In the Interest of D.L.H., A Minor Child--Appeal from 218th Judicial District Court of Karnes County

MEMORANDUM OPINION

No. 04-04-00876-CV

In the Interest of D.L.H., a Child

From the 218th Judicial District Court, Karnes County, Texas

Trial Court No. 03-04-00066-CVK

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: November 9, 2005

AFFIRMED

Mary Lilly Ortiz and Larry Hopkins appeal the judgment terminating their parent-child relationships with their daughter, D.L.H. We hold the evidence is legally and factually sufficient to support the trial court s findings regarding Ortiz s and Hopkins s failure to comply with the court s order setting forth the conditions for D.L.H. s return and that termination is in her best interest and therefore affirm the trial court s judgment.

Applicable Law and Standard of Review

To prevail in a termination suit, the Texas Department of Family and Protective Services must prove by clear and convincing evidence that termination is in the child s best interest and at least one of the grounds for termination enumerated in section 161.001(1) of the Texas Family Code. See Tex. Fam. Code Ann. 161.001 (Vernon 2002); In re R.D., 955 S.W.2d 364, 367 (Tex. App. San Antonio 1997, pet. denied). Among the grounds enumerated in section 161.001(1) is the fail[ure] 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 had been in the permanent or temporary managing conservatorship of the [Department] 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. Tex. Fam. Code Ann. 161.001 (1)(O) (Vernon 2002).

Because the clear and convincing standard applies in the trial court, the legal and factual sufficiency of the evidence to support the trial court s findings is evaluated under a single test: whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). However, the scope of review differs. In a legal sufficiency review, we must disregard any evidence the jury reasonably could have disbelieved. See J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, on the other hand, we may weigh the disputed evidence to determine if it is so significant that a fact finder could not reasonably have formed a firm belief of or conviction on the challenged finding. Id.

Factual and Procedural Background

After the Department received a referral concerning a bacterial infection on D.L.H. s scalp believed by the treating doctor to have been caused by unsanitary conditions in Hopkins s home, where D.L.H. was living at the time, and a subsequent referral that D.L.H. had broken her wrist allegedly because of unsatisfactory supervision, the Department removed D.L.H. from her home in April 2003 and filed this termination suit. On May 19, 2003, after an adversary hearing, the trial court signed a temporary order setting forth the conditions for D.L.H. s return and warning Ortiz and Hopkins that each of the actions required of them was necessary to obtain the return of [D.L.H.], and [that their] failure to fully comply with the court s order may result in the restriction or termination of [their] parental rights. Among the requirements was compliance with the Department s service plans. After a trial on the merits in September 2004, the trial court found that Hopkins and Ortiz violated section 161.001(1) in several respects, including section 161.001(1)(O), which provides for termination if a parent fails to comply with a court order to ensure the return of the child. See Tex. Fam. Code Ann. 161.001(1)(O) (Vernon 2002).

Ground for Termination

Ortiz argues the evidence is legally and factually insufficient to support the trial court s findings on the grounds for termination. Hopkins argues it is factually insufficient. We limit our discussion to the sufficiency of the evidence to support the trial court s findings that termination was warranted because both Ortiz and Hopkins failed to comply with the court s order to ensure D.L.H. s return. //

Ortiz and Hopkins were ordered to visit D.L.H. weekly. However, a Department caseworker, Angie Avila, testified Ortiz visited D.L.H only sixty-two and Hopkins only fifty-two times in a seventy-two week period. According to D.L.H. s therapist, Elizabeth Milbo, if neither parent [showed up] for the visit, [D.L.H.] would be very angry and upset and suffer[] so much each week. Milbo was so concerned that she spoke to Ortiz and Hopkins about the impact it ha[d] on [D.L.H.] when they failed to show. But even after this conversation, Ortiz and Hopkins continued to miss visits. Milbo s testimony was corroborated by D.L.H. s foster mother, Yolanda Garza, who testified the missed visits upset D.L.H. greatly. Indeed, Ortiz acknowledged that she did not visit D.L.H. every opportunity she had, offering several excuses for her absences, including transportation issues, incarceration for traffic violations, and a tooth ache. However, these excuses only accounted for approximately half of the missed visits. The rest remained unexplained. Hopkins also acknowledged he did not visit D.L.H. every opportunity he had, but relied upon job constraints as his excuse. However, his probation officer testified that Hopkins was not working for a three-month period. And when the Department s attorney asked Hopkins how, [i]f [he]can t even manage to see her for an hour, how can [he] take the time to care for her, he responded [g]ood question.

Ortiz and Hopkins were also ordered to attend weekly counseling sessions to address the issues of parenting, relationships, domestic violence, anger, substance abuse, and any other concerns identified by the service provider. But it is undisputed Ortiz s attendance was sporadic; with one counselor, Patricia West, Ortiz attended only seven weeks out of twelve. Two of Ortiz s other counselors testified that Ortiz s infrequent attendance caused them to conclude she was not really invested in getting D.L.H. back. Hopkins attended even fewer sessions than Ortiz eight sessions in sixty-nine weeks. Ortiz and Hopkins acknowledged their lack of attendance and again relied upon the same excuses they had given in response to the question why they could not visit D.L.H. every week.

In the face of this undisputed evidence, Ortiz argues implicitly and Hopkins argues expressly they substantially complied with the court s order by, in Ortiz s case, complet[ing] the anger management course and domestic violence classes without the [D]epartment s help and at her own expense and, in Hopkins s case, by completing a drug assessment, drug counseling, a psychological evaluation, a domestic violence program, and an anger management program. However, neither argument negates the undisputed facts set forth above. More importantly, neither party has provided, and we have not found, any legal authority for the premise of their arguments that substantial compliance renders undisputed evidence of a failure to comply somehow insufficient to support a trial court s finding. We therefore hold the evidence is legally and factually sufficient to support the trial court s finding that Ortiz and Hopkins failed to comply with the court s order.

Best Interest

Ortiz and Hopkins also argue the evidence is insufficient to support the trial court s best interest finding. We again disagree.

[P]roof of acts or omissions under section 161.001(1) does not relieve the petitioner from proving the best interest of the child ; but the same evidence may be probative of both issues. In re C.H., 89 S.W.3d at 28. Accordingly, in reviewing the trial court s best interest finding, we may consider the following non-exhaustive list of factors:

(1)the child s desires;

(2)the child s current and future emotional and physical needs;

(3) the child s current and future emotional and physical danger;

(4)the parenting abilities of those seeking custody and the programs available to them to promote the child s best interest;

(5)plans for the child and the stability of the home or proposed placement; and

(6)the parents acts and omissions indicating the impropriety of the current parent-child relationship and the parents excuses for these acts and omissions.

See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). However, [t]he absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child s best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child. In re C.H., 89 S.W.3d at 27.

The removing caseworker, Thelma Houk, testified that Ortiz and Hopkins had unstable home environments; and, when D.L.H. entered foster care, she was aggressive, had speech delays, and acted out sexually. Expounding on Houk s observations, D.L.H. s foster mother, Yolanda Garza, testified that D.L.H was very oppositional upon her arrival, was humping the play dolls, removing her shoes and throwing them when angry, and shooting the finger when she got mad and said good-bye; cussed at the other children; bit, scratched, and kicked others, particularly after one of her parents failed to attend a scheduled visitation; was not toilet trained; and did not know her alphabet, colors, or numbers. Garza also testified that, although D.L.H. s speech had improved as a result of her attendance at speech therapy classes and her behavior had improved because of the Adderall and Clonidine she began taking after seeing a psychiatrist, D.L.H. still requires extraordinary care and time because of her continued behavior problems at school and at home. This testimony was corroborated by D.L.H. s therapist, Elizabeth Milbo, who testified that, despite medication and counseling, D.L.H. continues to have problems in school. Like Houk, Milbo testified that Ortiz s and Hopkins s home was unstable and, because of this and because Ortiz and Hopkins do not discipline or set boundaries, D.L.H. could not flourish living with them. In Milbo s opinion, D.L.H. has progressed since she has been in foster care because she has boundaries. Indeed, Ortiz acknowledged that she let a lot of things slide with regard to D.L.H. s behavior; and Hopkins agreed D.L.H. was doing better developmentally since her removal and that it is better for her not to be in his and Ortiz s chaotic situation.

The trial court s best interest finding is also supported by the evidence of violence between Ortiz and Hopkins and of violence enveloping them in general, placing D.L.H. in potential danger. Hopkins admitted he was currently on probation for felony violence against Ortiz, who also admitted she was currently on probation; and Ortiz admitted she and Hopkins were responsible for the family violence in their relationship. Sergeant Raul Salas, a police officer, testified he had responded to two domestic violence complaints regarding Ortiz and Hopkins. The October 1999 complaint, which arose out of Hopkins and Ortiz accusing each other of seeing other people, resulted in both Ortiz and Hopkins being charged with Class C Misdemeanor family violence and the children being removed from their home. After this incident, Salas heard Ortiz state that she was going to kill Hopkins. The second complaint in October 2003 arose out of Ortiz s accusation that, following an argument regarding whether she was seeing another man, Hopkins tried to prevent her from leaving by trying to grab the ignition key out of her hand and yanked her hair; as a result of this incident, Hopkins was charged with another Class C misdemeanor. D.L.H. s therapist, Elizabeth Milbo, also testified Ortiz had been involved in several fights with other women; and Hopkins admitted that a girl that [he] had a one night stand with showed up at one of his supervised visits with D.L.H. to talk to him and became involved in a confrontation with Ortiz. Although there is no evidence that Ortiz or Hopkins ever abused D.L.H, the Texas Family Code presumes it is not in a child s best interest to be placed with a sole managing conservator who has a pattern or history of family violence. See Tex. Fam. Code Ann. 153.004 (Vernon Supp. 2004).

Ortiz argues this evidence is insufficient to support the trial court s best interest finding because the only evidence of domestic abuse was Salas s testimony and the 1999 incident he described was too remote in time. However, this argument fails to acknowledge not only that Salas testified to a domestic disturbance in October 2003 but also Ortiz s admission that she and Hopkins have a history of family violence. Ortiz also argues that only Houk, Milbo, and Avila testified Ortiz s home was unstable and their testimony is easily controverted. But this argument ignores Houk s testimony that domestic violence issues and financial strain caused Ortiz s life to fall apart; she and Hopkins lost their home and transportation. Then, because Ortiz did not have stable housing, a stable environment, or stable employment, Ortiz failed to take advantage of the services she required, resulting in D.L.H. receiving insufficient care and being left with different people, and that Ortiz could not protect D.L.H. from harm, had inappropriate parenting skills, was violent, and had a criminal history. As for Milbo, Ortiz focuses on Milbo s testimony that she observed D.L.H. eating a lot of junk food but could not testify regarding what D.L.H. ate when Milbo was not present. However, this is insignificant compared to Milbo s testimony that Ortiz did not set proper boundaries for D.L.H. and that [D.L.H.] [would] not flourish with Ortiz or Hopkins and would do very poorly with either of them. As for Avila, Ortiz focuses on the testimony that Avila mistook her father for a suspicious man. Again, however, this fact is insignificant compared to Avila s testimony that Ortiz s lack of stability precluded her from receiving the services she needed; she had seen no change in Ortiz s parenting skills; she could not confirm Ortiz s work history, and it was not in D.L.H. s best interest to return to Ortiz or Hopkins because they could not ensure that D.L.H. would receive the care and guidance she needs.

Hopkins asserts the evidence establishes that he was able to attend to the child s medical needs. However, he fails to support his assertion with record references. Hopkins also argues that Houk s, Milbo s, and Avila s testimony is controverted by the testimony that D.L.H. had a strong bond with him, D.L.H. responded more appropriately with him, and [he] was capable of caring for children in an appropriate way. Hopkins fails to mention that this last statement is qualified: he is capable of caring for D.L.H. in an appropriate way as long as the demands are not extraordinary, and with continued support. And D.L.H. s foster mother, Yolanda Garza, testified that D.L.H. still requires extraordinary care and time because of the continued behavior problems at school and at home. More importantly, the disputed evidence is not so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination is in D.L.H. s best interest. And the fact that there is no evidence regarding D.L.H. s future needs or the Department s plans for her does not render the evidence insufficient to support the trial court s best interest finding. As noted above, [t]he absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child s best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child. In re C.H., 89 S.W.3d at 27. In light of the evidence, taken as a whole, we hold the trial court s best interest finding is supported by legally and factually sufficient evidence and affirm the trial court s judgment.

Sarah B. Duncan, Justice