Alice Stoglin v. Texas Department of Protective and Regulatory Services--Appeal from 335th District Court of Bastrop County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Alice Stoglin, Appellant

v.

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT

NO. 92-2068-CCL, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

Alice Stoglin appeals from a decree terminating her right to parent her child, F.S. We will affirm the trial court's judgment.

BACKGROUND

Stoglin is F.S.'s natural mother. Stoglin suffers from mild mental retardation; she also suffered from drug and alcohol addiction during the times relevant to this proceeding. F.S. lived with Stoglin and his maternal grandmother until May 9, 1992. Around 10:00 p.m. that night, the police found seven-year-old F.S. wandering the streets, unable to find his way home. The police were not able to locate any of his relatives. The Texas Department of Protective and Regulatory Services (the "Department"), therefore, initiated emergency removal proceedings and subsequently became the temporary managing conservator of F.S.

Since May 10, 1992, F.S. has lived in several different emergency shelters, foster homes, and residential treatment centers as well as a group home. During this time, the Department and a volunteer community organization attempted to help Stoglin visit F.S., gain parenting and life skills, and overcome her drug and alcohol addictions. Unfortunately, Stoglin was either unable or unwilling to complete the rehabilitative programs and she did not attend all her scheduled visits with F.S.

The Department eventually moved to terminate Stoglin's parental rights and the district court conducted a hearing on the matter. F.S. was eleven years old at the time of the hearing. Based on evidence presented at the hearing, the trial court found that Stoglin knowingly placed or knowingly allowed F.S. to remain in conditions or surroundings that endangered his physical or emotional well-being. See Tex. Fam. Code Ann. 161.001(1)(D) (West 1996). The court also found termination of Stoglin's parental rights was in F.S.'s best interest. See Tex. Fam. Code Ann. 161.001(2) (West 1996). The court expressly based its decree of termination on these findings.

DISCUSSION

Involuntary termination of parental rights is appropriate only when a court finds (1) one of the enumerated criteria set out in the Family Code as grounds for termination are met, and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001(1), (2). The Department bore the burden of proving the elements by clear and convincing evidence. See id.; In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).

In two points of error, Stoglin attacks the legal and factual sufficiency of the evidence supporting the judgment. We must decide, therefore, whether the evidence sufficiently supports the trial court's finding that Stoglin knowingly placed or allowed F.S. to remain in an environment dangerous to his physical or emotional well-being. If it does, we must then decide whether the evidence sufficiently supports the trial court's finding that the termination was in F.S.'s best interest.

In reviewing a challenge to the legal sufficiency, we must consider only the evidence and inferences tending to support the finding and disregard all evidence to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). Then, in deciding whether the evidence is factually sufficient, we must consider and weigh all the evidence and set aside the judgment only it if is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The clear and convincing standard of proof for terminating parental rights does not change the standard of appellate review. D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ).

Conditions or Surroundings

In challenging the sufficiency of the evidence bearing on whether F.S.'s living conditions or surroundings endangered him, Stoglin contends the court was confined to considering evidence relevant only to F.S.'s physical living conditions. This Court, however, embraces the plain meaning of the statute, which in addition to protecting a child from a dangerous physical environment, protects a child from another person's conduct when that conduct renders the child's living environment unsafe. See D.O., 851 S.W.2d at 354; see also In re B.R., 822 S.W.2d 103, 106 (Tex. App.--Tyler 1991, writ denied).

There is evidence supporting the conclusion that Stoglin knowingly allowed F.S. to remain in an environment that endangered his emotional and physical well-being. Stoglin argues she left F.S. in the care of her mother, a person capable of adequately caring for F.S. The fact that F.S. was found alone on the street as a small child late at night when he was living with his grandmother suggests otherwise. Other evidence suggests Stoglin had a long history of drug and alcohol addiction, which inhibited her ability to parent and supervise F.S. properly and to understand his needs. According to several witnesses, Stoglin had many opportunities to learn parenting skills but she was unable or unwilling to complete the training programs. The record also contains evidence that Stoglin gave birth to two babies after F.S., and both were born cocaine positive. One of the infants was born after the Department had taken custody of F.S. Furthermore, the evidence establishes that Stoglin was incarcerated for some period of time before the termination hearing. Looking only at the evidence supporting the judgment, we hold a fact-finder could reasonably infer that Stoglin's apparent inability to care for her children exposed F.S. to a physically and emotionally dangerous environment. (1) Looking at the record overall, we recognize that Stoglin had good basic caring and loving instincts, but the evidence of these instincts does not outweigh the evidence suggesting her drug and alcohol addictions and mild mental infirmity precluded her from being able to maintain a safe environment for F.S. We, therefore, overrule Stoglin's points of error insofar as they relate to the finding that Stoglin created an environment that endangered F.S.'s physical or emotional well-being.

Best Interest of the Child

Stoglin also challenges the finding that termination of her parental rights is in F.S.'s best interest. See Tex. Fam. Code Ann. 161.001(2). A number of factors may be considered when evaluating a child's best interest. These include: (1) the desires of the child; (2) the emotional and physical needs of the child; (3) the emotional and physical danger to the child; (4) the parental abilities of the parent; (5) the programs available to assist the parent to promote the child's best interest; (6) the plans for the child by the parent or the agency seeking custody; (7) the stability of the home or the proposed placement; (8) acts or omissions of the parent that suggest the parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

The record contains much evidence in support of the conclusion that it is in F.S.'s best interest to terminate Stoglin's parental rights. There is evidence that F.S. was letting go of hope of reunification with his mother because she was not overcoming her chemical dependency. F.S. told his therapist he did not want to go home if the conditions did not change. The therapist noted F.S. had begun to take an interest in adoption. According to at least one witness, F.S. suffered from attention deficit hyperactivity disorder and had other personality characteristics that made it especially important for him to be in a positive environment. Furthermore, as detailed above, the evidence shows F.S.'s home environment was physically and emotionally dangerous to him, Stoglin was lacking in parenting skills, and Stoglin was apparently unable to take advantage of the programs available to assist her. Finally, there is evidence that F.S. was an adoptable child and that the Department had plans to place him in a positive environment. F.S.'s guardian ad litem, caseworker, and therapist all had the opinion that termination of Stoglin's parental rights was in F.S.'s best interest. The evidence detailed above is legally sufficient to support the trial court's decision that termination of Stoglin's parental rights was in F.S.'s best interest.

We are left with determining whether the evidence is factually sufficient to support the trial court's judgment. There is some evidence suggesting the termination was not in F.S.'s best interest. For example, F.S. apparently disliked living in the group home and did not want to stay there permanently. One caseworker admitted that children of F.S.'s age and personality characteristics are generally not adopted as quickly. More importantly, according to several witnesses, F.S. was upset by the prospect of losing all contact with his extended family. In fact, at one point F.S. told someone his greatest wish was to go back home. This evidence is powerful, especially in light of the fact that F.S. was eleven years old at the time of the termination hearing and that he had developed lasting bonds with his extended family. We do not, however, believe this evidence preponderates against the evidence supporting the court's judgment to the extent that it renders the trial court's decision manifestly unjust. We, therefore, hold the evidence is factually sufficient to support the trial court's judgment and overrule the remainder of Stoglin's points of error.

We note that an order terminating parental rights does not preclude the Department from allowing the extended family reasonable access to the child, nor does it eliminate the possibility that the extended family might apply to adopt F.S. See Tex. Fam. Code Ann. 161.206(c), 162.001(a). We trust the Department will consider the evidence concerning the likelihood of F.S.'s adoption and his strong desire to maintain his relationship with his extended family when the Department plans for his future.

CONCLUSION

After a careful review of the record, we conclude that the evidence is both legally and factually sufficient to support the trial court's findings. We accordingly affirm the trial court's judgment.

_____________________________________________

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and B.A. Smith

Affirmed

Filed: June 19, 1997

Do Not Publish

1. Cf. Trevino v. Dep't of Protective and Regulatory Servs., 893 S.W.2d 243, 251 (Tex. App.--Austin 1995, no writ); In re J.J., 911 S.W.2d 437, 440 (Tex. App.--Texarkana 1995, writ denied); Dupree v. Texas Dep't of Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.--Dallas 1995, no writ).

Best Interest of the Child

Stoglin also challenges the finding that termination of her parental rights is in F.S.'s best interest. See Tex. Fam. Code Ann. 161.001(2). A number of factors may be considered when evaluating a child's best interest. These include: (1) the desires of the child; (2) the emotional and physical needs of the child; (3) the emotional and physical danger to the child; (4) the parental abilities of the parent; (5) the programs available to assist the parent to promote the child's best interest; (6) the plans for the child by the parent or the agency seeking custody; (7) the stability of the home or the proposed placement; (8) acts or omissions of the parent that suggest the parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

The record contains much evidence in support of the conclusion that it is in F.S.'s best interest to terminate Stoglin's parental rights. There is evidence that F.S. was letting go of hope of reunification with his mother because she was not overcoming her chemical dependency. F.S. told his therapist he did not want to go home if the conditions did not change. The therapist noted F.S. had begun to take an interest in adoption. According to at least one witness, F.S. suffered from attention deficit hyperactivity disorder and had other personality characteristics that made it especially important for him to be in a positive environment. Furthermore, as detailed above, the evidence shows F.S.'s home environment was physically and emotionally dangerous to him, Stoglin was lacking in parenting skills, and Stoglin was apparently unable to take advantage of the programs available to assist her. Finally, there is evidence that F.S. was an adoptable child and that the Department had plans to place him in a positive environment. F.S.'s guardian ad litem, caseworker, and therapist all had the opinion t