In the Interest of H.R.C., a Child--Appeal from County Court at Law of Kerr County

MEMORANDUM OPINION
No. 04-06-00801-CV
IN THE INTEREST OF H.R.C., A CHILD
From the County Court at Law, Kerr County, Texas
Trial Court No. 05-758-C
Honorable Spencer Whitewood Brown, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: September 19, 2007

 

AFFIRMED

This is an accelerated appeal of an order terminating Tosha Weaver's ("Weaver") parental rights to her daughter, H.R.C. (1) See Tex. Fam. Code Ann. 263.405 (Vernon Supp. 2006). The case was tried to the court over three days in October of 2006, after which the trial judge found that Weaver had knowingly placed or knowingly allowed H.R.C. to remain in conditions or surroundings which endangered H.R.C.'s physical or emotional well-being, Weaver had engaged in conduct or knowingly placed H.R.C. with persons who engaged in conduct that endangered the physical or emotional well-being of H.R.C., and that termination was in the child's best interest. See Tex. Fam. Code Ann. 161.001 (1) (D), (E), (2) (Vernon Supp. 2006).

In her First Supplemental Brief, Weaver contends that the evidence is legally and factually insufficient to support the trial court's order terminating her parental rights to H.R.C. (2) We affirm the trial court's judgment in all respects.

Factual and Procedural Background

Weaver's four year old daughter, H.R.C., was removed by the Texas Department of Family and Protective Services ("the Department") on November 7, 2005, based on referrals alleging that Weaver locked the child out of the house at night; chased the child with a broom, a coat hanger, and a belt; took the child outside on cold nights inappropriately dressed in t-shirts and short pants; and, lived with the child in a dirty home. A Family Service Plan was established which required Weaver to complete parenting classes, a psychological evaluation, a psychiatric evaluation, a neuro psych evaluation, and individual counseling, as well as participate in random drug tests. The Department subsequently determined that Weaver was unable to demonstrate any skills or knowledge she had learned despite having taken the parenting class two times and further, had failed to progress in therapy; as a result, the Department sought to terminate Weaver's parental rights.

At trial, Norman Taylor, a caseworker, testified that he had investigated Weaver four different times for abuse or neglect in the past. Additionally, he stated that at the time H.R.C. was removed, Weaver was resistant and refused to cooperate, resulting in the need for police officers to restrain Weaver and protect the child.

Dr. Gatlin, an emergency room physician at Sid Peterson Memorial Hospital, testified that he had seen H.R.C. on more than one occasion and that in his opinion, the child was not safe with Weaver, whom he believed was suffering from a psychiatric illness. Dr. Gatlin based his opinion, in part, on the fact that Weaver took H.R.C. to the Emergency Room nine times during a six month period. On eight of these occasions, he found nothing medically wrong with the child. (3) On one of these eight occasions, Weaver claimed that the child had stopped breathing, and that she had performed CPR on the child. Dr. Gatlin testified that based upon his evaluation of the child, there was no evidence of respiratory distress or illness and that H.R.C. was "happy, healthy, and non-toxic." Dr. Gatlin further testified that unnecessarily administering CPR could be very harmful to the child and that in his opinion, Weaver was exhibiting paranoid ideation and further, was projecting symptoms onto the child that the child did not have.

Several of Weaver's neighbors testified that they witnessed Weaver chasing H.R.C. with a belt, a broom, and a hanger, and also observed H.R.C. outdoors dressed inappropriately for the weather. Additionally, Weaver's neighbors stated that they observed Weaver lock the child out of the apartment late at night, sometimes as late as 3:00 a.m., and that they heard H.R.C. screaming and crying outside. One neighbor testified that on one occasion H.R.C. was running a high fever, but instead of trying to bring the fever down, Weaver told the neighbor she was trying to bring H.R.C.'s fever up. To do so, Weaver gave the child a warm bath, had the child sit on a heating pad while wrapped in a blanket, and then pressed H.R.C. to eat until she vomited.

Weaver completely denied locking H.R.C. out of the apartment and chasing her with a broom, belt, or hanger. She testified that she had been the victim of family violence about 50 to 100 times and stated that her ex-husband was responsible for most of these acts. However, there was also evidence that Weaver's ex-husband, and not Weaver, filed for divorce, and that Weaver's visitation rights to her two older children were restricted by another court, while her ex-husband was granted joint managing conservatorship with the exclusive right to establish the primary residence of the children without regard to geographic location. (4) Additionally, Weaver, who had been arrested for criminal trespass and resisting arrest, was dating and planned to marry David Taylor, who had a rather extensive criminal record, including: pleading guilty only one month earlier to assaulting Weaver; being arrested for unauthorized use of a motor vehicle in 2003 while admittedly "extremely drunk"; being arrested for possession of marijuana in 2003; and, being arrested for possession of cocaine in 2005. Taylor also admitted to using marijuana for the past ten years and cocaine for the past two years and further, admitted he was not paying his child support as ordered. Moreover, Taylor downplayed the incident wherein he was accused of assaulting Weaver, insisting it was "a lot of over-exaggerated" [sic], although he admitted he pled guilty to the offense.

Nanette Newbern, a child therapist who was treating H.R.C., testified that the child had stated that she did not want to return home with Weaver and that she was afraid of her. Additionally, Ms. Newbern reported behavior and comments made by H.R.C. that indicated the child had been exposed to sexual abuse and sexual activity while living with Weaver, including a report that three men had punched her and one had sexually molested her by sticking his fingers in her rectum. The child also made outcries to the foster mother which included the following: H.R.C. knew about being kissed and undressed by someone; her bottom would get red from spankings; she saw her mother kill a man with a knife; her mother threw her in a dumpster; her mother would lock her out of the apartment; and, her mother would hit her on the head. (5) Additionally, H.R.C. was aware that Weaver had been arrested before and indicated that Weaver had stolen from others in the past.

There was also testimony that Weaver violated a court order by seeking out her ex-husband in an attempt to contact one of her children who lived with him, despite the fact that the court order precluded her from both going to her ex-husband's place of work and contacting her children. During this incident, Weaver went to her husband's work place where she used profanity, argued with the police until the situation escalated, and eventually resisted arrest. H.R.C. was present throughout the incident, and Weaver's mother had to be called to pick up the child.

Mike Embree, a former investigator with Adult Protective Services, investigated Weaver based on allegations of mental health neglect. He testified that he interviewed Weaver after she took H.R.C. to the emergency room believing the child to be dead and that Weaver's behavior was erratic: she would not sit down; she was running all over the place; and, she could not speak clearly. Additionally, Weaver claimed someone was poisoning her. Wendy Hutchinson, a neighbor, testified that Weaver told her that the maintenance man was entering her room at night and raping her without her knowledge. Consequently, there was concern that Weaver's erratic and/or paranoid behavior was affecting her ability to properly care for H.R.C.

Following a bench trial, the trial court terminated Weaver's parental rights, finding that Weaver had knowingly placed or knowingly allowed H.R.C. to remain in conditions or surroundings which endangered H.R.C.'s physical or emotional well-being and that Weaver had engaged in conduct or knowingly placed H.R.C. with persons who engaged in conduct that endangered the physical or emotional well-being of H.R.C. See Tex. Fam. Code Ann. 161.001 (1) (D), (E). The trial court further found that termination of the parent-child relationship was in H.R.C.'s best interest and entered both Findings of Fact and Conclusions of Law, and Supplemental Findings of Fact. Id. 161.001(2).

Standard of Review

In a factual sufficiency review in a parental termination case, we consider whether the evidence is such that a reasonable fact finder could form a firm belief or conviction about the truth of the Department's allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Under that standard, we consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 256, 266 (Tex. 2002). 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 have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

In a legal sufficiency review in a parental termination case, we look at 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. Id.

Parental Termination

The natural right existing between parents and their children is of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings must be strictly scrutinized. In the Interest of G.M., 596 S.W.2d 846, 846 (Tex. 1980). Due process requires application of the clear and convincing standard of proof in cases involving involuntary termination of parental rights. J.F.C., 96 S.W.3d at 263. Clear and convincing evidence is that measure or degree of proof which 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; see also G.M., 596 S.W.2d at 847; In the Interest of Z.J., 153 S.W.3d 535, 539 (Tex. App.--Amarillo 2004, no pet.). 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. Parental rights, however, are not absolute, and it is essential that the emotional and physical interests of the child not be sacrificed merely to preserve those rights. C.H., 89 S.W.3d at 26.

Section 161.001 of the Texas Family Code provides that a court may order termination of the parent-child relationship if it finds 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; 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. C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d at 370.

Discussion

In the present case, the trial court terminated Weaver's parental rights, finding by clear and convincing evidence (1) that Weaver knowingly placed or knowingly allowed H.R.C. to remain in conditions or surroundings which endangered the child's physical or emotional well-being and further, that Weaver engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child; and (2) that termination was in the best interest of the child. See Tex. Fam. Code Ann. 161.001(1) (D), (E), (2).

Endangerment is defined as exposing to loss or injury, to jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.--Fort Worth 2003, no pet.). Although subsection (D) addresses the child's surroundings rather than the parent's conduct, conduct by a parent or other resident of a child's home can produce an environment that endangers the physical or emotional well-being of a child. Tex. Fam. Code Ann. 161.001(1) (D); see In the Interest of C.L.C., 119 S.W.3d 382, 392-93 (Tex. App.--Tyler 2003, no pet.).

Subsection (E) endangerment must be a direct result of a parental course of conduct; however, the conduct described does not have to be specifically directed at the child, nor does it have to cause an actual injury to the child or even constitute a concrete threat of injury to the child. Tex. Fam. Code Ann. 161.001(1) (E); see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In the Interest of R.D., 955 S.W.2d 364, 368 (Tex. App.--San Antonio 1997, pet. denied). Rather, the statute is satisfied by showing that parental conduct simply jeopardized the child's physical or emotional well-being. See Director of the Dallas Cty. Child Protective Servs. Unit v. Bowling, 833 S.W.2d 730, 733 (Tex. App.--Dallas 1992, no writ). Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.--Fort Worth 2004, pet. denied). The parental course of conduct includes both the parent's actions and the parent's omissions or failures to act. See In the Interest of B.S.T., 977 S.W.2d 481, 484 (Tex. App.--Houston [14th Dist.] 1998, no pet.).

Because the evidence pertaining to subsections 161.001(1)(D) and (E) are interrelated, we conduct a consolidated review. J.T.G., 121 S.W.3d at 126. The evidence reflects that Weaver engaged in a course of conduct of endangering H.R.C. including unnecessarily giving H.R.C. rescue breathing; having paranoid ideation regarding H.R.C.'s "condition" and believing the child was sick when she was not; shutting the child out of the home late at night on more than one occasion; chasing the child with a broom, a coat hanger and a belt; dressing the child inappropriately for the weather; having the child sit on a heating pad while wrapped in a blanket when her temperature was already very high, and pressing food upon the child until she vomited; and, being arrested for criminal trespass and resisting arrest in H.R.C.'s presence. And although Weaver denied many of these allegations, claiming that the witnesses had a grudge against her, H.R.C. reported a number of these complaints to her counselors after being removed from the home. Thus, applying the appropriate standard of review for legal and factual sufficiency of the evidence, we find the evidence of Weaver's behavior supports the trial court's findings that Weaver violated subsections 161.001(1)(D) and (E).

The trial court further found that termination of the parent-child relationship was in H.R.C.'s best interest and entered both Findings of Fact and Conclusions of Law, and Supplemental Findings of Fact. Id. 161.001(2). Accordingly, we now address whether the evidence was legally and factually sufficient to support the trial court's finding that termination of Weaver's parental rights was in H.R.C.'s best interest.

The Texas Supreme Court has set out the following factors to assist with determining when termination is in a child's best interest: (1) desires of the child; (2) emotional and physical needs of the child now and in the future; (3) emotional and physical danger to the child now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the child; (6) plans for the child by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts/omissions of the parent which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts/omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive, but includes the most important considerations. Swate v. Swate, 72 S.W.3d 763, 767 (Tex. App.--Waco 2002, pet. denied). Although no single consideration is controlling, the analysis of one factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child. Id.

Desires of the child.

Although H.R.C. was only four year's old when she was removed, the record reflects that she feared Weaver, did not want to go back home with her, and that she wanted to remain with her foster family.

Emotional and physical needs of the child now and in the future.

Although Weaver testified that she had a home and had prepared a room for the child, several witnesses testified that Weaver was unable to meet the child's emotional needs. There was also testimony that when H.R.C. was removed from Weaver's care at the age of four, she was still not potty trained, ate baby food, and drank from a bottle. H.R.C. also had not received any immunizations after the age of eighteen months.

On the other hand, Ms. Newbern testified that the foster family was meeting the child's physical and emotional needs, that H.R.C. had improved her communication skills, was no longer anxious, and had acquired other skills she previously did not have.

Emotional and physical danger to the child now and in the future.

Although Weaver has been ordered by several courts to undergo counseling, she does not appear to recognize the need for treatment. Indeed, one counselor testified that her resistence to treatment results in treatment being ineffective. Additionally, Dr. Gatlin, who testified he believed Weaver was suffering from a psychiatric illness, indicated it would be unsafe for H.R.C. to remain with Weaver if her mental condition is left untreated.

Weaver also testified that she planned on having a family with Taylor, who pled guilty to assaulting her and admitted to having an extensive criminal history, including recent drug use. And although Taylor testified that he had been "drug free" since his arrest approximately ten months earlier for possession of cocaine, he stated he was able to quit without any treatment programs despite having used marijuana for the last ten years and cocaine for the last two years. At trial, Weaver denied that Taylor had assaulted her one month prior to trial, even though Taylor had pled guilty, and testified that she planned on helping Taylor stay off drugs. Sadly, much of this testimony reflects examples of Weaver's poor judgment that could expose H.R.C. to potentially dangerous situations.

Parental abilities of the individuals seeking custody.

Although Weaver took parenting classes twice, there was evidence that Weaver was unable to demonstrate any skills or knowledge she had learned. Indeed, Weaver denied the allegations that she had abused or mistreated H.R.C. and did not appear to recognize that there was a problem with the manner in which she had cared for H.R.C. There was also evidence that Weaver believed H.R.C. had symptoms or illnesses that others, including medical professionals, were unable to observe.

Programs available to assist these individuals to promote the child's best interest.

The Department required Weaver to undergo a psychological evaluation, drug assessment, drug treatment, random drug screening, parenting classes, and counseling. Many of these same programs were ordered pursuant to the Order In Suit To Modify Parent-Child Relationship involving Weaver's two older children. Joni Chavez-Martell, Weaver's therapist, testified that therapy is not effective for someone like Weaver because she is resistant and defensive. Additionally, Dr. Gatlin testified that in his opinion it was not safe for H.R.C. to be with Weaver given her untreated psychiatric behavior. He further stated that even if Weaver were receiving treatment, his concerns for H.R.C. would only be eased and not allayed.

Plans for the child by these individuals or by the agency seeking custody.

Although Weaver testified that she purchased a trailer and had prepared a room for H.R.C., she could not articulate a comprehensive plan for the future of the child. However, Ms. Nanette Newbern, the child's therapist, testified that the foster parents were interested in adopting H.R.C. and further, that they were meeting all of H.R.C.'s needs.

Stability of the home or proposed placement.

Ms. Newbern believed the child lacked stability because, upon removal from Weaver's home, H.R.C. was initially fearful and anxious, had poor language skills, and did not know her numbers or colors. However, throughout her placement with the foster family, the child thrived, learned new skills, and exhibited less and less anxiety over time.

Acts/Omissions of the parent which may indicate that the existing

parent-child relationship is not proper.

 

There was testimony that Weaver gave H.R.C. rescue breathing although there was no evidence H.R.C. had stopped breathing; had paranoid ideation regarding H.R.C.'s "condition" and believed the child was sick when she was not; shut the child out of the home late at night on more than one occasion; chased the child with a broom, a coat hanger and a belt; dressed the child inappropriately for the weather; had the child sit on a heating pad, while wrapped in a blanket, when her temperature was already very high, and pressed food upon the child until she vomited; and was arrested for criminal trespass and resisting arrest in H.R.C.'s presence.

Any excuse for the acts/omissions of the parent.

Weaver offered no excuse for locking H.R.C. out of the apartment and in fact, denied that she did so. Weaver also denied chasing H.R.C. with a coat hanger, a belt or a broom, and attempted to explain accusations that she had chased the child with a broom with the following: "... I was seen outside, probably, sweeping. And getting cobwebs off the wall, and stuff. Like my landlord told me that I had to do for inspection." Additionally, Weaver denied that Taylor had assaulted her despite having signed a statement that Taylor grabbed her shoulders, threw her down, hit her head on the floor, and choked her. Taylor later pled guilty to the offense.

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

Conclusion

Having determined that the evidence was legally and factually sufficient, we affirm the trial court's Order of Termination in all respects.

Karen Angelini, Justice

 

1. Weaver's initial brief argued that section 263.405(i) of the Texas Family Code is unconstitutional on its face because this statute violates the due process and equal protection clauses of the Texas and United States Constitutions. Tex. Fam. Code Ann. 263.405(i). However, as this complaint has been addressed by Weaver's receipt of a free record, we address only those issues subsequently raised in Weaver's First Supplemental Brief.

2. Although the father's rights were also terminated, only Tosha Weaver has appealed the order of termination.

3. The only incident meriting treatment was when the child had a chin laceration, which Dr. Gatlin stated was a common injury for a four year old.

4. Pursuant to this other court's order, Weaver, who was found to have a history or pattern of emotional instability, was ordered in 2002 not to have any access to her two older children, either in person or by telephone, until she completed a parenting class, obtained counseling both alone and with the children, completed six months of supervised visitation with her children, and petitioned the court for another hearing to re-evaluate the visitation schedule. There was no evidence that Weaver had complied with this order.

5. The only outcry that was substantiated was the fact that Weaver would lock H.R.C. out of the apartment.