In the Interest of A.A.M., E.M.M., K.L., and A.L., Jr.--Appeal from 323rd District Court of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00078-CV

In the Interest of

A.A.M., E.M.M., K.L., and A.L., Jr.,

From the 323rd District Court

Tarrant County, Texas

Trial Court No. 323-75392J-03

MEMORANDUM Opinion

I. Background

  The Texas Department of Family and Protective Services (the Department) removed the four children of Melinda M. after she went through drug rehabilitation but then relapsed in January 2004. The Department, in conjunction with the Mexican Consulate, had DIF (the Mexican equivalent of Child Protective Services) do a home study on the alleged paternal grandparents of two of the children. The home study recommended placement of all four children with the alleged grandparents, Luis Leon Ibarra and Maria Vargas Urtado, who resided in Maurelia, Mexico.

The four children (and their ages at the time of trial) are A.A.M., age 8; E.M.M., age 5; K.L., age 2 ; and A.L., age 1 . Enrique M. was the alleged father of A.A.M. and E.M.M. Alejandro L. was the alleged father of K.L. and A.L.

In October 2004, Appellees Robert and Angela Kline, the foster parents of all four children, intervened. The Klines sought termination of Melinda s parental rights to all four children, along with termination of the parental rights of their respective alleged fathers. The Klines requested that they be appointed temporary managing conservators and indicated their intent to adopt the children.

The Department opposed termination, instead moving to modify, and requested that it and the alleged grandparents be appointed joint managing conservators. In a December 2004 bench trial, the trial court terminated the parental rights of Melinda and the two alleged fathers,[1] and the Klines and the Department were appointed joint managing conservators. Melinda appeals the termination, asserting in two issues only that the evidence was legally and factually insufficient that termination was in the best interests of the children. She claims that the two older children were bonded closely to her and that placement with the alleged grandparents, not termination, was in their best interests. Neither alleged father appeals. We will affirm.

II. Standards of Review

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App. Waco 1998, no pet.). This standard is defined as that measure or degree of proof which 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. Id.

In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the movant must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001 (termed a predicate violation); and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2005); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App. Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766.

Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).

In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.

If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.

J.F.C.,96 S.W.3d at 266.

In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he 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. A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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. A court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.

Id.at 266-67 (footnotes and citations omitted). We view the evidence in a neutral light when reviewing for factual sufficiency.

III. Best Interest of the Child

In addition to a predicate violation, a movant must establish by clear and convincing evidence that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001. Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include:

(1) the desires of the child;

(2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future;

(4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to promote the best interest of the child;

(6) the plans for the child by these individuals or by the agency seeking custody;

(7) the stability of the home or proposed placement;

(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent.

Holley,544 S.W.2d at 371-72. These factors are not exhaustive, and some of the listed factors may be inapplicable to some cases, while other factors not listed may also be considered when appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. Id. Often, the best interest of the child is infused with the statutory offensive behavior. In re W.E.C., 110 S.W.3d 231, 240 (Tex. App. Fort Worth 2003, no pet.). While there are instances where the offending behavior will demand termination of parental rights, there are cases where the best interest determination must have a firm basis in facts standing apart from the offending behavior. Id.

The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree, 907 S.W.2d at 86 (citing D.O. v. Tex. Dep t of Human Servs., 851 S.W.2d 351, 358 (Tex. App. Austin 1993, no writ)). But there is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. Swate, 72 S.W.3d at 767. On the other hand, the goal of establishing a stable permanent home for a child is a compelling state interest. Dupree, 907 S.W.2d at 87.

IV. Analysis

We will evaluate the sufficiency of the evidence in the context of the Holley factors.

(1) Desires of the children

The Klines contend that all of the children were too young to express any meaningful desires that merit being credited. Generally, we agree. K.L. and A.L., the two youngest children, plainly were too young. Both had been with the Klines for over nine months and had bonded with them. A.A.M. and E.M.M., the two older children, were very attached to their mother, despite her drug addiction and neglect of them. A.A.M. and E.M.M. had been with the Klines for sixteen months. Their counselor unsurprisingly testified that they would both be seriously affected if told they would never see their mother again and that they would regress for some time. The Department caseworker said that they loved their mother and that termination would not be in their best interests. But if the children went to Mexico to live with Luis and Maria, to whom they are not blood related, similar separation issues would occur.

The children s attorney ad litem agreed that the older children were very attached to their mother, stating that A.A.M. had recently told him that she wanted to live with family in Mexico, while E.M.M. had told him that she wanted to stay with the Klines. He felt that the two younger children would probably prefer to stay with what they were familiar the Klines. The attorney ad litem ultimately supported termination and adoption by the Klines.

(2) Emotional and physical needs of the child now and in the future

Based on the parties arguments, this factor is paramount in this case.

Melinda and Alejandro testified that Alejandro was the father of K.L. and A.L., and Luis and Maria testified that they were Alejandro s parents. But in its findings, the trial court found that Alejandro failed to timely file an admission of paternity and to register with the paternity registry under chapter 160 of the Family Code. The Klines brief is prefaced with the argument that, because the trial court s findings did not establish Alejandro as the father of K.L. and A.L., there was thus no showing that Luis and Maria were their paternal grandparents, which serves as a conclusive determinant against placement with them in Mexico. We will, however, include this issue in our best-interest analysis.

Several witnesses, including their caseworker, Dr. Balla (their counselor), and Angela, testified about A.A.M. s and E.M.M. s attachment to Melinda, and Dr. Balla said they both initially would regress if they were told they would not see their mother again. Dr. Balla said that A.A.M. also wanted to stay with her maternal grandmother Barbara, and going to Mexico would separate her from her mother and grandmother.

A.A.M. and E.M.M. were placed with the Klines in July 2003. Their foster parent agreement was originally for one school-aged child, and the Klines were initially overwhelmed with taking all four children. When the caseworker told the Klines in January 2004 that the Department plan was to place all four children in the same foster home and that A.A.M. and E.M.M. would be moved if the Klines did not take in K.L. and A.L., the Klines determined that they could take all four children and took in K.L. and A.L. in February 2004.

Luis and Maria did not meet the children until eight days before the December 2004 trial, though they had known since 2003 that the children were in foster care, nor had they sent the children letters or photographs or made an effort to contact them. While Alejandro had talked to Luis and Maria about taking the children, Luis and Maria had made no effort to contact the children through the Department. It was the Department, through DIF, that initiated contact with them to inquire about the children s possible placement with them in Mexico. Luis, who was age 52, indicated that he was interested in taking the children because two of them (K.L. and A.L.) were his blood. While he said the other two would have the same worth, his focus was on the perceived blood link, not on the fact that all four children needed a good home. Maria likewise said that she wanted the four children placed with them in Mexico because they are family and that she and Luis were willing to take care of them. Luis had health insurance that he said would cover all four children, and he had investigated a nearby bilingual school. He intended to work with DIF to obtain counseling for the children.

The Department paid for Luis s and Maria s trip to Fort Worth to meet the children, and they stayed at the home of a Mexican Consulate official. Luis and Maria do not speak English, and A.A.M. and E.M.M. do not speak Spanish, though they know a few words. Thus, a language barrier existed between Luis and Maria and the two older children, who were not their blood relatives. In the eight days before trial, Luis and Maria visited with the children continuously.

Luis testified that his son Alejandro, allegedly to protect a brother, had shot two people near his house in 1994, killing one, and that a monument to the dead victim still stood near his home. Maria was tried as an accessory to these shootings and was found innocent. After the shooting, Alejandro fled Mexico to Texas illegally and essentially has been living as a fugitive ever since. Melinda had told the Department caseworker that Alejandro had fled to Texas to avoid a murder prosecution, and whenever he returned to Mexico, he only went out at night to avoid the authorities. In the home-study process, Luis and Maria did not tell DIF about the criminal history because of the passage of time and Maria s acquittal.

Alejandro had last lived with his parents in Mexico in September 2003 for six months. Luis and Maria said that they would obey any court order on the children having no contact with Alejandro or Melinda. If the children were placed in Mexico with Luis and Maria, DIF would supervise the placement and would assist in enforcement, but a Mexican diplomat said that compliance with a Texas court order prohibiting contact with Melinda or Alejandro would ultimately depend on the alleged grandparents cooperation; if they allowed either to see the children, the authorities would have no way of knowing.[2]

Both Luis and Maria said it was important to protect the children from Melinda and Alejandro, and Maria opined that neither should have visitation with the children. Thus, in response to Melinda s argument that A.A.M. and E.M.M. will have separation issues because they are so bonded to her, the Klines point out that if the children were placed with Luis and Maria in Mexico with no parental visitation, the children would still have separation issues. Dr. Balla, A.A.M. s and E.M.M. s counselor, said that inconsistent contact with a parent can be worse than permanent separation. Dr. Balla also was concerned that, if placed with Luis and Maria, A.A.M. and E.M.M, who weren t blood related to them, could experience a sense of insecurity and jealousy.

Further complicating the Department s desired placement with the alleged grandparents are (1) the lack of establishment of Alejandro s paternity of K.L. and A.L. in the trial court s findings; (2) the trial court s termination of Alejandro s alleged parental rights to K.L. and A.L.; and (3) Alejandro s failure to appeal these adverse findings. As a result of the trial court s findings as to Alejandro, Maria and Luis, who indisputably are not the blood grandparents of A.A.M. and E.M.M., now are not the legal paternal grandparents of K.L. and A.L.

The Klines highlighted several deficiencies in the DIF home study and DIF s work with Luis and Maria. DIF had not told them that A.A.M. and E.M.M. had emotional problems. The home study failed to mention that Luis s and Maria s son Miguel lived with them and incorrectly listed their son Juan as their youngest child. Nancy DeWees, an attorney who was a licensed professional counselor who was formerly the Program Administrator for Tarrant County Child Protective Services and Regional Placement Administrator for the Department, said that these deficiencies were a cause for concern. DeWees also expressed concern about the failure of Luis and Maria to reveal to DIF the criminal history surrounding Alejandro and Maria. And while the Department caseworker volunteered to fly to Mexico on her own time, while on vacation, to monitor the children, this intended reassurance could have left the trial court more unsure not less about DIF s reliability.

Melinda notes that preserving the children s Hispanic culture is important; the Klines agree. But all four children were born in Tarrant County, are U.S. citizens, and speak English. None of the children had ever lived in Mexico or in an environment where Spanish was the primary language. Dr. Balla thought that the children would suffer culture shock if they went to live in Mexico. By culture, the children were Hispanic-American, not Hispanic-Mexican. Also, the Klines were interested in a multi-cultural ministry involving Hispanics. They lived in a diverse neighborhood with Hispanics, and the school that A.A.M. and E.M.M. was attending was an Hispanic mix. The children s diet with Melinda was not Mexican-American, but American: macaroni and cheese, hamburgers, and chicken fried steak.

A.A.M. and E.M.M. were very close to their maternal grandmother, Barbara, who is Hispanic and lived in Fort Worth. A.A.M. had lived with Barbara from her birth until she was age six. The Klines were open to continued contact with Luis and Maria, as well as with Barbara, who testified that she understood that the Klines would allow her visitation.

Dr. Balla said that A.A.M. had a depressive disorder that would only get worse if she were moved to Mexico. In addition to the culture shock, she said that research indicates that older children are affected emotionally by international adoptions and that the effect would be compounded by the language barrier. Dr. Balla was concerned about moving K.L. and A.L. again because, with younger children, frequent moves can result in attachment problems, and A.L. was already on her third placement. She thought that all four children should be kept together because their sibling assessment showed that they were comfortable together and loved each other. Dr. Balla was also concerned with the availability of therapy in Mexico and the language barrier s effect on therapy. In conclusion, Dr. Balla had three main concerns with placement with the alleged grandparents in Mexico: (1) the children would effectively be moving in with complete strangers; (2) culture shock; and (3) the language barrier, especially for the two older children.

The Department caseworker opposed termination and advocated placing the children with the alleged grandparents, in part because relative placement is a Department priority, but DeWees said that relative placement is not a hard-and-fast rule and that the determining factor is the children s best interests. DeWees was concerned with the Department s plan to place all four children with persons whom the children had met only very recently, especially with two children not being their blood relatives.

(3) Emotional and physical danger to the children now and in the future

Notwithstanding the assurances of Luis and Maria to the contrary, if they were given custody of the children in Mexico and they were ordered to not allow Melinda and Alejandro contact with the children, the evidence showed that they were more likely than the Klines to allow such improper contact, which could go undetected by the Department. Based on Luis s and Maria s nondisclosure to DIF of the murder charges against Alejandro and his mother, the trial court may have concluded that they might decide to allow unauthorized visitations if they determined that DIF and the court did not need to know.

The Mexican Consulate s representative testified that the children would live in a safe and wealthy area, but this was contrasted with the evidence of Alejandro s alleged self-defense shooting of two people (killing one of them) near his parents home.

(4) Parental abilities of the individuals seeking custody

Both parties agree on appeal that, as between the Klines and the alleged grandparents, their parenting abilities are relatively equal, and no evidence called into question their respective parenting abilities.

(5) Programs available to assist these individuals to promote the best interests of the children

There was ambiguous testimony that did not confirm the actual placement availability of a bilingual school and bilingual counselors for A.A.M. and E.M.M. in Mexico. And while DIF would supervise the children s placement in Mexico, evidence suggested potential reliability problems with DIF. For example, the DIF home study was not thoroughly completed (such as omitting one of their children who still lived in the home), and DIF had not told Luis or Maria that A.A.M. and E.M.M. had emotional problems. The Mexican diplomat testified that he although would act as a liaison between the Department and DIF, compliance with any court orders would ultimately depend on Luis and Maria.

(6) Plans for the children by these individuals or by the agency seeking custody

The Klines planned to adopt all four children. The Department s plan was to place all four with the alleged paternal grandparents of K.L. and A.L.

(7) Stability of the home or proposed placement

Luis and Maria had lived in the same home for 32 years. Luis was a retired federal government employee. Maria had never worked outside the home. Angela Kline worked full time as a social worker, and Robert Kline worked part time as a painter and was a fulltime seminary student with scholarships. Collectively, the Klines earned about $45,000 a year and received $2,400 a month in reimbursements as foster parents. Robert had a background in accounting and possibly would give up seminary and return to work full time as a paint contractor or accountant. If they adopted the children, he would probably reduce his seminary hours and work more.

(8) Acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one

Melinda did not dispute that she had engaged in the grounds alleged in support of the Klines termination petition, nor did she dispute that she was incapable of parenting the children.

(9) Any excuse for the acts or omissions of the parent

No evidence on this factor was presented to the trial court.

The trial court had to decide what was best for the children: terminate Melinda s rights and permanently place the children with the Klines, who want to adopt them, or order an

experimental placement with new-found relatives in a foreign country with reliability questions. Cf. In re D.R.L.M., 84 S.W.3d 281, 301-07 (Tex. App. Fort Worth 2002, pet. denied) (trial court did not err in placing child with foster parents instead of with out-of-state couple who had adopted child s half-sister, but with whom child had no prior relationship).

On the trial court s findings that termination of Melinda s parent-child relationships with her four children would be in their best interests, considering all the evidence in relation to the Holley factors in the light most favorable to the trial court s findings, we hold that a reasonable trier of fact could have formed a firm belief or conviction that termination was in the children s best interests. J.F.C., 96 S.W.3d at 266. We overrule Melinda s no-evidence complaint. And viewing all the evidence in a neutral light in relation to the Holley factors, we hold that the trial court could have reasonably formed a firm belief or conviction that termination of Melinda s parent-child relationships with her four children was in their best interests. C.H., 89 S.W.3d at 25. Accordingly, the evidence is factually sufficient on the best-interest findings. We overrule Melinda s second issue.

V. Conclusion

Having overruled Melinda s two issues, we affirm the trial court s order of termination.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the result without a separate opinion)

Affirmed

Opinion delivered and filed November 23, 2005

[CV06]

[1] Neither alleged father timely filed admissions of paternity nor registered with the paternity registry.

[2] Melinda s argument that her offending behavior (drug use) would not impact the children s lives again if they were in Mexico with the grandparents is thus at least questionable.