In the Interest of R.J.E., et al., Children--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00304-CV

IN THE INTEREST OF R.J.E., et al., Children

From the 288th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-PA-01825

Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 13, 2006

AFFIRMED

John and Elizabeth Elias appeal the trial court's order terminating their parental rights to their two children, R.J.E. and J.E. On appeal, John Elias ("Mr. Elias") challenges the trial court's ruling denying his jury demand, and Elizabeth Elias ("Mrs. Elias") challenges the factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the best interest of the children. We affirm.

Jury Trial

Mr. Elias contends that the trial court erred in denying his request for a jury trial because the jury waiver signed by his attorney was unenforceable. A waiver is enforceable if it is executed voluntarily, intelligently, knowingly, and with full awareness of its legal consequences. Brown v. McLennan County Children's Protective Serv., 627 S.W.2d 390, 393 (Tex. 1982). We review the trial court's denial of a jury demand for an abuse of discretion. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). In conducting an abuse of discretion review, we examine the entire record. Id. We find an abuse of discretion only when the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id. Because the trial court was able to observe the demeanor of the witnesses, our review must give deference to the trial court's credibility determinations. In re De La Pena, 999 S.W.2d 521, 526 (Tex. App.-El Paso 1999, no pet.); In the Interest of A.D.H., 979 S.W.2d 445, 447 (Tex. App.-Beaumont 1998, no pet.). Therefore, an abuse of discretion does not occur when the trial court bases its decision on conflicting evidence. De La Pena, 999 S.W.2d at 526; A.D.H., 979 S.W.2d at 447. Further, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); De La Pena, 999 S.W.2d at 526.

The record shows that Mr. Elias filed a jury demand and paid the required fee in July of 2005. The court set the case for a jury trial on November 7, 2005. Five days before trial, the parties were at the trial court addressing pretrial matters when the Eliases' attorneys requested that the trial be delayed so that the Eliases could complete their service plans. The attorney for the Texas Department of Family and Protective Services ("the Department") and the attorney for the children would not agree to an extension. However, when the Eliases' attorneys offered to waive a jury trial in exchange for an extension, the opposing parties agreed. The Eliases and their attorneys then went into the hallway, and the attorneys spoke on the phone with the Eliases' psychiatrist. When the attorneys reentered the courtroom, they signed the jury waiver. Mr. Elias's name was printed underneath his attorney's name. The court subsequently re-set the case for a non-jury trial in January of 2006.

On the day of trial, Mr. Elias fired his attorney. As a result, the court appointed a new attorney for Mr. Elias and re-set the case for a non-jury trial on March 13, 2006. On the day of the rescheduled trial, Mr. Elias's new attorney requested a jury trial, arguing that the jury waiver was invalid because Mr. Elias never signed it. Mr. Elias testified that he did not sign the waiver. He testified that he was in the hallway with Mrs. Elias and did not enter the courtroom with the attorneys when they signed the waiver. He also testified that he was never made aware that he was waiving a jury trial. However, when the Department's attorney cross-examined him, he admitted in the following exchanges that he was aware that his right to a jury trial was being waived:

Q: Okay. And do you remember your attorney going out there and telling you that unless you signed it we were getting ready to go to trial and you wanted more time?

A: Yes, and I told him I would do it under duress.

Q: Well, then why did you think your case got reset if you know what happened? It's a very easy question.

A: I told my lawyer under duress and that I was not signing my rights over to a jury trial.

The trial court denied Mr. Elias's jury demand and ordered the parties to proceed with a bench trial. The evidence in the record shows that Mr. Elias received an extension of time to complete his service plan in exchange for waiving a jury trial. Mr. Elias admitted he knew about the jury waiver and that it would delay the trial. Although Mr. Elias testified that he only agreed to the waiver under duress, the trial court could have assessed Mr. Elias's credibility and reasonably concluded that he agreed to waive a jury trial and only later claimed duress in an attempt to again postpone trial. Because there was some evidence of a substantive and probative character to support the trial court's decision and because we give deference to the trial court's credibility determinations, we hold that the court did not abuse its discretion in denying Mr. Elias's jury demand. Factual Sufficiency

In her sole point of error, Mrs. Elias contends that the evidence is factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of the children. To terminate parental rights under section 161.001 of the Texas Family Code, the court must find by clear and convincing evidence that (1) the parent has committed one or more of the acts or omissions listed under the first subsection of the statute and (2) termination is in the best interest of the children. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2006); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The same evidence may be probative of both prongs, but both prongs must be established; proof of one does not relieve the Department of the burden of proving the other. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); Holley, 544 S.W.2d at 370. Parental rights can be terminated only by a showing of clear and convincing evidence. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2006); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This heightened standard of proof results in a heightened standard of review on appeal. J.F.C., 96 S.W.3d at 264;C.H., 89 S.W.3d at 25-26. In reviewing factual sufficiency, we give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the Department's allegations. J.F.C., 96 S.W.3d at 266. We must consider whether disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Here, the trial court terminated Mrs. Elias's parental rights, finding by clear and convincing evidence (1) that she committed several of the acts or omissions listed in the first subsection of section 161.001 of the Texas Family Code and (2) that termination was in the best interest of the children. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2006). Mrs. Elias challenges the factual sufficiency of the court's second finding: that termination was in the best interest of the children. Several factors may be considered in determining the best interest of the child, including (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. Holley, 544 S.W.2d at 371-72. These factors are not exhaustive, and all of the factors need not be proven to justify termination. C.H., 89 S.W.3d at 27.

Applying these factors to the facts of this case, we conclude that the trial court did not err in finding that termination was in the children's best interest. The evidence shows that when Child Protective Services (CPS) Caseworker Casey Jones initially entered the Eliases' home, she saw food containers, trash, and other random objects, including hand saws and chemical containers, all over the floor. She testified that the house smelled like trash and urine. She also noticed broken glass on the floor of the dining room from a broken window. She testified that Mr. Elias told her that the window had been broken by his oldest son, who had come to the house and tried to kill him and Mrs. Elias. Mr. Elias was drinking alcohol at the time of the visit and told her that he was on psychotropic medications. He also told her that the CIA was after him and that the Mexican Mafia had a hit out on him because he had killed the gang's president. Mrs. Elias, who was pregnant at the time, told Jones that she had gone to a battered women's shelter the previous week because Mr. Elias had beaten her with a metal level. Mrs. Elias stated that R.J.E. was present when Mr. Elias was beating her, and that she told him to protect himself by hiding and getting small. She also stated that when she went to the shelter, she left R.J.E. in the home with Mr. Elias. Jones testified that at the time of the visit, R.J.E. was wearing only underwear, was filthy, and smelled of urine. Jones decided to remove R.J.E. from the home and take him to a shelter. The clothes that R.J.E. was told to put on before he left the home smelled heavily of urine. A therapist who treated R.J.E. after he was removed from his home testified that he told her he had seen his parents hit each other. After R.J.E. was removed from the home, Mrs. Elias gave birth to J.E., who was born addicted to opiates. Mrs. Elias testified that one of her prescribed medications caused the opiates in J.E.'s system. However, there were also concerns that J.E. suffered from Fetal Alcohol Syndrome. There was also evidence that CPS had a previous case with the Eliases involving the death of one of the Eliases' children. The cause of the child's death was said to be Sudden Infant Death Syndrome.

The record also shows that at the time of trial, Mrs. Elias had not seen R.J.E. or J.E. in nearly a year and had not fulfilled all the requirements necessary for the return of her children. Mrs. Elias testified that the reason for the lapse in visitation was that CPS wrongfully refused to let her see the children, but CPS Caseworker Yvonne Voigt testified that Mrs. Elias knew that visitations could resume if she signed a medical release form allowing her psychiatrist to release a list of her medications and if she passed a required urine analysis. In addition, although Mrs. Elias completed some of the terms of her service plan, she had not completed counseling and a domestic violence class. Mrs. Elias also testified at trial that she did not have a job and that she depended on Mr. Elias's pension to pay for her living expenses. Most significantly, when Mrs. Elias was asked whether she wanted her children returned to her, she stated that she did not want them returned immediately. She stated that she first wanted them placed with her cousin and her cousin's husband because she felt that her cousin, who had never met the children, would be a better parent. There is also evidence that R.J.E. made substantial progress after his removal from the Eliases' home and particularly after visitations with his parents stopped. His therapist testified that when she first began working with him, he was withdrawn, had behavioral and bed-wetting problems, and had difficulty getting along with other children in his foster home. She stated that since visitations with his parents ended, his bed-wetting stopped, his behavior improved, and he became more trusting of his foster family. In addition, she stated that R.J.E. had previously been diagnosed with a pervasive developmental disorder but no longer showed signs of the disorder. She testified that she felt it was in R.J.E.'s best interest that Mrs. Elias's parental rights be terminated. CPS Caseworker Yvonne Voigt also testified about the children's progress. Voigt testified that when she first worked with R.J.E., he would curl up in a ball, rub his eyes, and not interact with her at all. She stated that at the time of trial, R.J.E. was still hesitant about allowing people into his circle but was playful, outgoing, and got along well with his peers and foster family. She also testified that he had recently hugged her for the first time. Regarding J.E.'s progress, Voigt testified that J.E. was almost starting to walk and received weekly therapy exercises to address concerns that she had Fetal Alcohol Syndrome. Voigt testified that she believed it was in both children's best interest that Mrs. Elias's parental rights be terminated.

Considering the entire record, we hold that the evidence is sufficient for the trial court to have reasonably formed a firm belief or conviction that termination of Mrs. Elias's parental rights was in the best interest of R.J.E. and J.E.

Conclusion

We affirm the trial court's order.

Karen Angelini, Justice