In the Interest of D.N., et al., Children--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00800-CV
IN THE INTEREST OF D.N., et al., Children
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2002-PA-00548
Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 28, 2003

AFFIRMED

Appellant appeals the trial court's judgment terminating her parental rights with respect to D.N. and a younger sibling, J.N. On appeal, appellant argues that the evidence is factually insufficient to show that the termination of her parental rights was in the best interest of the children. We overrule appellant's issue and affirm the judgment of the trial court.

Background

On September 14, 2001, the Texas Department of Protective and Regulatory Services ("the Department") filed an original petition for protection of a child, for conservatorship, and for termination in a suit affecting a parent-child relationship. With respect to D.N. and J.N., the Department asked the trial court to terminate the parental rights of L.N., the children's mother. (1) The petition listed statutory grounds and recited that termination of L.N.'s parental rights would be in the best interest of the children. On September 30, 2002, the trial court began a non-jury trial; L.N. became ill and unable to testify, so the trial was continued until October 15. At trial, the Department asked the trial court to take judicial notice of the file. The Department also presented the testimony of the caseworker, who noted that L.N had a history of allegations of physical and emotional abuse and neglect regarding D.N. and J.N., as well as a record of criminal charges, including injury to a child. L.N. reportedly has been diagnosed with schizoaffective disorder, cocaine abuse, and adult anti-social behavior. The caseworker also testified that L.N. had not completed a family service plan because she was incarcerated pending resolution of drug possession charges. While incarcerated, L.N. had allegedly placed D.N. and J.N. with elderly relatives who were unable to properly care for them. Both children told the caseworker that they would rather stay at Girls and Boys Town than go home. In the caseworker's opinion, it would be in the best interest of the children if L.N.'s parental rights were terminated. In her defense, L.N. testified that she had been unable to complete the family service plan because she was incarcerated. While in prison, she had taken a substance abuse program which taught her not to use drugs again. The trial court ruled that terminating L.N.'s parental rights would be in the best interest of the children. At L.N.'s request, the trial court issued findings of fact and conclusions of law. L.N. also filed a motion for new trial, which the trial court denied. On appeal, L.N. argues that the evidence was factually insufficient to show that terminating her parental rights would be in the best interest of her children.

Discussion

When an appellant challenges the factual sufficiency of the evidence supporting the termination of parental rights, the court of appeals will use the clear and convincing standard of review. In the Interest of H.C., 942 S.W.2d 661, 663 (Tex. App.--San Antonio 1997, no writ). In conducting a review under a clear and convincing standard, we ask ourselves whether the record contains sufficient evidence to have produced in the mind of a rational fact finder a firm belief or conviction as to the truth of the allegations sought to be established. Id.

The court may order termination of parental rights if the court finds by clear and convincing evidence that termination is in the best interest of the child and that the parent has committed one of a list of statutory grounds for termination. Tex Fam. Code Ann. 161.001 (Vernon 2002). Both the elements--statutory grounds and the best interest of the child--must be established. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). In determining the best interest of the child, one may consider the child's desires and current and future physical and emotional needs, as well as the current and future physical and emotional danger the child may face. In the Interest of R.D., 955 S.W.2d 364, 367 (Tex. App.--San Antonio 1997, pet. denied). Regarding the person seeking custody, one may consider her parenting abilities, the stability of her home or other proposed placement, any acts or omissions indicating that the existing parent-child relationship is improper, and any excuse for those acts or omissions. Id.

The record contains clear and convincing evidence, based on the case file and the testimony of the caseworker and L.N., concerning the inadequate environment L.N. provided for her children and the physical and emotional dangers it posed to D.N. and J.N. The record also contains evidence about D.N.'s and J.N.'s desires and their physical and emotional needs, which supported their current placement at Girls and Boys Town. Accordingly, the evidence was factually sufficient to support the trial court's finding that the termination of L.N.'s rights was in the best interest of D.N. and J.N.

Conclusion

We overrule appellant's sole issue on appeal and affirm the judgment of the trial court.

Karen Angelini, Justice

1. The original petition also concerned C.M., the older sister of D.N. and J.N., but after C.M. turned 18, the cause of action concerning D.N. and J.N. was severed and proceeded to trial. In addition, the original petition sought to terminate the parental rights of R.M., the children's father; R.M. failed to appear for trial and at the October 15, 2002 hearing his parental rights were terminated.