In The Interest Of R.H, D.P., Minors--Appeal from 150th Judicial District Court of Bexar County

No. 04-98-00051-CV
IN THE INTEREST OF R.H. & D.P., Minor Children.
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 96-PA-00321
Honorable Peter Sakai, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: December 30, 1998

AFFIRMED

Shirley Hall appeals from a decree terminating her parental rights to her natural children, R.H. and D.P. At trial, the jury found that Hall had endangered the well-being of her children and that termination of her parental rights would be in the best interests of the children. Because we find the evidence sufficient to support termination of Hall's parental rights, we affirm.

Factual Background

The Texas Department of Protective and Regulatory Services first received a referral on Shirley Hall in September of 1991 indicating that her children had been subjected to physical neglect. A second referral was received in January of 1992 for neglectful supervision. The caseworker first assigned to the case, Gwendolyn Thorton, reported that she had difficulty working with Hall because she was difficult to locate, a poor communicator, and immature. Thorton tried to provide services for Hall, but Hall would not follow through with any of the programs. Nevertheless, Thorton closed the case because legal grounds for removal did not exist at that time.

A third referral was received in June of 1993 for neglect and lack of supervision. At that time, Hall and her children were living with Hall's mother and grandmother. The new caseworker, Guadalupe Salas, found that the home was unkempt, and while the boys were in clean clothes, they were not bathed. Hall was enrolled in a safety plan which allowed extended family to take care of the children until services could be initiated. Salas referred Hall to the Family Preservation Unit and Christopher Boyle took over the case in July of 1993.

Boyle noted that at times the grandmother, Mrs. Sistrunk, had little tolerance for the boys and eventually asked Hall and the children to move out of her home. Boyle also testified that Hall had been diagnosed as a paranoid schizophrenic and would not always take her medication. In October 1993, Hall was arrested and incarcerated for trespass. Because Boyle was concerned about Sistrunk being the primary caretaker, he took the children to a shelter and later allowed them to stay with their alleged paternal grandmother, Mrs. Hood. After two months, the children moved in with Hall's sister, Patricia Woodward.

The next caseworker, Linda Sanchez, also coordinated services in which Hall indicated that she would participate. However, Hall failed to take advantage of any services provided by the State. Sanchez, believing that the children would be raised by competent relatives, closed the case.

In February of 1996, the Department received another referral indicating that R.H., D.P., and their great-grandmother, Sistrunk, had been in the Salvation Army shelter and that Sistrunk had physically abused the children and threatened to kill D.H. in his sleep. The police placed the boys in a children's shelter and the boys indicated that they did not want to go home. No relative of the children, including Hall, cooperated or came forward to retrieve the children. The State obtained emergency legal custody of the boys. A psychological evaluation of the boys performed by Dr. Michael Berler indicated that both children had acute stress disorder.

Rick Bernstein, who was assigned as Hall's caseworker, met with Hall where she was living with her stepfather. She indicated that she would do whatever was necessary to get her children back. However, she failed to appear in court for the initial hearing. When Bernstein later met with Hall she appeared intoxicated and was verbally abusive to Bernstein. Bernstein was able to contact Hall at the same location at a later date. However, she was so intoxicated that he could not wake her. Although Hall missed the next hearing, she signed a service plan. Hall promised to enter rehabilitation, but failed to do so.

At a hearing in September of 1996, Hall tested positive for cocaine. Hall's cousin, Theresa Jones, offered to have the children placed with her. However, this placement was denied as the State had some concerns about possible drug use in the home and the ability of Jones to properly care for the children.

Hall was incarcerated in December of 1996 through March of 1997 and again in August 1997. She voluntarily entered a drug rehabilitation program in which incarceration was mandatory. R.H. and D.P. have been in a foster home since their removal from the shelter. Hall has written them from jail and requested visitation.

Standard of Review The parental right is not only "essential" but is "a basic civil right of man." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Termination of parental rights is final, irrevocable, and severs "the parent-child relationship for all purposes, except for the right of inheritance." In the Interest of D.L.N., 958 S.W.2d 934, 936 (Tex. App.--Waco 1997, pet. denied). Consequently, appellate courts must strictly scrutinize an involuntary termination of parental rights in favor of the parent as these proceedings involve the loss of fundamental constitutional rights. See Holick, 685 S.W.2d at 20; In the Interest of D.L.N., 958 S.W.2d at 936.

When the case at trial must be proved by clear and convincing evidence, factual sufficiency challenges are reviewed by this court under an intermediate standard of review.(1) See In the Interest of B.T., 954 S.W.2d 44, 46 (Tex. App.--San Antonio 1997, pet. denied). "In reviewing a jury's findings based on a clear and convincing standard, we ask ourselves 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.; Tex. Fam. Code Ann. 101.007 (Vernon 1996).

Involuntary Termination of Parental Rights

The jury rendered a verdict pursuant to Tex. Fam. Code Ann. 161.001 (Vernon Supp. 1998).(2) A trial court may terminate the parent-child relationship if the factfinder determines (1) that there are "grounds" -- that a parent committed one or more of the acts contained within section 161.001, and (2) that termination is in the best interest of the child. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 1998). In Hall's sole point of error, she contends that the evidence is factually insufficient to support the termination of her parental rights, specifically challenging the finding that involuntary termination is in the best interest of the children. Hall does not challenge the finding that termination "grounds" exist.

Some of the factors to consider when determining whether termination is in the best interest of the 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 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, 371-72 (Tex. 1976) (noting that this list is not exhaustive). We will consider each relevant factor as it applies to this case.

R.H. and D.P. did not testify at trial. However, testimony from the witnesses affirms that the boys love their mother and that an emotional relationship exists between them. Nevertheless, R.H. and D.P. have indicated to their foster parent, Densyl Harrell, that they do not want to live with their mother. Additionally, because Hall is incarcerated she would not be able to presently fulfill the children's needs. Past involvement with the boys indicates that Hall's parental abilities are untrustworthy. Evidence was presented and Hall has admitted that she has a drug problem. It is uncertain whether Hall will remain drug-free as she admitted that she went into rehabilitation only when she was threatened with the loss of her children. She testified that she has failed in the past to take advantage of opportunities to have her children returned to her. As a result of Hall's care or lack of it, the boys have suffered from low self-esteem and acute distress disorder.

We recognize that Hall voluntarily entered a rehabilitative program. If Hall remains drug-free, she may have the potential to be a capable parent. She has previously attended college on scholarship and worked at several jobs. The State also offers several programs that could assist Hall in her management of the children, although in the past she has not taken advantage of them. Hall testified that the drugs caused her to act improperly, and that once off the drugs she can provide a better life for the children. Additionally, although she admitted that she has failed to take her medication for her schizophrenia in the past, she had been taking her medication regularly for the three months prior to trial.

Hall testified that she has made plans for the boys to stay with Peggy Hood until she is released. Hood, who is not a relative but who at one point believed that she was, has taken care of the boys in the past. She is willing to sign a long-term placement agreement or adopt the children. However, past care of the children by Hood indicates that she may not be able to provide for the children. At one point, she was forced to take the children to the children's shelter because she could not provide for them financially.

On the other hand, Harrell reports that the boys are happy living with him. Harrell testified that the boys have bonded with him and his family while they have lived with him for the two years preceding trial. The record reveals that the boys' grades and attitudes have improved while they have been in his care. Harrell has provided the boys with a safe, stable, and positive environment. As a result, they have shown a great deal of improvement in his care. Harrell is willing to let the boys stay with him as long as the Department allows, but he was not clear about whether he would adopt them or enter into a permanent agreement agreeing to be responsible for the boys until they reached the age of 18.

The record reveals that for many years, R.H. and D.P. have lived in an unstable and unsafe environment while under the supervision of their mother. Hall has failed to demonstrate the parenting skills necessary to take care of her children. Only since moving away from Hall have R.H. and D.P. begun to show positive improvement in their self-esteem and education. Reviewing the evidence, we conclude that the evidence was sufficient to produce in the mind of a rational factfinder a firm belief that termination of Hall's parental rights was in the best interest of the children.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. We recognize that a conflict exists among the courts of appeals regarding the appropriate standard of review for factual sufficiency challenges when clear and convincing evidence is required at trial. Some courts apply the traditional sufficiency standard. See In the Interest of D.L.N., 958 S.W.2d at 940. However, this court applies, as do others, an intermediate standard in light of the significance of the constitutional right in question. In the Interest of B.T., 954 S.W.2d 44, 46 n.5 (Tex. App.--San Antonio 1997, no writ); In the Interest of D.L.N., 958 S.W.2d at 940.

2. Section 161.001 provides in pertinent part:

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; [or]

(E) 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; [and]

(2) that termination is in the best interest of the child.

Tex. Fam. Code Ann. 161.001 (Vernon Supp. 1998).

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