In the Interest of K.V., a Child v. <<

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Court of Appeals of Texas, Texarkana.

In the Interest of K.V., a Child

No. 06–15–00067–CV

Decided: January 22, 2016

Before Morriss, C.J., Moseley and Burgess, JJ.

MEMORANDUM OPINION

In May 2014, L.Q., the ostensible father of J.K.V., one of Emma's 1 children, reported from his location in Mexico that Emma was using drugs and was “seriously crazy.”  In August 2015, Emma—after a colorful history that included bizarre behavior, two unsuccessful suicide attempts, admitted drug use with at least one positive drug test, and a period of drug treatment in Mexico—had her parental rights to K.V., the younger of her two children, terminated in a bench trial in Gregg County.  Emma's appeal urges only that the evidence is factually insufficient to support the finding that termination of her rights to K.V. is in K.V.'s best interest.  Because factually sufficient evidence supports that finding, we affirm the trial court's judgment.

More of the background will help the reader understand the case.  In November 2013, Emma checked into the Women's Center of East Texas (Center) after her roommate, whom she described as a “drug addict,” hit Emma's child, eighteen-month-old J.K.V. Shortly after she entered the Center, Emma lost her job.  In February 2014, and while she remained a shelter resident, Emma gave birth to K.V.2

Emma experienced difficulties during the time she lived at the Center with her two children.  She engaged in two verbal altercations with Center residents, refused to sign the Center's cooperative living agreement, and became very angry when a Center employee tried to speak with her a second time about cooperation.

On April 29, 2014, the Center contacted the Department of Family and Protective Services (the Department) with a report that J.K.V. had fallen and bruised his face and cut his head and that, contrary to advice from the Good Shepherd Healthy Hotline, Emma refused to take J.K.V. to the hospital.  Department investigator Jessica Galindo visited the Center that evening and, on learning that Emma had already gone to bed, advised the Center to ask Emma to take J.K.V. to the hospital the following morning.  Galindo returned to the Center the following day, only to learn that Emma had not taken J.K.V. to the hospital.  Instead, Emma had taken the children with her to a beauty salon appointment.

During the course of an interview with Galindo after her return to the Center, Emma received an instant-read drug test, which indicated that she was positive for methamphetamine.  Emma agreed to submit to a urine drug screen at that time, but thereafter quickly became upset and irate and insisted that she and the children would leave the Center immediately.  J.K.V. became distraught and clung to Emma, while Emma was screaming and crying uncontrollably.  Finally, Emma threw herself into a chair, screamed that she could no longer feel her arms and legs, and fell to the floor in a fetal position.  During this time, K.V. was lying on the bed and was wet and soaked through his sleeper.

Eventually, Emma and J.K.V. were transported by ambulance to the emergency room at Good Shepherd Medical Center;  Emma was again screaming and “out of control.”  She was cursing and refusing to speak English.  At that point, Galindo made the decision to remove the children from Emma's possession, as she had no home for the children, no reliable transportation, no dependable economic resources, and an inability to provide food, clothing, and medical care for the children.

Although she was advised of the time and place of the fourteen-day hearing required to confirm or reverse the Department's decision to remove the children from her care, Emma did not appear at the hearing.  She did, however, visit with Galindo in her office when Galindo returned from the hearing, stating that she wanted to see her children.  When Emma learned that the hearing had already taken place, she became irate and called the police, stating that Galindo should be arrested for kidnapping.

Dionne Jorden, a caseworker with the Department, testified that Emma became confrontational in a discussion about working services, refused to discuss her service plan, and refused to work services.  Emma did submit to a psychological evaluation, but did not go to counseling.  Even though the service plan was presented to Emma several times, she refused to discuss it and never signed it.

Jorden testified that, from observations Jorden made during the five occasions Emma visited with the children after their removal, the children were not bonded to Emma.

In August 2014, Emma became very depressed and attempted to commit suicide.  She was then admitted “into a behavioral hospital in Tyler,” but, on her release about a week later, again attempted suicide.

While the precise sequence of events is not clear from the record, in October 2014, Emma stopped showing up for her visitation, and the Department was unable to contact her.  Sometime after her second failed suicide attempt, Emma traveled to Mexico, where she was admitted to a drug rehabilitation center for thirty days.  In November 2014, the Department was advised by Emma's brother-in-law that Emma had gone to Mexico.  Emma explained that she did not immediately tell the Department she was going to Mexico because she did not know what she was doing.

In December 2014, Emma called the Department to let them know that she was in Mexico.  Emma made no further contact with the Department from January through July 2015.  Then, on the August 10, Emma called the Department to advise that she had returned to Longview.  She stated that she was aware of the termination hearing scheduled for August 18.  Emma testified that she was over her drug habit, that she wants to raise her children, and that she would do anything for them.3  At the time of the termination hearing, Emma was employed at a restaurant and was living in a rented house in Longview.

The record contains testimony that Emma has not presented a plan to provide for her children and has taken no action under the service plan to demonstrate her ability to change the risky behavior that led to the Department's involvement.  The Department found no evidence that Emma ever sought medical treatment for her children or that she was able to perceive the children's medical, emotional, and physical needs.  Likewise, says the Department, there was no evidence that Emma was ever able to provide a safe and stable home for her children.

At the time of the termination hearing, K.V. was living with his biological father, J.R. The record contains the story of the initial development of that relationship.  The Department set up a service plan for J.R. and began introducing him to K.V. Eventually, K.V. bonded to J.R. J.R. brought toys for K.V. and would change his diapers and make his bottles.  As the weeks progressed, K.V. became more and more bonded with J.R. At the time of the hearing, K.V. and J.R. were “extremely bonded,” and K.V. appeared to be very happy with J.R. J.R. is employed and has a safe and secure home for K.V. K.V.'s grandmother also lives in the home, is “elated” with her grandson, and is very happy to have a child in the home.  Moreover, J.R. and J.K.V.'s foster parents have worked together to ensure that the children see each other and have a relationship with each other.  J.R. testified that he will continue to provide a safe and secure home for K.V. and that he looks forward to raising him and providing for his needs.

The standard of review in parental-rights termination proceedings is clear and convincing evidence.  Tex. Fam.Code Ann. § 161.001 (West Supp.2015);  In re J.F.C., 96 S.W.3d 256, 263 (Tex.2002).  The evidence is clear and convincing when the proof is such that it produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established by the State.  In re J.O.A., 283 S.W.3d 336, 344 (Tex.2009).

In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing.  In re C.H., 89 S.W.3d 17, 27 (Tex.2002).  We consider “whether disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its finding.”  J.C.F., 96 S.W.3d at 266.  If, in weighing the disputed evidence, the fact-finder could have reasonably resolved the conflicts to form a firm conviction that allegations concerning the grounds for termination were true, then the evidence is factually sufficient and the termination findings must be upheld.   C.H., 89 S.W.3d at 18–19.  In applying this view of the evidence in light of the “clear and convincing” standard required by Section 161.001 of the Texas Family Code, we must be careful not to “ ‘be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt.’ ”  In re R.A.L., 291 S.W.3d 438, 443 (Tex.App.—Texarkana 2009, no pet.) (quoting In re H.R.M., 209 S.W.3d 105, 108 (Tex.2006) (per curiam)).

To uphold the termination finding, we must determine whether the Department proved, by clear and convincing evidence, that termination of Emma's parental rights was in K.V.'s best interest.  See Tex. Fam.Code Ann. § 161.001. There is a strong presumption that a child's interest is best served by preserving the natural parent-child relationship.  That presumption can be overcome, however, with clear and convincing evidence to the contrary.  In re R.R., 209 S.W.3d 112, 116 (Tex.2006) (per curiam);  In re J.L.B., 349 S.W.3d 836, 848 (Tex.App.—Texarkana 2011, no pet.).

A number of factors may be considered in determining the best interest of the child:

(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, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.

In re K.S., 420 S.W.3d 852, 855 (Tex.App.—Texarkana 2014, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976)).  This list is not exclusive, and there is no requirement that any unique set of factors be proven.   Id. Certainly, it is not necessary to prove all nine factors.  C.H., 89 S.W.3d at 27.  The analysis of evidence relating to one factor may be adequate in a particular situation to support a finding that termination is in the best interest of the child.  In re J.O.C., 47 S.W.3d 108, 115 (Tex.App.—Waco 2001, no pet.), overruled on other grounds by J.F.C., 96 S.W.3d at 267 n.39. Additionally, evidence supporting the termination of parental rights is also probative of best interest.  C.H., 89 S.W.3d at 28.

Due to the young age of K.V., his desire cannot be determined.  The testimony indicates, however, that K.V. was not bonded to Emma, that he has been living with his biological father, and that he is being well cared for.  From this evidence, the trial court could infer that K.V. would prefer to remain with his father, in what the record suggests is a stable, loving environment.  See In re U.P., 105 S.W.3d 222, 230 (Tex.App.—Houston [14th Dist.] 2003, pet. denied) (considering evidence that child was well-cared for by foster family, had bonded with them, and spent minimal time with parent in assessing toddler's desires).

Several factors weigh against Emma's expressed desire to maintain her parental relationship with K.V. Foremost among these factors is Emma's abandonment of K.V., her abuse or neglect of K.V., and her inability to provide K.V. with a safe environment.  The trial court found that Emma “constructively abandoned the child[,] who has been in the temporary managing conservatorship of the Department ․ for not less than six months,” and that the Department has made reasonable efforts to return K.V. to her.  Further, Emma “has not visited or maintained significant contact with the child” and “has demonstrated an inability to provide the child with a safe environment.” 4  The trial court further found that Emma “failed to comply with the provisions of a court order that specifically established the actions necessary” for her “to obtain the return of the child who has been in the temporary managing conservatorship of the Department ․ for not less than nine months as a result of the child's removal from” Emma “under Chapter 262 for the abuse or neglect of the child.” 5  Emma did not dispute these findings on appeal.

During the one-year period in which Emma had the opportunity to perform her service plan for the purpose of being reunited with her children, Emma refused to do so.  She would not sign the plan and would not even discuss it.  Then, sometime in September 2014, she moved to Mexico, where she remained until only days before the final termination hearing.  And, although Emma testified that she received drug treatment in Mexico and had landed a job and a rented house upon her return, her past decisions reflect repeated poor judgment and irresponsible choices and provide a basis on which the trial court could have concluded that Emma could not adequately provide for K.V.'s physical and emotional needs, now and in the future, and that she lacked essential parental abilities.  See In re C.A.J., 122 S.W.3d 888, 893 (Tex.App.—Fort Worth 2003, no pet.) (lack of parenting skills, and income, home and unstable lifestyle considered in determining parent's ability to provide for child's physical and emotional needs);   J.O.A., 283 S.W.3d at 346 (considering parent's history of irresponsible choices in best interest determination).

Emma did not articulate any discernable plans for her children and has not provided them a suitable and safe home.  She neglected their physical and emotional needs.  K.V. appears to be presently in a safe and stable environment with his biological father, who expresses plans to raise K.V. It appears his physical and emotional needs are being met by his father, with whom he has bonded.

Based on this record, under the standards as set out above, we conclude that the evidence is factually sufficient to allow the trial court to determine that K.V.'s best interest was served by the termination of Emma's parental rights.  See Tex. Fam.Code Ann. § 161.001(b)(2).

We affirm the trial court's judgment.

FOOTNOTES

1.   In this opinion, we refer to appellant as Emma and to K.V. and other involved persons by initials, in order to protect K.V.'s privacy rights.  See Tex.R. App. P. 9.8.

2.   Emma's parental rights to J.K.V. were likewise terminated.  We address Emma's appeal of the termination order pertaining to J.K.V. in an opinion issued of even date herewith, in our cause number 06–15–00063–CV.

3.   J.R., K.V.'s father, testified that Emma was using cocaine while she was still in possession of J.K.V. and K.V.

4.   See Tex. Fam.Code Ann. § 161.001(b)(1)(N).

5.   See Tex. Fam.Code Ann. § 161.001(b)(1)(O).

Memorandum Opinion by Chief Justice Morriss