In the Interest of A. E., a child--Appeal from 321st District Court of Smith County

NO. 12-00-00221-CV

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE 321ST

 

IN THE INTEREST OF A.E.,

A CHILD JUDICIAL DISTRICT COURT OF

 

SMITH COUNTY, TEXAS

 
Melody Everhart ("Everhart") appeals the order of the trial court terminating her parental rights as to her son ("A.E."). In two issues, Everhart contends that the evidence was neither legally nor factually sufficient to support the trial court's order terminating her parental rights. We affirm.

Background

In May 1995, Everhart gave birth to A.E. The record reflects that A.E.'s father is unknown. In January 1998, Everhart was arrested for injuring A.E., who was then two years old. The record reflects that Everhart was inside a public library with A.E. A.E. began to cry, so Everhart picked A.E. up by the arm and took him outside. Once outside, the evidence is undisputed that Everhart hit A.E. several times, causing him to fall to the ground, at which point, she kicked him. Everhart then went inside to the bathroom, leaving A.E. outside. When police arrived at the library, A.E. was outside with the security guard. A.E. was found to be extremely dirty with a soiled diaper, which he appeared to have been wearing for several hours. Everhart was inside the library reading a book. When asked why she was inside and her son outside, Everhart replied that she knew her son was being taken care of. When asked about kicking the child, she responded that she only kicked him once. Everhart further stated that none of this would have happened had the librarian taken care of her son while she was reading, and that everybody should mind their own business. Everhart was arrested, pled guilty to injury to a child and was sentenced to four years of confinement. While serving her sentence, Everhart was written up on a number of cases. (1) As a result, she will not be eligible for parole prior to serving her full sentence.

As requested by Everhart, A.E. was initially placed in the care of Karen Sikini ("Sikini"). However, on April 16, 1999, A.E. was removed by the State from Sikini's care because of potential medical neglect and because Sikini stated that she could no longer care for A.E. and wanted him out of her home immediately. Finding that placement of A.E. with his grandmother, Joy Everhart, was unsuitable, the State of Texas (the "State") placed A.E. with his present foster family, the Miltons. The record reflects that A.E. has bonded well with the Miltons and they wish to adopt him.

 

Standard of Review

The evidence offered to support termination of parental rights must be clear and convincing before a court may terminate parental rights. See In the Matter of B.R., 822 S.W.2d 103,106 (Tex. App.- Tyler 1991 writ denied). Furthermore, in reviewing the evidence, we will apply the appropriate standard of review prescribed for "no evidence" and "insufficient evidence" points. Id.

In reviewing a no evidence point, we must consider only the evidence and inferences that tend to support the jury's verdict, disregarding all contrary evidence and inferences. See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). We may only sustain a "no evidence" point when the record discloses one of the following: (1) a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence, or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). It is not within our power to second guess the fact-finder unless only one inference can be drawn from the evidence. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).

On the other hand, when evaluating a factual sufficiency challenge, we will consider and weigh all of the evidence in the case, both evidence supporting the verdict and evidence which tends to contradict the facts upon which the jury based its verdict. See In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). We may not substitute our conclusions for those of the fact-finder and will reverse only if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id.

 

Applicable Law

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence (1) that the parent has knowingly engaged in criminal conduct that has resulted in the parent's conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition, and (2) that termination is in the best interest of the child. Tex. Fam. Code 161.001(1)(Q) and (2) (Vernon Supp. 2001). In determining the child's best interest, the trial court should consider factors 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 which 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. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

 

Discussion

Everhart contends that the evidence was insufficient to support the termination of her parental rights. We disagree. The record reflects that Everhart knowingly hit and kicked A.E. outside of a public library, leaving him while she returned to her reading inside the library. As a result, Everhart was arrested, pled guilty to the felony offense of injury to a child (2), was sentenced to four years of confinement and began serving her sentence on May 15, 1998. On April 19, 1999, following the State's removal of A.E. from Sikini, who was no longer willing or able to care for him, the State filed its petition for involuntary termination of the parent-child relationship. Self testified that Everhart would not be eligible for parole prior to the end of her sentence in May 2002.

Additionally, the record reflects that Everhart requested that A.E. live with her mother, Joy Everhart. However, following a home study, the State determined that placement of A.E. with Joy Everhart would be unsuitable due to Joy Everhart's history with Child Protective Services, which included prior allegations by Everhart that Joy Everhart and Everhart's grandmother subjected her to physical and emotional abuse throughout her childhood. (3) There is further evidence that since the State could not locate any relatives of Everhart with whom to place A.E., A.E. was placed with his current foster family, the Mitons. The foregoing evidence is almost entirely uncontradicted. Thus, we conclude that there is legally sufficient evidence of a clear and convincing character on which the trial court could have based its finding that Everhart was convicted of criminal conduct, in which she knowingly engaged, which resulted in her confinement for a period of more than two years, during which time she was unable to care for her child. Moreover, our review of the record in its entirety does not reveal any evidence which contradicts the foregoing evidence in such a way that would cause us to conclude that the trial court's finding was so against the great weight and preponderance of the clear and convincing evidence as to be manifestly unjust. See In re King's Estate, 244 S.W.2d at 661.

We next consider whether the termination of Everhart's parental rights is in A.E.'s best interest. There is a strong presumption that the best interest of the child is served by keeping custody in the natural parent. See In the Interest of K.C.M, 4 S.W.3d 392, 395 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). It is the State's burden to rebut this presumption. Id.

We first consider the desires of the child. See Holley, 544 S.W.2d at 372. Although A.E. did not testify, the record reflects that he has bonded well with the Miltons. The record further reflects that A.E. remembers Everhart as his "old mother" who kicked him. Moreover, there is evidence that on one occasion, during a Christmas Party for foster families, A.E. saw Kathryn Blalock, his case worker from Child Protective Services, and clung to his foster father, Reverend Milton ("Milton"), pleading that Milton not leave him. Thus, although there is no specific testimony from A.E., there is some evidence indicating that it is his desire to remain with the Miltons.

We next consider the emotional and physical needs of the child now and in the future. See Holley, 544 S.W.2d at 372. The record reflects that when A.E. was first placed with the Miltons, he was reserved and shy. Milton testified that although A.E. was polite, he would choke and bite other children, both at home and at daycare. However, Milton further testified that A.E.'s behavior improved over time. On the other hand, according to Milton's testimony, on occasions during which A.E. would have contact with Everhart, his behavior would regress and he began fighting and biting other children once more. Further, there is evidence that following contact with Everhart, A.E. suffered from sleeplessness and bed-wetting. However, the record reflects that as time passed with A.E. in the Miltons' care, and further contact between A.E. and Everhart ceased, A.E.'s behavior, once again, improved.

Next, we consider the emotional and physical danger to the child now and in the future. See Holley, 544 S.W.2d at 372. The evidence is undisputed that Everhart hit and kicked A.E., who was then two years old, and left him outside a public library. Based on these facts Everhart pleaded guilty to injury to a child. Although Everhart argues that there is no evidence that A.E. sustained serious injury, we reiterate that there is no dispute as to the fact that Everhart hit and kicked A.E. and left him outside a public library. During the hearing Everhart was questioned regarding her behavior at the library and asked whether she thought she could have handled the situation better. In response, Everhart stated, "I don't know if I could have. Well, I wish that I would have. I don't - I can't go back and say could I have done it. I just say I wish I would have." Further, the record reflects that Everhart requested that her mother, Joy Everhart, be permitted to care for A.E. Given this request, we cannot overlook the fact that, in her brief, Everhart describes in great detail how Joy Everhart physically and emotionally abused Everhart throughout her childhood. By her request, Everhart seeks to expose her child to an historically violent environment with which she had first-hand experience during her childhood. Everhart's request raises a tremendous concern as to probable emotional and physical danger to A.E. if Everhart's parental rights are not revoked. To the contrary, Everhart concedes that A.E. is flourishing and bonding with his foster family. The record is devoid of any facts suggesting that A.E. faces any emotional or physical danger if he is adopted by the Miltons.

We will consider the next four factors together. These factors involve the parental abilities of the individuals seeking custody, programs available to assist these individuals, the plans these individuals have for the child, and the stability of the home. See Holley, 544 S.W.2d at 372. Everhart concedes in her brief that the Miltons offer nothing short of a great environment for A.E. Milton's testimony bolsters Everhart's concession. Milton recognizes A.E.'s intelligence and testified that A.E. has a good singing voice. He testified that he is considering enrolling A.E. in St. Gregory's School. Milton further testified that he has begun to prepare financially for A.E.'s college education. Milton testified that he has three grown step-children and three adopted children close in age to A.E. There is no evidence of record or argument by Everhart that contradicts evidence that the Miltons have exceedingly high parental abilities and a stable home, are familiar, due to their experience with their other adopted children, with ways to promote A.E.'s best interest, and have already begun to make plans for A.E.'s education, both now and in the future.

Finally, we consider the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one and any excuse for the acts or omissions of the parent. See Holley, 544 S.W.2d at 372. Such consideration returns us to the undisputed fact that Everhart hit and kicked A.E., who was then two years old, and left him outside a public library. In her brief, Everhart states that she regrets the incident. While her regret may be genuine, such regret considered in conjunction with her testimony that she does not know if she could have handled the situation at the library better, does not amount to any kind of excuse for her behavior. To the contrary, it indicates that she still does not know of any better way to handle such a situation.

The foregoing evidence relating to A.E.'s best interest is almost entirely uncontradicted. Having reviewed the factors set forth in Holley, we conclude that there was legally sufficient evidence of a clear and convincing nature to permit the trial court to conclude that the State rebutted the presumption that it was in A.E.'s best interest that Everhart retain custody. Moreover, our review of the record in its entirety does not reveal any evidence which contradicts the foregoing evidence in such a way that would cause us to conclude that the trial court's finding was so against the great weight and preponderance of the clear and convincing evidence as to be manifestly unjust. See In re King's Estate, 244 S.W.2d at 661. Everhart's issues one and two are overruled.

Accordingly, the trial court's order terminating parent-child relationship is affirmed.

JIM WORTHEN

Justice

 

Opinion delivered July 25, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

 
(DO NOT PUBLISH)

1. In this context, the word "case" means a negative report resulting from misconduct while incarcerated. According to the testimony offered by Shirley Self ("Self"), Chief of Classification at the Texas Department of Criminal Justice, Hobby Unit, when a prisoner receives a certain number of cases, their status decreases, the result of which is typically greater restrictions placed on that prisoner. When Everhart began serving her sentence, her status was "line 1." At the time of the hearing, Everhart's status had been decreased to "line 3." Self testified that in order to be eligible for parole, she would have to re-achieve "line 1" status, which cannot possibly occur prior to the end of her four year sentence.

2. See Tex. Pen. Code Ann. 22.04 (Vernon Supp. 2001).

3. The record reflects that during her teen years, Everhart was removed from her mother's home due to allegations that both her mother and her grandmother beat her with, among other implements, an extension cord.