Ian Mikowski and Toni English v. Department of Family and Protective Services--Appeal from 306th District Court of Galveston County

Opinion issued October 18, 2007

 

 

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-07-00011-CV

 

IAN MIKOWSKI AND TONI ENGLISH, Appellants

 

V.

 

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

 

On Appeal from the 306th District Court

Galveston County, Texas

Trial Court Cause No. 06CP0004

 

MEMORANDUM OPINION

Following a jury trial, the trial court terminated the parental rights of appellants, Ian Mikowski and Toni English, to their minor son, C.M. Presenting five issues each, Mikowski and English challenge the legal and factual sufficiency of the evidence to support the findings supporting the termination. In addition, Mikowski contends that he did not receive effective assistance of counsel, and English raises an evidentiary challenge.

We affirm.

Background

C.M. was born on January 3, 2006. Two days later, the Department of Family and Protective Services ("DFPS") became involved with the family after it was notified by the hospital that C.M. had tested positive for marijuana. C.M. was initially placed with English's sister, Amber Sorenson. Not long after, Mikowski and English contacted DFPS stating that they no longer wished for C.M. to be placed with Sorenson. Because the parents were unable to provide a suitable relative placement, DFPS took temporary custody of C.M. on January 23, 2007. At that time, C.M. was placed with a foster family.

DFPS ultimately sought to terminate Mikowski's and English's parental rights to C.M. The case went to trial before a jury in December 2006, when C.M. was 11 months old. The trial court instructed the jury that Mikowski's and English's parental rights could be terminated if it found, by clear and convincing evidence, that Mikowski and English had each engaged in at least one activity described in subsections (D), (E),or (O) of Family Code section 161.001(1) and if it found that terminating the parent-child relationship was in the best interest of the child. See Tex. Fam. Code Ann. 161.001(1)(D), (E), (O), 161.001(2) (Vernon Supp. 2006). Based on these instructions, the jury found that Mikowski's and English's parental rights to C.M. should be terminated.

In conformity with the jury's verdict, the trial court signed two orders of termination, one for Mikowski and one for English. The same grounds for termination are listed in each termination order. Specifically, the trial court stated in each order that it had found by clear and convincing evidence that the respective parent had committed one or more of the following acts:

6.2.1. knowingly placed or knowingly allowed [C.M.] to remain in conditions or surroundings which endanger the physical or emotional well-being of [C.M.]; (1)

 

6.2.2. engaged in conduct or knowingly placed [C.M.] with persons who engaged in conduct which endangers the physical or emotional well-being of [C.M.]; (2)

 

6.2.3. failed to comply with the provisions of a court order that specifically established the actions necessary for [Mikowski or English, respectively] to obtain the return of [C.M.] who [has] been in the permanent or temporary managing conservatorship of [DFPS] for not less than nine months as a result of [C.M.'s] removal from the parent under Chapter 262 for the abuse or neglect of [C.M.]. (3)

The termination orders also state that the trial court found, by clear and convincing evidence, that it was in C.M.'s best interest for Mikowski's and English's parental rights to be terminated.

Mikowski and English each appealed.

Mikowski's Appeal

We first determine whether Mikowski complied with Family Code section 263.405(b), which requires an appellant to file, not later than the 15th day after the date a final termination order is signed, "a statement of the point or points on which the party intends to appeal." Tex. Fam. Code Ann. 263.405(b) (Vernon Supp. 2006). The statement may be filed separately or it may be combined with a motion for new trial. Id. The legislature expressly mandates that we "may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Id. 263.405(i).

In this case, the record reflects that Mikowski failed to timely file his statement of points pursuant to section 263.405(b). The trial court signed the termination orders on December 19, 2006. Mikowski had already filed his notice of appeal on December 14, 2006. No statement of points on which Mikowski intended to appeal accompanied the notice of appeal, and Mikowski did not file a statement of points within the 15 day period following the signing of the order.

Seventeen days after the trial court signed the termination orders, on January 5, 2007, Mikowski filed a "First Amended Notice of Appeal, Statement of Points to be Appealed, Motion for New Trial, and Request for Free Record." In the amended notice, Mikowski for the first time identified points that he intended to appeal. Though Mikowski's statement was filed only two days after the 15-day deadline, the plain language of Family Code section 263.405(i) precludes this Court from considering Mikowski's appellate issues, as draconian as this may seem. See id. Consequently, we affirm the order terminating the parental-child relationship between Mikowski and C.M. See Pool v. Tex. Dep't of Family & Protective Servs., 227 S.W.3d 212, 216 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (affirming decree terminating father's parental rights as result of father's failure to comply with Family Code section 263.405(b)).

English's Appeal

English presents five issues on appeal. Specifically, in the first four issues, English challenges the legal and factual sufficiency of the trial court's findings supporting the termination of her parental rights to C.M. In her fifth issue, English challenges an evidentiary ruling of the trial court.

A. Statement of Points

As mentioned, the trial court signed the order terminating English's parental rights to C.M. on December 19, 2006. English timely filed her statement of points to be appealed on December 18, 2006, within 15 days of the signing of the termination order. See Tex. Fam. Code Ann. 263.405(b). In her timely filed statement of points, English raised the legal and factual sufficiency complaints that she now raises on appeal in her first four issues. Thus, we may consider those issues on appeal.

On January 11, 2007, 23 days after the trial court signed the termination order, English amended her statement of points to include the evidentiary issue she now raises on appeal in issue five. Because this issue was not timely included in her statement of points, we may not consider it on appeal. See id. 263.405(i).

B. Legal and Factual Sufficiency Challenges

Because English's third and fourth issues are dispositive, we address them first. In her third issue, English contends that the evidence is legally and factually insufficient to support a finding that, under Family Code section 161.001(1)(O), she "failed to comply with the provisions of a court order that specifically established the actions necessary for [English] to obtain the return of [C.M.] . . . ." See Tex. Fam. Code Ann. 161.001(1)(O). In her fourth issue, English challenges the legal and factual sufficiency of the evidence to support the finding that the termination of English's parental rights was in C.M.'s best interest. See id. 161.001(2) (Vernon Supp. 2006).

1. Burden of Proof and Standard of Review

The burden of proof at trial in parental-termination cases is by clear and convincing evidence. Tex. Fam. Code Ann. 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Section 161.001 of the Texas Family Code provides the method by which a court may involuntarily terminate the parent-child relationship. See Tex. Fam. Code. Ann. 161.001. Under this section, a court may order the termination of the parent-child relationship if the court finds, by clear and convincing evidence, that (1) one or more of the acts enumerated in section 161.001(1) was committed and (2) termination is in the best interest of the child. Id.

"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); J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review.

When determining legal sufficiency, we review 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." J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in a parental-termination case, we must consider all of the evidence, not only that which favors the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

In determining a factual-sufficiency point, the higher burden of proof in termination cases also alters the appellate standard of review. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). "[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance." Id. at 25. In considering whether evidence rises to the level of being clear and convincing, we must consider whether the evidence is sufficient to reasonably form in the mind of the factfinder a firm belief or conviction as to the truth of the allegation sought to be established. Id. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. "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 natural rights that exist between parents and their children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings should be strictly scrutinized, and the involuntary termination statutes should be strictly construed in favor of the parent. Id. at 20-21. However, "[j]ust as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right." C.H., 89 S.W.3d at 26.

2. Failure to Comply with Service Plan: Section 161.001(1)(O)

One of the grounds supporting termination of English's parental rights was Family Code subsection 161.001(1)(O). Pursuant to that subsection, the termination order reflects that trial court found, in relevant part, that English had not complied with the provisions of a court order that specifically established the actions necessary for her to obtain C.M.'s return. See Tex. Fam. Code Ann. 161.001(1)(O). We turn to the record to determine whether legally and factually sufficient evidence supports this finding.

The record reflects that the court required English to complete individual counseling and parenting classes, to submit to random drug tests, and to maintain suitable housing and employment. At trial, English admitted that she did not complete all of the requirements of the court-ordered service plan. English also testified that she was aware that such failure to comply could result in termination of her parental rights. Nonetheless, on appeal, English contends that the evidence is legally and factually insufficient to support termination because she "substantially complied with the services that the court ordered her to complete."

In support of this assertion, English does not cite, and we cannot find, any legal authority holding that a parent's substantial compliance with court-ordered services will preclude a section 161.001(1)(O) finding. See In re T.T, 228 S.W.3d 312, 319 (Tex. App.--Houston [14th Dist.] 2007, no pet.) (noting that court found no cases to support parents' substantial compliance argument). To the contrary, courts have held that evidence of substantial compliance will not defeat a section 161.001(1)(O) finding on legal and factual sufficiency grounds. See, e.g., In re T.N.F., 205 S.W.3d 625, 630-31 (Tex. App.--Waco 2006, pet. denied); In re D.L.H., No. 04-04-00876-CV, 2005 WL 2989329, at *2 (Tex. App.--San Antonio Nov.9, 2005, no pet.) (mem. op.). In any event, we disagree that English "substantially complied" with her the court-ordered service plan.

The record reflects that English failed to complete her individual counseling and parenting classes and failed to take all random drug tests as required by the court. At trial, English offered a number of excuses for her failure to complete these services.

English testified that she did not complete the random drug tests because no one had explained the process to her. Regarding her failure to complete individual therapy, English claimed that she went to her therapist's office to initiate therapy. In contrast, the therapist testified that she was not aware that English had come to her office. According to the therapist, she never received any messages from English to initiate therapy. The therapist testified that she called English to schedule therapy at the number given on the DFPS referral form. The therapist stated that she left five messages for English and that English never returned her calls.

Regarding her failure to take parenting classes, English claimed that she called the telephone number given to her but that no one answered. English testified that she did not know when the classes began or where the classes were held. English admitted that she never asked her caseworker about how to initiate the parenting classes.

English further testified that she understood that the parenting classes merged with her individual therapy. English explained that she did not complete her individual therapy because the court ordered DFPS to no longer pay for her services. English testified that she could not afford the therapy.

The record shows that the court did eventually order DFPS to discontinue paying for English's services, but also reflects that the court did so because English had failed to comply with certain provisions of the service plan up to that point. The record further shows that the court had warned English that noncompliance with the plan would result in discontinuation of payment for the services.

DFPS also offered evidence that English failed to offer proof of stable housing and employment, as required by the court. The record shows that, during the 11-month period between C.M.'s birth and the trial, English lived in five different locations. She was evicted from two of these locations and threatened with eviction from a third location. On appeal, English maintains that the evidence shows that she has suitable housing. At trial, English testified that she, Mikowski, and her brother were living in a three-bedroom trailer home, which she and Mikowski are "renting to own." English contends that no evidence was offered to show that the trailer home is not "safe and stable." DFPS points out that one of its caseworkers testified that "stability of home also means how many times you move."

With regard to employment, English testified that she had worked at two or three jobs since C.M. was born. She also testified at the December trial that she had not worked since June. English explained that she lost her job in June when she was arrested for credit card abuse and that she could not maintain employment because she was incarcerated for 40 days in August and September. One of the caseworkers assigned to C.M.'s case testified that English had never offered proof of employment as required in the court order.

Given the record, we conclude that the evidence, viewed in the light most favorable to the section 161.001(1)(O) finding, was sufficiently clear and convincing that a reasonable factfinder could have formed a firm belief or conviction that English failed to comply with the provisions of a court order that specifically established the actions necessary for her obtain the return of C.M. We further conclude that, viewed in light of the entire record, any disputed evidence could have been reconciled in favor of the section 161.001(1)(O) finding or was not so significant that the factfinder could not reasonably have formed a firm belief or conviction that English failed to comply with the provisions of a court order that specifically established the actions necessary for her obtain the return of C.M. Accordingly, we hold that the evidence was legally and factually sufficient to support the section 161.001(1)(O) finding.

We overrule English's third issue. (4)

3. Best Interest of C.M

In her fourth issue, English challenges the legal and factual sufficiency of the evidence to support the required finding that termination was in the C.M.'s best interest. See Tex. Fam. Code Ann. 161.001(2).

Some of the factors that an appellate court may consider in ascertaining the best interest of a child include the non-exhaustive list set forth in Holley v. Adams. 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include the following: (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 that 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. Id.

These factors are not exhaustive. C.H., 89 S.W.3d at 27. The absence of evidence about some of these factors does not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest. Id. "Best interest" does not require proof of any unique set of factors, nor does it limit proof to any specific factors. Holley, 544 S.W.2d at 371-72. With the foregoing legal precepts in mind, we review the legal and factual sufficiency of the evidence to support the finding in this case that termination was in C.M.'s best interest.

To support the best interest finding, DFPS cites the evidence discussed above showing that English could not maintain suitable housing and employment and has failed to take advantage of the court-ordered services offered to her. We agree that such evidence is not only probative of the section 161.001(1)(O) finding, but also of the best-interest determination. See C.H., 89 S.W.3d at 28. This evidence demonstrates English's inability to provide C.M. with a stable home and to meet his physical and emotional needs.

DPFS also presented evidence that, despite being at risk of losing her child, English engaged in criminal conduct following C.M.'s birth. In February 2006, English was charged with committing the offense of credit card abuse, a state jail felony. At that time, English was also charged with being in possession of a controlled substance, Xanax. English claimed that she had a prescription for the Xanax but one was never produced. English ultimately pleaded nolo contendere to the controlled substance offense and received a sentence of 30 days in jail.

In June 2006, English was again charged with credit card abuse. English pleaded guilty to the offense and was sentenced to five years' deferred adjudication community supervision. As part of the plea agreement, the February 2006 and an earlier 2004 charge for credit card abuse were dismissed. Related to the plea agreement, English spent 40 days in jail in August and September of 2006, affecting her ability to visit C.M., maintain employment, and participate in court-ordered services.

DFPS also presented evidence probative of English's ability to keep C.M. physically safe in the future. English admitted to smoking marijuana while pregnant with C.M.--conduct that endangered C.M. even before he was born.

The record also showed that, when C.M. was five days old, he was permitted by the family members caring for him to stay one evening with English and Mikowski at their apartment. On that evening, Mikowski and English's brother engaged in a physical altercation in which English's brother punched Mikowski in the face. The police were called to the apartment. When they arrived, the police observed Mikowski standing in a bedroom holding a loaded shotgun. Newborn C.M. was still in the apartment at the time. Mikowski was arrested with respect to the weapon and English was arrested on outstanding warrants.

The evidence further revealed that, on June 22, 2006, Mikowski was arrested for committing an act of domestic violence against English. DFPS offered the testimony of the manager of the apartment where the couple resided at that time. She testified that she heard English say "Stop" and "Stop it. Don't push me. Leave me alone." The apartment manager noted that English was crying. The manager then observed Mikowski push English. The manager called the police, who arrested Mikowski for the incident. Both Mikowski and English denied the manager's account, and the charges against Mikowski were ultimately dismissed.

Although C.M. is too young to express his desires, the evidence showed that C.M. has bonded with his foster family and that the family wishes to adopt him. The evidence indicated that C.M. is doing well in foster care and is on target developmentally. The foster mother's testimony indicated that, when medical concerns had arisen with C.M., she had promptly attended to them. For example, C.M. will require surgery on his tongue for which the foster family has obtained medical advice.

On appeal, English relies heavily on evidence presented at trial discrediting C.M.'s foster parents as a suitable placement. The evidence showed that C.M.'s foster family had an earlier "CPS referral" in which it was alleged that the parents allowed their children to play unattended in the street. The report stated that one of the foster parents was observed cursing at a driver and that the children were seen playing in the street as late as 1:00 a.m. The foster mother testified that the information in the report was false.

Evidence was also presented that the foster parents both had, at some point, used marijuana and that the foster father drank beer. English contends that this evidence weighs against the best interest finding under a number of the Holleyfactors.

In addition to the evidence relied on by English relating to the foster parents, the record also shows that the foster parents have cared for 10 foster children since they became licensed for foster care in 2003. The foster parents adopted one of the foster children in 2005, a three-year-old girl. The foster mother testified that her little girl and C.M. love each other. The foster mother also testified that she and her husband annually attend child care, parenting, and safety classes to maintain their foster parent status.

Undeniably, some evidence exists in the record that weighs in favor of English under the Holley factors. Overall, caseworkers who observed English with C.M. during visitation testified that she acted appropriately and showed motherly affection for C.M. Evidence was presented that English had purchased baby items to care for C.M. The one home visit to English and Mikowski's apartment revealed that the apartment appeared to be an adequate home for C.M.

Regarding her plans for the future, English testified that she planned to attend college, though there is conflicting evidence whether English has obtained her general education degree. English also testified that Mikowski is in the process of joining the military and would assist in supporting C.M.

In sum, the record contains evidence showing that English expresses a desire to be a good parent to C.M. However, evidence cannot be read in isolation; it must be read in the context of the entire record. The record reveals that, in the past, when English has taken one step forward, she ultimately takes two back by committing a criminal act, failing to follow through on services, failing to keep a job, moving from home to home, or being with Mikowski when he exhibits violent tendencies. Given the record, the factfinder in this case could have reasonably inferred that English would continue such pattern of conduct. Such an inference relates directly to English's ability to provide a stable and suitable home for C.M. and indicates that C.M.'s emotional and physical well-being may be endangered in the future if English's parental rights are not terminated.

We conclude that the evidence, viewed in the light most favorable to the best-interest finding, was sufficiently clear and convincing that a reasonable fact finder could have formed a firm belief or conviction that termination of the parent-child relationship between English and C.M. was in C.M.'s best interest. We further conclude that, viewed in light of the entire record, any disputed evidence could have been reconciled in favor of the finding that termination of the parent-child relationship between appellant and C.M. was in C.M.'s best interest or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in C.M.'s best interest. Thus, we hold that the evidence was legally and factually sufficient to support such finding.

We overrule English's fourth issue.

Conclusion

We affirm the orders of the trial court terminating the parent-child relationship between Mikowski and C.M. and English and C.M.

 

Laura Carter Higley

Justice

 

Panel consists of Justices Taft, Hanks, and Higley.

1. Tex. Fam. Code Ann. 161.001(1)(D) (Vernon Supp. 2006).

2. Id. 161.001(1)(E).

3. Id. 161.001(1)(O).

4. Because there is sufficient evidence of endangerment, we need not address English's first and second issues challenging the sufficiency of the evidence to support findings under subsections 161.001(1)(D),(E).