In the Interest of Leticia Trevino, Nicole Trevino and Mark Anthony Trevino, Children--Appeal from 216th Judicial District Court of Kendall County

No. 04-97-00937-CV

In the Interest of L.T., N.T., and M.T.
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 94-70
Honorable V. Murray Jordan, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 16, 1998

AFFIRMED

Grace Trevino appeals the trial court's judgment terminating her parental rights to three of her children. In three points of error, Trevino challenges the legal and factual sufficiency of the evidence supporting the judgment. Because we have determined the evidence is sufficient to support the termination, we affirm the judgment.

Factual and Procedural Background

Ricky and Grace Trevino have six children. Two of the children are over the age of eighteen and are not the subject of these proceedings. Another child was born after these proceedings began, and is, likewise, not the subject of this case. This case involves L.T., N.T., and M.T., who were removed from their parents' home on April 10, 1994. The children were removed when L.T. reported that her father had been sexually abusing her, on an almost weekly basis, over the course of two years.

According to L.T., the abuse included penile penetration, as well as fondling. The medical evidence supports L.T.'s allegations. N.T. and M.T. were aware of L.T.'s abuse. N.T. and M.T. also reported much violence in their home. Both children had severe emotional problems when they were removed from their home. Their conditions escalated prior to and after visits with their mother. Following L.T.'s outcry and removal from the home, Ricky Trevino was arrested for aggravated sexual abuse/indecency with a child. He pled guilty and was placed on deferred adjudication probation for ten years. However, up to and during the time of trial, Ricky Trevino continued to deny the extent of the abuse, claiming he had only "touched" L.T. and that there had been no penile penetration. He blames his behavior on his physical illness and on the fact that he was taking Prozac when the abuse occurred.

After Ricky Trevino was arrested, Grace Trevino filed for divorce. However, after a short separation, the couple continues to live together, and have since had another child. Grace Trevino also denies the extent of the abuse at issue and blames it on Ricky's illness and medication.

After three years of counseling and investigation, the Texas Department of Protective and Regulatory Services (TDPRS), believing it was in the best interest of the children, filed a petition for the termination of Ricky's and Grace's parental rights. Trial was to the bench. The court determined that both Ricky and Grace knowingly placed or allowed L.T., N.T., and M.T. to remain in conditions or surroundings which endangered their physical or emotional well-being. The court further found that Ricky and Grace had knowingly placed the children with persons who engaged in conduct which endangered the physical and emotional well-being of the children. And finally, the court concluded that the termination of Ricky's and Grace's parental rights was in the best interest of the children. Only Grace has appealed the trial court's judgment.

Arguments and Authorities

A. Standard of Review

The termination of parental rights is authorized if the termination is in the best interest of the child and the evidence establishes one of the statutory grounds for termination. See Tex. Fam.Code Ann. 161.001(1) (Vernon 1996). The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Accordingly, due process requires that the child's best interest, as well as the statutory ground or grounds for termination, be proved by clear and convincing evidence. TEX. FAM.CODE ANN. 161.001 (Vernon 1996); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980).

Because the evidence in a termination case is evaluated by a clear and convincing standard, a parent challenging the factual sufficiency of the evidence must demonstrate that the evidence is insufficient to permit a rational fact finder to hold "a firm belief or conviction" as to the truth of the findings. Tex. Fam.Code Ann. 101.007 (Vernon 1996); In the Interest of R.D., 955 S.W.2d 364, 367 (Tex. App.--San Antonio 1997, writ denied). On the other hand, legal sufficiency or no evidence complaints are reviewed under the same standard employed in other types of cases. Therefore, a parent challenging the legal sufficiency of the evidence must establish that there is no more than a scintilla of evidence supporting the finding. In the Interest of R.D., 955 S.W.2d at 367; Dupree v. Texas Dep't of Protective and Regulatory Services, 907 S.W.2d 81, 83 (Tex. App.--Dallas 1995, no writ).

B. Grace's Knowledge of the Abuse

In the present case, the TDPRS relied on subsections D and E of section 161.001(1) to support its petition for termination. Accordingly, the Department had the burden of proving that (1) Grace either knowingly placed or knowingly allowed L.T., N.T., and M.T. to be placed in conditions or surroundings which endangered their physical and emotional well-being, or that she engaged in conduct or knowingly placed L.T., N.T., and M.T. with persons who engaged in conduct which endangered their physical and emotional well-being, and that (2) the termination was in the best interest of the children. See Tex. Fam. Code Ann. 161.001(1)(D),(E) (Vernon 1996). In her first two points of error, Grace contends that the evidence is both legally and factually insufficient to support the trial court's section D and E findings.

The endangering parental conduct described in the statute does not have to be directed at the children specifically, nor does it have to have caused an actual injury to the child. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Rather, the statute is satisfied by showing that parental conduct simply jeopardized the child's physical or emotional well-being. Texas Dep't of Human Serv. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.--Dallas 1992, no writ) (emphasis added). The evidence in this case conclusively established that L.T. was sexually abused by her father, that N.T. and M.T. were aware of the abuse, and that all three children suffered severe emotional trauma as a result of the abusive situation in their home. Therefore, in raising her first two points of error, Grace does not argue with the fact that Ricky's abuse of L.T. endangered the well-being of all of the children and made the Trevino home a surrounding which endangered their well-being. Instead, Grace's main point of contention is that she was not aware of the abusive situation until the children were removed from her home. Accordingly, Grace argues that, because she did not know the abuse was occurring, she could not have knowingly endangered her children.

The evidence regarding when Grace became aware of the abuse is contradictory. First, the record indicates that L.T. has consistently maintained she told her mother about the abuse at least a year before she was removed from the home. She has relayed the same confrontation with her mother to Wendy Danford, a Department investigator; to Dr. Parra, her examining pediatrician; and to Dr. Milam, her psychologist. Specifically, L.T. claims that she told her older sister about the abuse, and, together, they told their mother. L.T. claims that her mother then "yelled" at her father, but that she did not "make him stop." Her mother never discussed the abuse with L.T. again.

The older sister denied this incident at trial; however, she had previously told the Child Protective Services investigator that she had "told her mom about the problem" and "felt like it stopped."

At trial, Ricky Trevino testified that Grace was not aware that the abuse was taking place and she never confronted him about it. However, when he confessed to the police after his arrest, he specifically stated that Grace had confronted him regarding the abuse about two years before the removal. During this confrontation, Ricky said that Grace threatened to leave him and call the police. The confession was admitted into evidence. However, when he was asked about his confession during trial, Ricky denied the confrontation in a rather convoluted fashion, saying that, in the confession, he meant that the abuse occurred two years ago, not that his wife confronted him two years ago. Dr. Baxter, a clinical social worker, testified that Ricky told him during a therapy session that Grace had known about the abuse before the children were removed.

Grace testified that she was unaware of the abuse until the day the children were removed. However, Grace testified that she noticed a change in L.T.'s behavior and suspected that "something" was happening to her. She also found a pubic hair in L.T.'s clothing, and suspected that she was having sex at school. Grace claims that she eventually asked L.T. if she was having sex, and L.T. started to cry. Grace felt bad for having made L.T. cry and did not ask anymore questions. Grace ultimately testified that she probably should have known, but was afraid to know the answer. She then stated that L.T. "might have told" her about the abuse, but that she misunderstood what L.T. was saying. Grace has consistently denied the extent of the abuse and maintains that someone put L.T. up to making these allegations or that L.T. is making them up.

The evidence also revealed that the abuse occurred on an almost weekly basis in a two-bedroom trailer home. The older sister testified that she could easily hear things throughout the house. M.T. told his treating physician that he and N.T. saw what their father was doing to L.T. M.T. also told his foster mother that he could hear, through the walls, his father "hurting" L.T. at night. It is not unreasonable to believe that Grace also heard the incidents.

While the proof must weigh heavier than merely the greater weight of the credible evidence in termination cases, there is no requirement that the evidence be unequivocal or undisputed. In the Interest of A.C., 758 S.W.2d 390, 393 (Tex. App.--Fort Worth 1988, no writ) (citing State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). In this case, the consistent statements by L.T., the prior statement by the older sister, the original confession by Ricky, Ricky's feeble attempts to deny his statements in the confession, Grace's equivocal statements, and the circumstantial evidence are all sufficient to cause a rational fact finder to form a "firm belief or conviction" that Grace knew of the abuse before the children were removed from her home. Accordingly, the evidence is sufficient to support findings that Grace knowingly placed her children in surroundings which endangered their well-being and that she knowingly placed her children with persons who engaged in conduct which endangered their well-being. See In the Matter of B.R., 822 S.W.2d 103, 107 (Tex. App.--Tyler 1991, writ denied); Lakes v. Texas Dept. of Human Services, 791 S.W.2d 214, 216 (Tex. App.--Texarkana 1990, no writ); In the Interest of L.R.M., 763 S.W.2d 64, 68 (Tex. App.--Fort Worth 1989, no writ); In Interest of A.C., 758 S.W.2d 390, 393. Grace's first and second points of error are overruled.

B. Best Interest of the Children

In her third point of error, Grace contends that the evidence is both legally and factually insufficient to support the trial court's finding that the termination of her parental rights is in L.T.'s, N.T.'s, and M.T.'s best interest. In determining the best interest of the children, the court may consider the desires of the children, the current and future emotional and physical needs of the children, and the current and future emotional and physical dangers the children may confront. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The court may also consider the parents' parental abilities, the stability of the home, the parents' plan for the children, acts or omissions by the parents, and any excuses for those acts or omissions. Id.

In this case, the record is replete with evidence that termination of Grace's parental rights is in the best interest of the children. None of the children wants to return to Grace's home. N.T. and M.T. live with a foster family that wants to keep them until they are eighteen, and N.T. and M.T. both want to stay with the foster family. L.T. wants to be adopted. N.T. and L.T. have changed their names. Only N.T. wants to even visit her mother.

The expert testimony reveals that all the children have severe emotional problems and will need continued therapy and treatment. It is doubtful that they will get this treatment if they are returned to their mother. A significant majority of the expert testimony indicated that the children would be harmed if they were returned to their mother.

Grace has consistently refused to believe the extent of the abuse. She blames the abuse that did happen on the fact that Ricky was physically ill and taking Prozac at the time of the abuse. She has indicated that she believes L.T. is fabricating or exaggerating her allegations. She further dismisses these proceedings by saying that they are a conspiracy against her family. She has remained supportive of Ricky throughout these proceedings. Although Grace filed for divorce, she continued to live with Ricky and she has had another child with him. She testified at trial that she wanted to live with Ricky, that she loved him, and that she did not understand why she could not live with Ricky if she got her children back.

After the removal, Grace continued to make choices indicating that she placed herself and her relationship with Ricky above the interest of the children. She did not follow visitation rules and repeatedly violated court orders and restraining orders. Dr. Milam, a psychologist who evaluated Grace, Ricky, and the children, testified that Grace had a dependent personality disorder and is incapable of protecting the children from Ricky.

Accordingly, the record reflects that the trial court's best interest finding is supported by more than sufficient evidence. Grace's third point of error is overruled.

The judgment of the trial court is affirmed.

KAREN ANGELINI

JUSTICE

DO NOT PUBLISH

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