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In re C.A.W.

Court of Appeals of Texas, First District

July 20, 2017

IN THE INTEREST OF C.A.W., A CHILD

         On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2015-04788J

          Panel consists of Chief Justice Radack and Justices Jennings and Bland.

          MEMORANDUM OPINION ON REHEARING

          Terry Jennings Justice.

         Attorney ad litem, representing the interests of the minor child ("the child"), has filed a motion for rehearing of our March 9, 2017 opinion and judgment, and he requests leave to submit a brief in support of the motion. Neither appellant, S.O., nor appellee, the Texas Department of Family and Protective Services ("DFPS"), opposes the granting of rehearing or our consideration of the attorney ad litem's brief. Accordingly, we grant the motion for rehearing, grant leave for the attorney ad litem to submit his brief on behalf of the child, withdraw our opinion and judgment of March 9, 2017, and issue this opinion and new judgment in their stead.

         In this accelerated appeal, [1] S.O. challenges the trial court's order, entered after a bench trial, terminating her parental rights to the child. In two issues, S.O. contends that the evidence is legally and factually insufficient to support the trial court's findings that she 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[2]and termination of her parental rights is in the best interest of the child.[3]

         We affirm.

         Background

         On August 13, 2015, DFPS filed a petition seeking managing conservatorship of the child and termination of S.O.'s parental rights to him.[4]

         At trial, DFPS caseworker Yadira Silva testified that DFPS took the child into custody after allegations arose of S.O.'s physical neglect, medical neglect, and neglectful supervision of the child. At the time, S.O., who was sixteen years old, and the child lived in the home of S.O.'s mother. The child had scabies and scratches, was not being properly supervised, and was malnourished. S.O. did not give the child medication to treat his scabies, and as a result he "suffered wounds" on his legs, forearms, and face. Silva noted that the home in which S.O. and the child lived was "filthy dirty, " with "feces around, " and S.O. did not properly wash the child's bottles. S.O. was "going out with [an alleged] father who [was] drink[ing] every night and . . . using cocaine" in the home.[5] And during an altercation between S.O. and an alleged father, the child "fell down as a result." Silva also noted that prior to DFPS's involvement, S.O. had not attended school for two years, and at seventeen years old, she was in the ninth grade.

         Initially, DFPS removed both S.O. and the child from the home of S.O.'s mother and placed them together at a shelter. However, when the shelter's staff notified DFPS that the child had "scratches on him, " DFPS removed him from S.O.'s care and placed him in a foster home.[6] Silva explained that at the time of trial, S.O. was in a "group home for teen moms" in San Antonio, Texas. And since DFPS had placed the child in a foster home, S.O. had given birth to a second child, who resided with her in the group home.[7] Further, S.O. told Silva that when she is eighteen years old, she will "age out" of the group home and intends to leave it.

         Silva further testified that although DFPS had given S.O. a Family Service Plan ("FSP"), she did not complete all of its requirements. Specifically, S.O. did not attend school regularly. During her summer-school session, S.O. missed school for two days, and during the previous semester, she had been absent from school for fifty days. S.O. told Silva that she had missed school because she did not want to go, missed the child, and did not feel well. When asked whether S.O. had "attend[ed] school daily unless she ha[d] a doctor's appointment, " as required by her FSP, Silva responded, "No." Silva also explained that S.O. had not provided her school grades to her caseworker and had not completed her individual or group therapy. However, S.O. did complete her psychological evaluation and parenting classes.

         At the time of trial, the child had been living with his current foster parents[8]for about six months, and they were meeting his medical needs. Silva explained that the child is doing "very well" in his current placement and his foster parents want to adopt him.[9] She noted that the child does not have "any ongoing conditions, special needs, " or "medical needs" and it is in his best interest to remain with his foster parents, rather than to be returned to S.O. Silva noted, however, that DFPS was only requesting permanent managing conservatorship of the child; it was not requesting termination of S.O.'s parental rights.[10] Yet, Silva opined that the child would not be "safe and stable" if returned to S.O. And if S.O. were to leave her group home, she would not be able to adequately care for the child or provide him with a safe and stable environment, particularly because she does not have any familial support and has another child in her care.

         Kimberly Bramlett, a volunteer with Child Advocates Inc. ("Child Advocates"), testified that the child is doing well in his current placement, and she opined that it is in his best interest to remain in his current placement and not be returned to S.O. Specifically, Bramlett expressed her concerns about S.O.'s ability to provide a safe and stable home for the child, S.O.'s intention to leave the group home when she is eighteen years old, and the fact that S.O. had not been attending school, even while living in a stable and structured environment in her group home. Thus, Bramlett requested termination of S.O.'s parental rights.

         S.O. testified that she had missed several days of school because she did not feel safe at school and had not been "receiving any education at the school." S.O. explained, "[T]hey had me doing a lot of things in PE. I almost fell down the stairs. There w[ere] a lot kids pushing me." And after she had given birth to her second child, she continued to be absent from school because she had "a lot of things" to deal with after "the baby's body br[oke] out from . . . eczema." S.O. noted that she had attended summer school during the two months prior to trial and she successfully completed it. However, she admitted that she knew that the trial court had ordered her to attend school regularly, and between October 2015 and February 2016, she missed "more than 50 days" of school. And she conceded that prior to giving birth to the child, she had not attended school for two years because she had "dropped out."

         S.O. further testified that when she is eighteen years old she intends to leave the group home and plans to "look for a [new] place [to live] before" she leaves it. Although she has not determined how she will obtain money to pay for a place to live, she "want[s] to keep" the child.

         The trial court admitted into evidence the FSP and October 27, 2015 Status Hearing Order, in which it found that S.O. had reviewed, understood, and signed her FSP. It further found that she had been "advised that unless she [was] willing and able to provide the child with a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the [FSP], her parental and custodial duties and rights may be subject to restriction or to termination or the child may not be returned to her." And the trial court ordered S.O. to complete the requirements of her FSP.

         Standard of Review

         A parent's right to "the companionship, care, custody, and management of" her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397 (1982) (internal quotations omitted). The United States Supreme Court has emphasized that "the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has concluded that "[t]his natural parental right" is "essential, " "a basic civil right of man, " and "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, "[w]e strictly construe involuntary termination statutes in favor of the parent." In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012).

         Because termination of parental rights is "complete, final, irrevocable and divests for all time that natural right . . ., the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick, 685 S.W.2d at 20. Clear and convincing evidence is "the measure or degree of proof that 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 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is "clear and convincing evidence, " the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264-68.

         In conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. Id. at 266. In viewing the evidence in the light most favorable to the finding, we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, " and we "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However, this does not mean that we must disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable trier of fact could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. Id.

         In conducting a factual-sufficiency review in a parental-rights-termination case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). We should 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 266-67. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).

         Sufficiency of the Evidence

         In two issues, S.O. argues that the trial court erred in terminating her parental rights to the child because the evidence is legally and factually insufficient to support the trial court's findings that she 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 and termination of her parental rights is ...


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