the front yard.@ Officer Hall said that Patricia was Apretty evasive@ about what had happened. Another officer spoke to neighbors who told the officer what had happened. The officers then confronted Patricia with the neighbors= statements, and Patricia then informed the officers that she and Rocky had argued in the front yard. Patricia told the officers that Rocky slapped her, causing her to fall. The officers talked to Rocky later that day. Rocky admitted to the officers that he had argued with Patricia, but he denied slapping her. Rocky told the officers that he had Astumbled into her and pushed her down.@ Officer Hall said that Rocky was arrested for assault. Rocky pleaded guilty to the assault charge.

Officer Brit Ferguson testified at the hearing that Patricia came to the Stephenville Police Department on December 31, 2001, to report that she had been assaulted by Rocky. Patricia told Officer Ferguson that Rocky hit her in the face with his hand and pushed her to the floor. Patricia said that Rocky then hit her face against the floor and twisted her wrist. Rocky was arrested for the assault on February 25, 2002. Rocky testified at the termination hearing that he and Patricia got into an argument and that he hit the walls and busted the coffee table, but that he never hit Patricia. Rocky remained in jail until May 9, the first day of the termination hearing.

Leeca Lynch, with the Department, testified at the hearing that she received information from the Stephenville Police Department that there had been a domestic violence episode in the home. Lynch was making arrangements for Patricia and the children to go to a shelter because of the domestic violence and because she had learned that they were going to be evicted from their home. Lynch said that, while she was making the arrangements, she received a call from an employee of another agency who had been to the Elsey home and found the children home alone. Lynch went to the home and knocked on the door, and the door Aswung open.@ J.D.E. and M.L.E were both standing in the living room, and M.J.E. was screaming and crying. Lynch called for someone in the house, but no one answered. Lynch continued to Aholler@; and, finally, a man came from the back room and said that he was supposed to be watching the children. The man did not know when Patricia had left or when she would return. Patricia later returned to the home. Lynch testified that the house was dirty, that there was a bathtub full of water, and that there was laundry piled up in the kitchen.

Lynch testified at the termination hearing that she talked to Patricia about going to a shelter because of the concerns of domestic violence, because the family was going to be evicted from the home, and because they had to have a safe environment for the children. Patricia was initially unsure about going to a shelter, but she then began packing things for the children. Lynch said that Patricia then asked what would happen if she did not go to the shelter and if she let the Department take the children. Lynch encouraged Patricia to go to the shelter and explained all of the benefits to her. Lynch explained to Patricia that, if she let the Department take the children, it would be hard for her to get the children back. Patricia released all three children to the Department. Lynch said that Patricia was unemotional and that she Anever shed a tear.@ The trial court entered an order on January 23, 2003, appointing the Department as temporary managing conservator of M.J.E.

Rocky testified at the termination hearing that he was doing everything possible to get his children back. Rocky said that if he received custody of the children he planned to move to Oklahoma where he has family and get a job and a house. Rocky stated that he believed the problems with the Department had been because of Patricia and that he intended to divorce her. Rocky=s mother, Patricia Murphy, also testified at the hearing that she would be willing to help with the children if Rocky moved to Oklahoma.

Section 161.001(1)(E) allows for termination of parental rights if the parent Aengaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.@ Under subsection (1)(E), the cause of the danger to the child must be the parent=s conduct alone, including the parent=s actions, omissions, or failures to act. In the Interest of S.H.A., 728 S.W.2d 73, 83 84 (Tex.App. Dallas 1987, writ ref'd n.r.e.). Endanger, as that term is used in the statute, means more than a threat of metaphysical injury or the possible ill effects of a less than ideal family environment. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). It is not necessary that the conduct be directed at the child or that the child actually suffers injury. Texas Department of Human Services v. Boyd, supra. Instead, endanger means to expose to loss or injury or to jeopardize. Texas Deprtment of Human Services v. Boyd, supra. The specific danger to the child=s well being need not be established as an independent proposition, but may instead be inferred from parental misconduct. In the Interest of J.J. and K.J., 911 S.W.2d 437, 440 (Tex.App. - Texarkana 1995, writ den=d).

The record shows that Rocky has a history of alcohol abuse and that he has increased anger when drinking. Rocky testified that he is an alcoholic, but that he has Anot drank@ since December 30, 2002. Rocky testified that he has Aseveral@ charges of public intoxication. After the children were returned to Rocky and Patricia on November 9, 2001, Rocky was arrested twice for assaulting Patricia. Rocky was arrested for the second assault on February 25, 2002, and remained in jail until May 9, 2002. J.D.E. told her counselor that Aher dad had given boo-boos to her mom.@ A parent=s abuse of a spouse can suffice to support termination of the abuser=s parental rights. Spangler v. Texas Department of Protective and Regulatory Services, 962 S.W.2d 253, 260 (Tex.App. Waco 1998, no pet=n); In Interest of B. J. B. and C. E. B., 546 S.W.2d 674, 676 (Tex.Civ.App. Texarkana 1977, writ ref=d n.r.e.). It is not necessary that the children observe the abusive conduct or that the State provide expert testimony that the conduct was reasonably calculated to endanger the physical or emotional well-being of the children. See In the Interest of B. J. B. and C. E. B., supra. There is also evidence in the record that the children were left on at least two occasions without adequate supervision. The record also shows that Rocky did not maintain proper housing for the children.

We find that there is probative evidence to support the trial court=s finding that Rocky 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. We additionally find that the trial court could reasonably form a firm belief or conviction about the truth of the State=s allegation that Rocky 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. Rocky=s second issue on appeal is overruled. Because we have concluded that there is both legally and factually sufficient evidence to support the trial court=s finding under Section 161.001(1)(E), we need not address Rocky=s first and third issues regarding the sufficiency of the evidence to support the trial court=s findings under Section 161.001(1)(D) & (O). Only one finding alleged under Section 161.001(1) is necessary for a judgment of termination. In the Interest of D.M., B.W., and J.C.W., 58 S.W.3d 801, 813 (Tex.App. - Fort Worth 2001, no pet=n); In the Interest of S.F., 32 S.W.3d 318, 320 (Tex.App. San Antonio 2000, no pet=n); see also TEX.R.APP.P. 47.1. However, in order to uphold the judgment of termination, we must also examine the sufficiency of the evidence to support the jury=s finding that termination is in the children=s best interest. In the Interest of D.M., B.W., and J.C.W., supra.

Some of the common factors to evaluate the best interests of a child include: (1) the desires of the 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 individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371 72 (Tex.1976).

Rocky testified that he planned to divorce Patricia and move to Oklahoma where he had family. Rocky intended to get a job in Oklahoma and find housing there. Rocky testified that he would have Ano problem@attending any counseling or courses the court imposed. Rocky=s mother testified that she would be willing to help Rocky if he moved to Oklahoma. Daniel Martin, a counselor who provided services to Rocky and Patricia, testified that the primary issue with Rocky was alcohol abuse. Martin stated that he did not support termination of Rocky=s parental rights. When asked if he believed Rocky and Patricia were Asalvageable@ as parents, Martin stated that that was a Areasonable possibility.@ Martin had spent three or four hours individually with Rocky. The attorney and guardian ad litem for the children suggested that the trial court give Rocky and Patricia Aanother bite at the apple.@

The record shows that Rocky did not consistently attend the services that the Department offered to him. Rocky testified that his mother would show him how to raise the children. However, the record showed that his mother had two other sons, one of whom was in the penitentiary and the other abused drugs. Rocky himself had Aseveral@ charges for public intoxication, a charge for harboring a runaway, as well as one conviction and another pending felony charge for assaulting Patricia. When asked Awhat is different about today than...when we first started this thing?@ Rocky responded, AI reckon nothing.@ Rocky further stated that he did not know why the court should give the children back to them, but then he said that he loved them and wanted to show that he could care for them.

Kathleen Baczynski, the counselor for J.D.E., testified that she initially diagnosed J.D.E. with adjustment disorder with some developmental delays. She further stated that J.D.E. was progressing and that most of the progress was occurring in the foster home. Baczynski stated that J.D.E.=s foster mother was Aactively trying to help this little girl in addressing the issues.@ She said that J.D.E. had bonded to the foster mother and that the foster mother was Aher anchor.@ Baczynski said that the foster home was a Anormal, healthy environment.@

Croft stated that she believed that termination was in the best interest of the children because Rocky and Patricia had not participated in the programs available to them and because they had not shown the changes necessary to provide for the children. Croft stated that the children needed Alifelong parents@ and that it was in the best interest of the children Ato move them on to adoption.@ We find that the evidence is both legally and factually sufficient to support the trial court=s finding that termination of Rocky=s parental rights is in the best interest of the children. Appellant=s fourth issue on appeal is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 10, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Patricia Elsey filed a notice of appeal from the trial court=s order on June 17, 2002. On January 30, 2003, Patricia filed a motion for voluntary dismissal of her appeal with this court. On February 6, 2003, this court entered an order dismissing Patricia=s portion of the appeal.

[2]The record indicates that Patricia had another child from a previous relationship who was also left in the care of Melissa Bradley. That child was not included in the termination order that is the subject of this appeal.

[3]M.J.E. was not born at the time the trial court entered this order.