In the Interest of D.G., D.G., S.G., & P.G., Minor Children--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00893-CV
IN THE INTEREST OF D.G., D.G., S.G., and P.G. (1)
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-PA-00944
Honorable Juan Gallardo, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 5, 2003

AFFIRMED IN PART; DISMISSED IN PART

This is a parental termination case. The Department of Protective and Regulatory Services ("the Department") brought suit seeking to terminate the parental rights of (1) Pete Perez, Jr. to his children, S.G. and P.G and (2) Veronica Gloria to her children D.G.(f), D.G.(m), S.G., and P.G. (2) The Department alleged Perez sexually abused D.G.(f), his step-daughter. Perez brings this appeal of the decree terminating his parental rights, urging two issues: (1) the evidence is insufficient to support a termination finding by clear and convincing evidence and (2) the evidence is legally and factually insufficient to support the court's finding that termination is in the best interest of the children. We overrule all of Perez's issues and affirm the judgment of the trial court. With respect to Veronica Gloria, we dismiss her appeal because she failed to pay the applicable filing fee.

Filing Fee

To date, Veronica Gloria has failed to pay the applicable filing fee in this appeal. Texas Rule of Appellate Procedure 5 provides,

A party who is not excused by statute or these rules from paying costs must pay--at the time an item is presented for filing--whatever fees are required by statute or Supreme Court order. The appellate court may enforce this rule by any order that is just.

Tex. R. App. P. 5.

On October 6, 2003, we ordered Veronica Gloria, on or before October 16, 2003 to either (1) pay the applicable filing fee in this appeal or (2) provide written proof to this court that she is excused by statute or these rules from paying the filing fee. See Tex. R. App. P. 20.1 (providing that party who qualifies as indigent under rule 20 may proceed without advance payment of costs). We warned that if Veronica Gloria failed to respond within the time provided, we would dismiss her appeal. See Tex. R. App. P. 42.3(c).

Veronica Gloria failed to pay the filing fee or provide written proof that she is excused from paying the filing fee. We, therefore, dismiss Veronica Gloria's appeal. See id.

Applicable Law and Standard of Review

With respect to his appeal, Perez argues that the evidence is insufficient to support a termination finding by clear and convincing evidence and the evidence is legally and factually insufficient to support the court's finding that termination is in the best interest of the children. Termination of parental rights may be ordered if the trial court finds, by clear and convincing evidence that (1) the parent has committed at least one enumerated act set forth in section 161.001(1) of the Family Code; and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001 (Vernon 2002).

Texas courts recognize a strong presumption that the best interest of the child is served by the natural parent retaining custody. See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) ("This court has always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents."); In re D.M., 58 S.W.3d 801, 814 (Tex. App.--Fort Worth 2001, no pet.). When determining the best interest of the child, the factfinder may consider any of the following factors: the desires of the child, the present and future emotional and physical needs of the child, the present and future emotional and physical danger to the child, the parental abilities of the individuals seeking custody, the programs available to assist these individuals in promoting the child's best interest, the plans for the child by these individuals or by the agency seeking custody, the stability of the home or proposed placement, the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

We apply the clear and convincing evidence standard of proof in parental termination cases. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence means 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 established. Tex. Fam. Code Ann. 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d at 264.

In a legal sufficiency review when the burden is clear and convincing evidence, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 265. We must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. at 266. And, we should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean we must disregard all evidence that does not support the finding. Id. If, after conducting our legal sufficiency review of the record evidence, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.

In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. The inquiry must be whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. Id. We should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

The Evidence

Numerous witnesses testified at trial about the children and their relationship to their parents. As we have dismissed Gloria's appeal, we will focus on the testimony only as it pertains to Perez's appeal.

A. Testimony of Joni Chavez-Martell

Joni Chavez-Martell, a licensed professional counselor, is a therapist who treated Perez's wife, Veronica Gloria. Veronica was sent to her because Perez allegedly had inappropriate sexual contact with Veronica's 13-year-old daughter, D.G.(f). Chavez-Martell also met with all four children. She believed that D.G.(f) was telling the truth about being victimized and she believed that Perez was the perpetrator. However, Chavez-Martell testified that D.G.(m), D.G.(f)'s brother, told her that he did not believe D.G.(f)'s accusations. According to D.G.(m), because D.G.(f) had Downs' Syndrome, she could not articulate well. Additionally, from Chavez-Martell's review of the file, she was aware that, after D.G.(f) was removed from her home by the Department, she had changed her story about Perez sexually abusing her. In spite of this, Chavez-Martell believed that D.G.(f) was telling the truth. In Chavez-Martell's opinion, D.G.(f) had recanted because of all the trouble she believed she was causing to her family. According to Chavez-Martell, it would be in the best interest of the children if Veronica Gloria's former in-laws, the Glorias, adopted the children.

B. Testimony of Nichole Guadiano

Nichole Guadiano is a CPS Family Base worker. When CPS first began the investigation, Veronica Gloria agreed that Perez would move out of the home and would have no contact with the children. Later, Veronica and the children appeared at the Department for an assessment with Guadiano; Veronica claimed she did not know where Perez was. The children, however, informed Guadiano that Perez was downstairs in the car waiting for them. Despite agreeing to not have contact with the children, Perez had driven Veronica and the children to their appointment. A Department employee approached Perez in the vehicle and asked for his identification. Perez lied and gave the employee a false name. In response, the children were removed from the home.

Guadiano testified that Perez's two older children had previously accused him of sexual abuse; a jury, however, found Perez not guilty of sexual abuse. Additionally, Guadiano testified that Veronica and Perez had, on occasion, left their children in the care of Veronica's former in-laws, the Glorias.

C. Testimony of Cillie Anderson

Cillie Anderson, a supervisor with Child Protective Services, was present when Perez drove the family to their assessment appointment. She spoke with Perez and asked him why he had driven the children when he was not supposed to have contact with them. Perez told her that he had driven Veronica and the children because they needed a ride to the appointment. In Anderson's opinion, parental rights should be terminated because the parents had engaged in conduct that endangered the children. And, she testified that although Perez had completed some parts of the Department's plan created for him, he had not completed the individual counseling.

D. Testimony of Annette Gibbs

Annette Gibbs, a reunification caseworker with the Department, testified that during the initial reunification attempt with Veronica, D.G.(f)'s brother, D.G.(m), did not do well in school. Gibbs testified that living with the Glorias, he was doing very well; indeed, all the children were doing very well under the care of the Glorias.

E. Testimony of Margaret Booker

Margaret Booker, the court-appointed child advocate for the children, testified that she had spent time with the children and had gotten to know them fairly well. She opined that the children were doing very well with the grandparents. According to Booker, the children have stability, a regular schedule, are happy, and are doing great. Moreover, they are together. Additionally, the children had told Booker that Perez had been present in the home when he was not allowed to be there. According to Booker, parental rights should be terminated because of Perez's lack of follow-through with the things he had been asked to do. She is aware, however, that D.G.(f) has a kind of fantasy world and some things she says do not make a lot of sense.

F. Testimony of Monica Hernandez

Monica Hernandez, a CPS caseworker, was not officially assigned to this case but she had seen Veronica and Perez in the Department throughout the case. One evening, Hernandez witnessed Veronica, Perez, and the two youngest children together in a grocery store parking lot at a time when Perez was not allowed to have contact with the children because of the allegations pending against him. At this point in time, the children had been removed from Veronica and Perez, but had been returned to Veronica. It appeared to Hernandez that the four of them had gone grocery shopping together. Hernandez reported the incident to the appropriate caseworker, and the children were again removed from Veronica Gloria's care.

G. Testimony of Carol Ann Saldana

Carol Ann Saldana, the legal ongoing caseworker for the family, was aware that at some point D.G.(f) had recanted and had named both her grandfather and someone at school as her assailants. However, Saldana also testified that D.G.(f) had told her that Perez is a bad man, that he had touched her, and that she was scared of him coming into her room. In Saldana's opinion, parental rights should be terminated because there is risk of further harm to the children if they are returned to the parents. She testified that Perez had not been truthful and honest about his contact with Veronica and the children. According to Saldana, during their time living with the Glorias, the children have been stable and have felt safe for the first time in their lives. Thus, in Saldana's opinion, the Glorias should be allowed to adopt the children.

H. Testimony of Cheryl Camarillo

Cheryl Camarillo, a therapist and registered sex offender treatment provider, conducted both group and individual therapy for the children and Perez. In her opinion, Perez is not very connected with reality and has told quite a few untruths. During one session, S.G. acted fearful and referred to Perez as a monster. The children also indicated that Perez had been in contact with them even though he was not supposed to be in contact with them. S.G. told Camarillo that even when the children had first been removed from the home, Perez had spent time with them. D.G.(m) also indicated that Perez had been in the home during the attempted reunification process. The children indicated that Perez would hide in the closet so that he would not get caught in the house.

D.G.(m), however, expressed to Camarillo that D.G.(f) is a liar and that Perez is a good guy. Despite D.G.(m)'s statements, Camarillo testified that Perez is a perpetrator of sexual abuse and that his frequent lying, lack of touch with reality, manipulative-type behaviors, and refusal to follow authority causes a risk for the children. Camarillo testified that she believes S.G. has been victimized in some way by Perez. Camarillo attributed this belief to S.G.'s fearfulness, her inability to sleep, and her reactions to hearing Perez's name. During play therapy, Camarillo concluded that S.G. felt her home was not a safe environment. Also, during play therapy with P.G., Camarillo observed that P.G. believes parental figures are not stable. During her visits with D.G.(f), D.G.(f) made statements about Perez's sexual abuse. D.G.(f) also indicated that Perez was very physically abusive with her. D.G.(f) told Camarillo she could not sleep in her bed because Perez would sleep in her bed. Following visits with her mother, however, D.G.(f) made statements indicating that she had lied. But, upon further questioning, D.G.(f) stated that Perez did touch her and hurt her. Camarillo is aware that D.G.(f) has mentioned other names with regard to sexual contact.

Camarillo testified to an occasion when Perez was scheduled for a family session. Perez showed up for the visitation, but told Camarillo that he was nervous and scared. He said he did not know how the children were going to interact with him because he had not seen them in so long. The children never showed up. Later, Camarillo discovered that Perez had actually been seen with the children the evening before at a grocery store. The children were again removed from the home.

Camarillo also testified that Perez had been given an Abel Assessment, a test that monitors response to sexual interest. Although the assessment indicated "unable to determine," it also indicated a lack of honesty.

In Camarillo's opinion, it was in the best interest of these children to terminate parental rights. Because the children were doing well with Veronica's former in-laws, the Glorias, Camarillo also believed that it would be in the children's best interest to remain in that home.

I. Testimony of Mary Louise Gloria

Mary Louise Gloria is the grandmother of D.G.(f) and D.G.(m). Her son, Reynaldo Gloria, was previously married to Veronica Gloria. After Veronica and Reynaldo divorced, Veronica and Perez began seeing one another. On two occasions, Veronica, Perez, and the children lived with the Glorias. At the time of trial, the children were living with the Glorias and were doing well. Mary Louise Gloria testified that she and her husband would like to adopt the children, and that they would be willing to allow Veronica to see the children.

According to Mary Louise Gloria, D.G.(f) told her that Perez had slapped her. Gloria did not believe her until S.G. confirmed the allegation. D.G.(f) also told Gloria that Perez had molested her. Again, Gloria did not believe her until the Department removed the children. D.G.(f) told Gloria that Perez had removed her pants and that she had seen his private parts.

J. Testimony of Monica Perez

Monica Perez is Veronica and Reynaldo Gloria's daughter. Her siblings are D.G.(f), D.G.(m), S.G., and P.G. According to Monica, D.G.(f) has never told her about sexual abuse involving Perez. And, D.G.(f) makes up stories. On occasion, D.G.(f) has stated that she is pregnant and that she has an imaginary boyfriend. In her opinion, Perez is very good with the children. Monica testified that she does not believe Perez did anything to the children. Moreover, D.G.(f) has said that she is sorry she lied. In Monica's opinion, Perez's rights should not be terminated.

K. Testimony of Pete Perez

Perez, the father of S.G. and P.G., helped raise D.G.(f) and D.G.(m). When the CPS caseworker contacted Perez and Gloria, stating that CPS needed to investigate some allegations, the family was living at a motel. At the motel, the caseworker told Perez that he had to leave or she would remove D.G.(f). He chose to leave. On the day Veronica and the children were to have their first assessment with the Department, Perez saw them waiting for a bus in the rain so he gave them a ride to their appointment. According to Perez, other than the grocery store incident, he was not in contact with the children during the pendency of the case. That day, he happened to run into his family while grocery shopping, so they shopped together. Perez denied he ever touched D.G.(f) inappropriately.

Perez agreed that the Department gave him a service plan to comply with, and he was told to have no contact with the children. Although he attended parenting classes, empowerment classes, and group therapy, he did not attend individual counseling.

According to Perez, before the children were removed, he and the children got along perfectly. While D.G.(f) had told him that she had a boyfriend and that she was pregnant, she never said that she had been sexually molested. He believes that because Veronica was taking Mary Louise Gloria's son, Reynaldo, to court to collect back child support, Mary Louise Gloria convinced D.G.(f) to accuse him of sexually abusing her.

In the past, Perez was accused of sexually abusing two of his other children, Melissa and Jennifer. He believes that because he was trying to obtain custody of them from his former wife, his children made up the allegations against him.

Discussion

Finding by clear and convincing evidence that termination was in the children's best interest, the trial court entered a decree terminating Perez's rights to S.G. and P.G. The court also found by clear and convincing evidence that Perez had violated two of the enumerated statutory grounds for termination. (3)Perez challenges the trial court's statutory grounds findings by urging that there is no clear and convincing evidence that he sexually or physically abused the children.

The evidence with regard to whether Perez engaged in sexual or physical abuse is disputed. There is evidence that D.G.(f) told several witnesses that Perez had sexually molested her. D.G.(f) said Perez was sexually and physically abusive toward her, that Perez would sleep in her bed, that he touched her and hurt her, that Perez had removed her pants and that she had seen his private parts. There is also evidence that D.G.(f) had recanted, but that this may have been because she was concerned about the trouble she felt she had caused the family. And, there is evidence that she named others as assailants. There is also testimony that D.G.(f) has imaginary friends and makes up things. On the other hand, Perez had previously been accused of sexually abusing two of his other children, but was acquitted after a criminal trial. Looking at the disputed facts, the CPS workers who were assigned to the family were of the opinion that D.G.(f) was telling the truth about Perez sexually abusing her.

The evidence further shows that Perez was untruthful, was out of touch with reality, engaged in manipulative-type behaviors, and refused to follow authority. When he was restricted from having contact with the children, he nevertheless drove the family to their CPS assessment appointment and shopped with them at a grocery store. When confronted by CPS workers, he was not truthful. There is also evidence that he had been in the home when he was prohibited from being near the children and that he hid in the closet to escape detection.

Applying the clear and convincing legal sufficiency standard of review, we find there is legally sufficient evidence to find Perez violated the statutory prohibitions found by the court. A reasonable trier of fact could have formed a firm belief that the findings were true. And, a reasonable factfinder could resolve the disputed facts in favor of the court's findings. A reasonable factfinder could have disbelieved the evidence that refutes the court's findings.

Applying the clear and convincing factual sufficiency standard, we give due consideration to evidence the factfinder could reasonably have found to be clear and convincing. We find that the evidence is such that a factfinder could reasonably form a firm belief about the truth of the State's allegations. Thus, the evidence is neither legally nor factually insufficient with regard to whether Perez violated the statutory prohibitions found by the court. We overrule Perez's first issue on appeal.

Turning to the children's best interest, we will consider the Holley factors enumerated above. Although the children did not testify to their desires, there is evidence from the counselors and CPS workers that the children had expressed a desire to stay with Veronica's former in-laws, the Glorias. There was also evidence from counselors and CPS workers that Perez's behavior causes a risk for the children. Both S.G. and D.G.(f) were fearful of Perez and there were indications that they did not feel their home was a safe environment. The counselors and CPS workers testified that termination is in the best interest of the children and that the Glorias should be allowed to adopt the children. There was evidence that the children were doing well and were being provided much-needed stability in the Glorias' home. Further, several of the witnesses and Mary Louise Gloria herself testified that it would be appropriate for Veronica to have some access to the children if the Glorias were allowed to adopt them. As stated previously, the evidence shows Perez acted in a way that indicates an inappropriate parent-children relationship: there is evidence that he has sexually abused D.G.(f) and that both D.G.(f) and S.G. are fearful of him. And, of course, Perez had contact with the children at times he was prohibited from seeing them.

Again, applying the clear and convincing legal insufficiency standard, and considering the evidence in the light most favorable to the court's finding, a reasonable trier of fact could have formed a firm belief that the finding was true. And, insofar as the factual sufficiency review is concerned, giving due consideration to evidence the factfinder could reasonably have found to be clear and convincing, a factfinder likewise could reasonably form a firm belief about the truth of the State's allegations. We, therefore, overrule Perez's second issue on appeal.

Conclusion

Because Veronica Gloria failed to pay the filing fee, we dismiss her appeal. With regard to Pete Perez's appeal, having found that his issues on appeal lack merit, we affirm the trial court's judgment.

Karen Angelini, Justice

1. To distinguish between the two minor children who both have initials "D.G.", we will refer to the female as D.G.(f) and the male as D.G.(m) throughout this opinion.

2. The Department also sought termination of parental rights of Reynaldo Gloria, father of D.G.(f) and D.G.(m). The trial court's decree terminated the parental rights of all parties; however, this appeal only concerns the termination of Pete Perez, Jr.'s and Veronica Gloria's parental rights.

3. The trial court found Perez had knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children and that he had engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children.