In the Interest of C.M.A., D.A. and C.E.A. Minor Children--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-99-319-CV

IN THE INTEREST OF

C.M.A., D.A., AND C.E.A., MINOR CHILDREN

From the 19th District Court

McLennan County, Texas

Trial Court # 97-2400-1

O P I N I O N

The Texas Department of Protective and Regulatory Services ( DPRS ) filed suit to terminate the parental rights of Rebecca Ayers with respect to three of her four children. DPRS placed the fourth child, M.A., with his biological father. As grounds for termination, DPRS alleges that Ayers: 1) knowingly placed or knowingly allowed her children to remain in conditions or surroundings which endangered their physical or emotional well-being; 2) engaged in conduct or knowingly placed her children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; and 3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of her children. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2001). A jury found that Ayers s parental rights should be terminated and that termination is in the best interest of the children. In her first point, Ayers requests us to review her sufficiency complaints which were not properly preserved for appeal. She argues in points two through four that the evidence is legally and factually insufficient to support an affirmative finding on any of the grounds for termination alleged. She also argues in a fifth point that the evidence is legally and factually insufficient to support a finding that termination is in the best interest of the children.

Test for Termination of Parental Rights

The natural right existing between parents and their children is of constitutional dimension. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re A.M.C., 2 S.W.3d 707, 710 (Tex. App. Waco 1999, no pet.). Termination is a drastic remedy and as such it can never be justified without the most solid and substantial reasons. Id.; see also In Re R.E.W., 545 S.W.2d 573, 581 (Tex. App. Houston [1st Dist.] 1976, writ ref d n.r.e.). The final and irrevocable nature of termination requires that the petitioner justify termination by clear and convincing evidence. See Spangler v. Texas Dep t of Protective & Regulatory Servs., 962 S.W.2d 253, 256 (Tex. App. Waco 1998, no pet.).

In proceedings to terminate the parent-child relationship brought under section 161.001 of the Family Code, the petitioner must establish two elements. First, the petitioner must prove one or more acts or omissions enumerated in the statute. See Richardson v. Green, 677 S.W.2d 497, 499 (Tex.1984). Second, the petitioner must prove, that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam. Code Ann. 161.001; Richardson, 677 S.W.2d at 499. Both elements must be established, with regard to each child, and proof of one element does not relieve the petitioner of the burden of proving the other. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976).

Standard of Review on Appeal

In reviewing the legal sufficiency of the evidence on a matter for which Ayers did not have the burden of proof at trial, we consider only the evidence and inferences that tend to support the finding and ignore all evidence and inferences to the contrary. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). Under factual sufficiency, we will sustain a point of error if the trier of fact could not reasonably find the existence of the fact to be established by clear and convincing evidence. See Spangler, 952 S.W.2d at 257. When we review a factual sufficiency challenge in the parental termination context, we review all of the evidence under the clear and convincing standard. See Spangler, 952 S.W.2d at 256.

Preservation of the Complaint

Ayers asks in her first point that we review her sufficiency complaints even though she has failed to preserve, in the trial court, her sufficiency complaint for appellate review in the manner required in civil cases. See Cecil v. Smith, 804 S.W.2d 509, 510-12 (Tex. 1981); Crow v. Burnett, 951 S.W.2d 894, 899 (Tex. App. Waco 1997, pet. denied). We have recently held that because of the constitutional dimension of the parent-child relationship and the heightened burden of proof required in termination cases we will review the sufficiency of the evidence to support the core issues, if assigned as error before us, regardless of whether the complaint has been procedurally preserved at trial. See In re A.P., No. 10-00-105-CV, slip op. at 7, 2001 Tex. App. LEXIS 1329, at *10-11 (Tex. App. Waco Feb. 28, 2001, no pet. h.). Therefore we will review Ayers s sufficiency complaints. Point one is sustained.

Failure to Comply with a Court Order

Ayers contends in her fourth point that the evidence is legally and factually insufficient to support a finding that she failed to comply with the provisions of a court order that stated the actions necessary to obtain the return of her children. The court mandated that Ayers: 1) attend individual counseling; 2) contact a doctor and follow through with the doctor s advice about medication for her depression and other health problems; 3) attend parenting classes; 4) obtain and maintain a safe and stable residence; 5) use available resources to attend appointments; 6) obtain employment; and 7) pay monthly child support in the amount of five dollars per child.

DPRS argues that although Ayers participated in individual counseling sessions, she failed to attend many of the sessions without excuse. Ayers argues that she was unable to attend because she was unable to find transportation to the therapist s office. DPRS argues that they arranged for her to have transportation to her counseling appointments, but Ayers failed to utilize them. Also, Dr. Aliceann Brunn testified that she terminated Ayers s counseling sessions per clinic policy because she had missed two appointments without calling in. However, Ayers testified that she and her boyfriend both attended the required parenting classes and graduated from the program.

Ayers testified that she contacted a doctor who prescribed medication for her depression. She also testified that she discontinued using the initial medication without her doctor s permission because it made her aggressive. She testified similarly that she discontinued use of a second medication prescribed for her depression because it made her ill.

DPRS introduced evidence that many safety concerns have existed in Ayers s past residences. DPRS argues that her residence has not remained stable and introduced evidence that she has moved thirteen times in the two years before trial. CASA volunteer Ann Campbell testified that she had concerns about Ayers s current residence because it did not have heat and air conditioning or a refrigerator. Ayers argues that she had made arrangements to purchase a refrigerator and a new stove before her children would be returned and that her current residence has been consistent.

DPRS argues that Ayers has not obtained stable employment as required by the court order. Ayers contends that she is employed currently and was only terminated from her past employment because she did not have her GED and because she could not come to work due to the birth of her sister s child. DPRS introduced evidence that her employment was sporadic and she was unemployed for several months at a time.

DPRS contends that Ayers has not paid child support according to the court order. Kim Gonzales testified that Ayers has paid approximately one hundred dollars in child support during the nineteen months prior to trial. Ayers argues that although she did not pay all of the required child support, she purchased the children clothes and toys in excess of the amount of child support required, and, thus, her failure to pay the required amount should not be held to be a violation of the court order. However, the court order specifically requires Ayers to pay monthly child support to DPRS in the amount of five dollars per child.

Viewed in the light most favorable to the judgment, we find that the evidence is legally sufficient to support the judgment that Ayers did not comply with the court order that specifically established the actions necessary for her to obtain the return of her children. Under the clear and convincing evidence standard of review, we likewise find that the jury could have reasonably found that Ayers failed to comply with the court order. Therefore, the evidence is factually sufficient to support the verdict. Accordingly, we overrule Ayers s fourth point. As her remaining points address alternate grounds for termination, and only one ground need be found legally and factually sufficient, we need not address these points.

Best Interest of the Children

Ayers argues in her fifth point that the evidence is legally and factually insufficient to support the judgment that termination is in the best interest of the children. In determining the best interest of the children, the Texas Supreme Court has iterated a list of non-exclusive factors to be considered. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); Lowe v. Lowe, 971 S.W.2d 720, 724 (Tex. App. Houston [14th Dist] 1998, pet. denied). These factors 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 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.

Id.

Ann Campbell testified that the children are concerned about being returned to Ayers. She testified that C.M.A. stated that she doesn t want to take care of her siblings and wonders whether Ayers will be able to provide a safe home. Kim Gonzales testified that, before the children were removed, they were having developmental problems and the youngest, C.E.A., was not developing within normal limits.

Dr. Brunn testified that Ayers s IQ test results indicated that she is borderline mentally retarded and that she cannot understand the consequences of her actions. Gonzales testified similarly that Ayers is unable to plan more than a day in advance and does not comprehend the needs of her children. She also testified that Ayers is very dependent on other people and cannot function alone. Gonzales and Brunn both testified that, although Ayers has made some improvements in her parenting skills, she is at her maximum capability and cannot care for three young children. Gonzales also expressed great concern over the lack of stability in Ayers s life. She cited the large number of boyfriends and the multiple residences over the past several years.

Dr. Brunn and therapist Jamie Love both testified that, although the initial foster care period was difficult, the children have made significant improvements since being in foster care. Gonzales testified that the adoption possibilities for the children are good. She also testified that there are many families who are willing to adopt all three children together. Campbell testified that the children all had made marked improvement since being in foster care and in her opinion it was in the best interest of the children to be adopted.

After a review of the record in the light most favorable to the judgment, we find that the evidence is legally sufficient to support the judgment that termination is in the best interest of the children. We likewise find that, under the clear and convincing standard, the jury could have reasonably found that termination is in the best interest of the children. Therefore, the evidence is factually sufficient to support the verdict. Accordingly, we overrule Ayers s fifth point.

The judgment of the trial court is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 25, 2001

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