In the Interest of J. A., a Child--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00196-CV

In the Interest of J. A., a Child,

From the 66th District Court

Hill County, Texas

Trial Court No. 39958

MEMORANDUM Opinion

Jennifer Alexander appeals from a decree terminating her parental rights with respect to her son J.A. Alexander contends in two issues that: (1) the evidence is factually insufficient to support the decree; and (2) the court violated her right to due process and abused its discretion by admitting hearsay testimony. We will affirm.

The Department of Protective and Regulatory Services took custody of J.A. in January 2003 when he was released from a Dallas hospital after having been diagnosed with a rare congenital abnormality known as Hirschsprung s Disease. DPRS removed J.A. from the custody of Alexander and then-husband William because it felt that they were not then willing and able to provide the additional care necessary because of J.A. s condition.

Alexander and William later separated, then she moved from Hillsboro to Abilene where a DPRS courtesy worker coordinated services for her. J.A. remained in the Waco vicinity in foster care. Following a bench trial, the court rendered a decree terminating Alexander s parental rights with respect to J.A. William did not appear for trial, and the court rendered a default judgment against him terminating his parental rights.

Hearsay

Alexander contends in her second issue that the court violated her right to due process and abused its discretion by admitting hearsay testimony.

Alexander s second issue centers on the testimony of Krista Mellott, the DPRS conservatorship worker assigned to J.A. s case, who works in Hill County. After Alexander moved to Abilene, Mellott relied on a DPRS courtesy worker in Abilene to help coordinate services for Jennifer. Much of Mellott s testimony regarding Alexander s compliance with the service plan was based on information she received from the courtesy worker in Abilene.

Alexander particularly complains about the admission of Mellott s testimony that her home in Abilene is not appropriate for J.A. and that Alexander attended only two counseling sessions while in Abilene.

However, Mellott provided similar testimony about Alexander s participation in counseling sessions before Alexander raised an objection. Alexander s own counsel cross-examined Mellott about the condition of Alexander s home. Thus, any error in the admission of the complained-of testimony was rendered harmless by the admission of similar testimony without objection. See Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 & n.62 (Tex. 2004). Accordingly, we overrule Alexander s second issue.

Factual Sufficiency

Alexander contends in her first issue that the evidence is factually insufficient to prove any of the acts or omissions alleged as a basis for termination of her parental rights.

DPRS s first amended petition alleges as grounds for termination that Alexander:

knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child;

engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child;

failed to support the child in accordance with the parent s ability during a period of one year ending within six months of the date of the filing of the petition;

failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child s removal from the parent under Chapter 262 for the abuse or neglect of the child.

SeeTex. Fam. Code Ann. 161.001(1)(D), (E), (F), (O) (Vernon 2002).

On appeal, DPRS relies primarily on the fourth ground as the one for which there is factually sufficient evidence to support the decree.

Mellott testified that the court s orders required Alexander to: (1) pay monthly child support of $25; (2) undergo a psychological evaluation and follow the recommendations resulting from that evaluation; (3) obtain and maintain employment; (4) maintain appropriate contact with J.A.; and (5) maintain appropriate housing.

Mellott testified that Alexander had paid no child support. She testified that the psychological evaluation recommended that Alexander participate in individual therapy sessions and in parenting classes but that Alexander had participated in only one parenting class and in only two therapy sessions during the eighteen months of DPRS involvement in the case. Mellott testified that Alexander s employment record was sporadic during that time period and that she had at least seven different jobs. She testified that Alexander visited J.A. only once and that the visit lasted only thirty minutes even though it was schedule to last ninety minutes. During cross-examination, Mellott testified that Alexander s current residence was a one bedroom apartment consisting of less than 500 square feet and was inappropriate for J.A.

Alexander contradicted Mellott s testimony regarding her compliance with the court s orders. Alexander testified that she mailed two child support payments totaling $293. She offered in evidence a money order receipt (with no reference to the identity of the payee) to support her testimony about one of the payments. She testified that the other receipt was in a jewelry box which had been stolen from her home during a burglary, and she offered in evidence a police report showing that she had reported the burglary to Abilene Police.

Alexander testified that she had attended individual therapy sessions at Abilene Christian University quite a few times and had attended two parenting classes but did not learn anything new from them. Alexander also testified that the courtesy worker in Abilene had not been helpful at all in arranging therapy or parenting classes and that Alexander had to make all the arrangements herself.

Alexander testified that she had worked only four different jobs during the period of DPRS s involvement but now had a full-time job with a grocery in Abilene which would provide insurance coverage for J.A.

Alexander explained that she did not visit J.A. more than once because the visits were conducted in the Waco vicinity and it was difficult for her to arrange transportation. She disputed Mellott s characterization of her one bedroom apartment as inadequate but stated her intention to rent a two bedroom apartment if she regained custody of J.A.

J.A. s court-appointed special advocate testified that the Attorney General s child support division had no record of any child support payments being made on J.A. s behalf.

Although the record contains conflicting evidence, much of the controversy was resolved by the court s determination of whether it would choose to believe the testimony of DPRS s witnesses or that of Alexander. Apparently, the court chose to believe DPRS s witnesses. We must defer to the finder of fact in its resolution of such credibility issues so long as that resolution is not itself unreasonable. Sw. Bell Tel. Co. v. Garza, 48 Tex. Sup. Ct. J. 226, 238, 2004 WL 3019205 at *13 (Tex. Dec. 31, 2004); accord In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

Giving appropriate deference to the court s findings, we hold that the evidence is such that a factfinder 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, 25 (Tex. 2002); see also In re S.G.S., 130 S.W.3d 223, 238-39 (Tex. App. Beaumont 2004, no pet.) (failure to visit children); Wilson v. State, 116 S.W.3d 923, 928-29 (Tex. App. Dallas 2003, no pet.) (failure to participate in parenting classes or maintain contact with child); In re H.R., 87 S.W.3d 691, 697-99 (Tex. App. San Antonio 2002, no pet.) (failure to maintain employment or maintain contact with the child). Thus, the evidence is factually sufficient. Accordingly, we overrule Alexander s first issue.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 13, 2005

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