In the Interest of T.H.; Et Al., Children--Appeal from 73rd Judicial District Court of Bexar County

No. 04-97-00765-CV
IN THE INTEREST OF T.H. and A.R., Minors,
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 95-PA-01059
Honorable Michael Peden, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: November 25, 1998

AFFIRMED

The Texas Department of Protective and Regulatory Services instituted a proceeding to terminate the parent-child relationship between Isabel Rosales and her two children. After a non-jury trial, the court terminated Rosales' parental rights pursuant to section 161.001 of the Texas Family Code. In four points of error, Rosales challenges the factual sufficiency of the evidence to support the trial court's judgment. We affirm.

Factual and Procedural Background

On March 30, 1995, Rosales telephoned the Texas Department of Protective and Regulatory Services (hereinafter "the Department") requesting assistance with her children. A Department caseworker, Jacqueline Lercag, testified that Rosales claimed she could no longer care for her children, that she was feeling overwhelmed, and that she was afraid she might harm the children. Following the telephone call, the case was assigned to the Family Preservation Unit.

Through a routine check, the Department learned that Rosales' husband, Joe Rosales, was a convicted sex offender. After advising Rosales of her husband's prior convictions, the Department presented her with a safety plan recommending she not allow Mr. Rosales any contact with the children.(1) Although she acknowledged that her husband may have molested other children, Rosales believed he would not molest his own children. Thus, even after being confronted with information of her husband's prior criminal record, Rosales allowed Mr. Rosales to maintain contact with the children. The Department also obtained information that Rosales had a prior relationship with another convicted sex offender.

Based on this information, the Department removed the children from Rosales' care and placed them in foster care. Caseworker Andrea Scotese testified that while in foster care, the children were observed acting out sexually by simulating sex acts with one another. Once the Department allowed visitation, Rosales noticed that T.H. was apprehensive to be in the home. Rosales then questioned T.H. about possible sexual abuse by Mr. Rosales, to which he responded that Mr. Rosales had touched his "private parts."

In an attempt to reunify the family, the Department provided a number of support services to assist Rosales in caring for her children. Among the services provided were parenting classes, mother sexual abuse groups, and therapy sessions. Although Rosales made some attempt to improve her parenting skills, she did not successfully complete the offered programs. Cindy Mazuka, a reunification caseworker, testified that there was a history of excessive discipline by Rosales. At trial, Rosales admitted that she warned T.H. that if he continued to misbehave, she would "beat his butt until it was bloody." Additionally, Mazuka testified that during the two month period of attempted reunification, Rosales was arrested for driving while intoxicated. Mazuka testified that due to Rosales' inability to properly discipline her children and her DWI arrest during the pendency of this trial, reunification was unsuccessful.

At trial, the Department also presented evidence that Rosales refused to pay child support. In her testimony, Rosales acknowledged that she was under court order to pay $10 dollars a month in child support; however, she failed to do so. The evidence indicated that Rosales had the ability to pay based on her social security income of $484 dollars per month.

After determining that Rosales failed to understand or act upon the severity of the situation regarding the possibility of sexual abuse of her children, the Department initiated termination proceedings. Based on the evidence presented, the trial court entered an order terminating the parental rights of Rosales.

Arguments on Appeal In points of error one through three, Rosales challenges the factual sufficiency of the trial court's findings that she knowingly placed or knowingly allowed her two children to remain in conditions or surroundings which endangered her children's physical or emotional well-being, and that she engaged in conduct or knowingly placed her children with persons who engaged in conduct which endangered their physical or emotional well-being. She also challenges the finding that she failed to support the children in accordance with her ability to pay during a one year period ending within six months of the date of the filing of the petition. In point of error number four, Rosales also contests the trial court's finding that the termination is in the best interest of the children.

Standard of Review

In reviewing a factual sufficiency point, this court determines whether there is sufficient evidence to 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. See Anthony v. Mays, 777 S.W.2d 200, 204 (Tex. App.--San Antonio 1989, no writ); In re T.M.Z., 665 S.W.2d 184, 186 (Tex. App.--San Antonio 1984, no writ). The appellant must show that the evidence is insufficient to permit a rational fact finder to hold "a firm belief or conviction" about the truth of the finding. See In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980) (quoting State v. Addington, 588 S.W.2d 569 (Tex. 1979)). The court must examine all of the evidence in support of and contrary to the finding. See Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

Termination

A trial court may terminate the parent-child relationship if the factfinder determines a parent committed one or more of the acts contained within Family Code section 161.001 and that "termination is in the best interest of the child." Tex. Fam. Code Ann. 161.001 (Vernon Supp. 1998). Such determination is proper only upon a showing of clear and convincing evidence of the allegations sought to be established. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 1998).

In the present case, the Department sought termination of Rosales' parental rights pursuant to section 161.001(1)(D), (E), and (F) of the Texas Family Code.

Section 161.001 permits termination if a parent:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

(F) 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.

Tex. Fam. Code Ann. 161.001(1)(D),(E),(F) (Vernon Supp. 1998).

Under subsection (D), the environment must be the source of endangerment to the child, and parental rights may be terminated if the parent knowingly places the child or allows the child to be placed in surroundings that endanger the physical or emotional well-being of the child. See Tex. Fam. Code Ann. 161.001(1)(D) (Vernon Supp. 1998); In re S.H.A., 728 S.W.2d 73, 84 (Tex. App.--Dallas 1987, writ ref'd n.r.e.) (holding that under subsection (D) it must be environment which endangers child's well-being). Termination under subsection (E) is determined by endangerment to the child caused by the parent's conduct rather than the environment. See Tex. Fam. Code Ann. 161.001(1)(E) (Vernon Supp. 1998); In re S.H.A., 728 S.W.2d at 85 (recognizing distinction between environment and conduct). Under subsection (E), it is not necessary that the children were actually harmed by conduct, but only that they were exposed to injury from such conduct. See Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Texas Dep't of Human Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.--Dallas 1992, no writ). Subsection (F) provides termination is proper if the parent has failed to financially support their child in accordance with their ability. See Tex. Fam. Code Ann. 161.001(1)(F) (Vernon 1998). Termination cannot be based on failure to support the child unless there is also evidence of the ability to pay support. See In re Z.W.C., 856 S.W.2d 281, 283 (Tex. App.--Fort Worth 1993, no writ).

The evidence presented at trial showed that the children were placed in an environment which endangered their physical and emotional well-being. Specifically, there was evidence that Mr. Rosales, a convicted sex offender, was living in the home at the time of removal. Rosales testified that her husband was not living with her; however, based on conversations with the children, there was testimony indicating that he was living in the home. There was also evidence that even after Rosales was told of her husband's criminal record, she allowed him unsupervised access to the children. We cannot substitute our judgment for that of the trier of fact, even if there is conflicting evidence upon which a different conclusion could be found. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1986, writ ref'd n.r.e.).

The record also contains evidence that Rosales' conduct endangered the children's physical and emotional well-being. First, there was testimony that Rosales had relationships with two convicted child molesters and permitted men of unknown backgrounds to have contact with the children. Second, despite the knowledge of her husband's prior convictions for sexual abuse, Rosales allowed him to have unsupervised contact with the children. See In the Interest of L.S., 748 S.W.2d 571, 574 (Tex. App.--Amarillo 1988, no writ) (finding that knowledge of sexual abuse and placing children in environment which allowed them to be abused supports termination of parental rights). Third, the Department presented evidence that Rosales had been prescribed medication to alleviate stress; however, she refused to take it on a regular basis. Fourth, Rosales failed to administer appropriate discipline by reacting too harshly to the children. Finally, there was evidence that Rosales failed to complete the mother sexual abuse group class because she was unable to demonstrate that she understood her responsibility to protect her children from being abused. See In The Interest of R.D., 955 S.W.2d 364, 367-69 (Tex. App.--San Antonio 1997, pet. denied) (holding that failure to attend parenting classes, failure to financially support children, and failure to maintain stable home environment support finding of endangering conduct under subsection (E)).

Finally, we hold there is evidence to support the finding that Rosales failed to financially support her children. Rosales admitted that she was required to pay $10 dollars a month in child support and failed to do so despite her ability to pay. Her income was $484 dollars per month and her rent was $131 dollars a month. See id.

We find that the above-stated evidence could have produced a firm belief in the mind of the trier of fact that both the environment of the Rosales household, and the conduct of Rosales, endangered the children's physical and emotional well-being, and that she failed to support the children despite her ability to do so. Accordingly, points of error numbers one through three are overruled.

Best Interest of the Child

In her fourth point of error, Rosales argues that there was insufficient evidence to support the trial court's finding that termination is in the best interest of the children. See Tex. Fam. Code Ann. 161.001(2) (Vernon Supp. 1998). To determine whether termination is in the best interest of the child, the trier of fact should consider: (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 parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

At trial, Rosales admitted that the children need a stable home environment, but she argued that this would be best achieved by returning the children to her care or ensuring that there would be permanent contact with her. However, other than Rosales' statement that she would improve her parenting skills, there is no evidence that she has a plan for taking care of the children and guaranteeing their safety in the future. See Holley, 544 S.W.2d at 372 (stating that court should consider possibility of emotional or physical danger either now or in future when deciding if termination is in best interest of child); Edwards v. Texas Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.--El Paso 1997, no writ) (noting that stability is primary consideration with regards to child's present and future needs). Rosales also testified that in an attempt to avoid termination of her parental rights, she contacted Legal Aid for assistance with a divorce. However, in addition to still being married to Mr. Rosales at the time of trial, testimony from the Department's witnesses shows that Rosales lacks the necessary parenting skills needed to raise the children. See Holley, 544 S.W.2d at 372. The evidence indicates that despite assistance from the Department, Rosales could not improve her parenting skills. See D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 358 (Tex. App.--Austin 1993, no writ) (including parent's ability to improve parenting skills as factor to consider in determining best interest of child). For example, Rosales was not able to demonstrate to the group leader that she understood why her children were removed initially and could not verbalize what she would do to protect them when they returned home. Further, despite Rosales' testimony that she is a good mother and can provide a good home for her children, there is no evidence of any action taken towards providing her children with a safe home. We find that the evidence could have produced a firm belief in the mind of the trier of fact that if the children remain with Rosales, their safety would remain in jeopardy. Accordingly, we find the evidence factually sufficient to support the finding that the termination is in the best interest of the children. Point of error number four is overruled.

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. At trial, Rosales testified that the safety plan was not explained to her and for that reason, she refused to sign it. Rosales also claimed to have no knowledge of her husband's prior criminal activity.

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