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In re F.E.N.

Court of Appeals of Texas, Fourteenth District

January 11, 2018

IN THE INTEREST OF F.E.N., A CHILD

         On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2011-00355J

          Panel consists of Justices Boyce, Jamison, and Brown (Boyce, J., dissenting).

          MAJORITY OPINION

          Martha Hill Jamison Justice

         This is an appeal from a judgment terminating the parental rights of M.H. (Mother)[1] and C.N. (Father) and appointing the Department of Family and Protective Services sole managing conservator of the child, F.E.N. (Fay).[2] Father contends (1) there was legally and factually insufficient evidence to support the findings necessary for termination, (2) the trial court proceedings violated his due process rights, and (3) the trial court erred in appointing the Department as sole managing conservator of Fay. We reverse that portion of the trial court's judgment terminating Father's parental rights, and render judgment denying the Department's request for termination. We further reverse the order of the trial court naming the Department sole managing conservator and remand to the trial court for a determination of conservatorship. We affirm the remainder of the trial court's judgment terminating Mother's parental rights.

         BACKGROUND

         I. Procedural History

         In January 2011, the Department received a referral of neglectful supervision of Fay by Mother. It was reported that Mother placed Fay, who was 11 months old, at substantial risk of harm through inadequate supervision, drug usage, and domestic violence. Father was not contacted at that time.

         The Department filed a petition for protection of a child, conservatorship, and termination in a suit affecting the parent-child relationship. Father was named in the suit, but not served. The Department was named temporary managing conservator of Fay during the pendency of the proceedings. Fay was returned to Mother and on February 24, 2012, a decree was signed granting the Department sole managing conservatorship of Fay, naming Mother a possessory conservator of Fay, and making no findings as to Father.[3] The decree did not terminate either parent's parental rights to Fay.

         Approximately five months later, Fay was again removed from Mother based on Mother's positive test for cocaine. In early 2013, both Mother and the Department filed motions to modify the trial court's earlier decree. An acknowledgement of paternity naming Father as Fay's biological father was filed. Father filed a waiver of service and his answer. On September 6, 2013, an order was signed suspending visitation, as to Father, until paternity was established and he provided a clean drug test.[4] Father took both tests, but his visitation with Fay was not resumed. Almost two years later, Mother filed a voluntary relinquishment. The case went to trial May 10, 2017, four years after it was filed. The order terminating both parents' rights and appointing the Department as sole managing conservator of Fay was signed June 22, 2017.

         II. Trial Proceedings

         A. Evidence about Father

         Father[5] testified he was in a relationship with Mother for one to two years and lived with Mother prior to Fay's birth. Father has been employed as a shrimper for twenty to thirty years. As a result of his work, Father is out to sea five to ten times a year for five to six weeks at a time. Father visited Fay when he was home from work and provided monetary support to Mother and Fay. Mother testified Father visited whenever he could, helped with Fay, financially provided anything she needed, was a good father, and would do anything for Fay.

         Father was out to sea when Fay was first removed from Mother. During the original proceedings for conservatorship and termination, Father provided funds for Mother to retain a lawyer. Father believed the lawyer retained by Mother was working on his behalf as well. Mother testified Father and the retained lawyer spoke about paternity. Father acknowledged he did not retain a lawyer for himself.

         Mother testified she told Father a bit about the case, but did not provide him all of the information, telling him everything was taken care of. Mother admitted she kept Father "out of the loop" on some things because initially she wanted Fay to live with her mother to be closer to her.

         The Department caseworker testified that Father first participated in the case in late 2013, when she was assigned to the case. She testified her notes indicated Father refused to sign a service plan provided by a previous caseworker, but she could not confirm if the previous caseworker provided a translator during the interaction or if Father knew what he had been given. The new caseworker did not present Father a service plan. Father testified the Department did not provide him with a service plan and that he was not provided a translator during his interactions with the Department.

         The caseworker further testified that Father had not provided any support for Fay since 2013. Father acknowledged he had not sent financial support to anyone since 2014, but stated he was not asked to provide financial support and he was not provided information about where to send support. He testified he would have provided financial support if it was requested.[6] Because of a 2013 court order suspending his visitation, Father had not seen Fay in approximately three years. Father testified that he asked the court for visitation approximately three to four years prior to trial. He assumed that, because Mother was not allowed to visit Fay, he was not allowed to visit Fay either.

         Father wanted to have "my child back to the family." When he goes out to sea, he wants his current girlfriend to watch Fay for him.

          B. Evidence about Fay

         Fay was placed with her current foster family in March 2013, when she was three years old. When she first arrived, she repeated things the foster family said and when asked her name she simply said "name." Fay starting seeing a psychologist in January 2014. The psychologist testified Fay initially presented with echolalia (repetition of words spoken by another), select mutism, and difficulty engaging and attaching to others. The psychologist felt Fay's problems stemmed from a parent or caregiver being intermittently unavailable.

         Fay's foster mother testified today she is a thriving, wonderful seven year old. Fay has friends in the community and excels in school. The psychologist testified she has improved since placement with her foster family. Fay is now very bright, articulate, and able to express her emotions, and she has formed a secure attachment with her foster parents and social setting. The foster family hopes to adopt Fay. The Department caseworker testified it is in Fay's best interest to terminate Father's parental rights because Fay is bonded to the foster family and is in a stable, secure, loving environment.

         The psychologist testified Fay's well-being would be endangered by placing her with anyone other than the foster parents. She opined a different placement would result in a psychological disruption because of the secure attachment she has formed in the foster home. The psychologist did not recommend visits or placement with Father. She had concerns about his being at sea for five to six weeks at a time and his proposed plan of leaving Fay with his girlfriend while he was gone.

         C. Trial Court Findings

         On June 22, 2017, the trial court signed a decree terminating Mother's and Father's parental rights and appointing the Department sole managing conservator of Fay. The trial court found Father engaged in the conduct described in subsections (C) (voluntary abandonment), (E) (endangerment), (F) (failure to support), and (N) (constructive abandonment) of section 161.001(b)(1) of the Family Code. The court additionally found termination of Father's parental rights was in Fay's best interest. The trial court continued the appointment of the Department as Fay's sole managing conservator. This appeal followed.

         ANALYSIS

         Father raises three primary issues challenging the trial court's judgment. In his first issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings necessary for termination under section 161.001(b). In his next issue, Father contends the trial court violated his due process rights by not providing him with a translator throughout the proceedings. Finally, Father contends the trial court's appointment of the Department as sole managing conservator of Fay violates his fundamental rights and liberty interests.

         I. Findings Necessary to Support Termination

         A. Burden of Proof and Standard of Review

         Parental rights can be terminated upon clear and convincing evidence that (1) the parent has committed an act described in section 161.001(b)(1) of the Family Code and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

         Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The child's emotional and physical interests must not be sacrificed merely to preserve the parent's rights. Id.

         Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to clear and convincing evidence. See Tex. Fam. Code. Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'Clear and convincing evidence' means 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; accord In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. In re S.R., 452 S.W.3d at 358. "But the constitutional and statutory requirement that parental rights cannot be terminated unless grounds for termination are established by clear and convincing evidence necessarily means that the ultimate burden of proof based on clear and convincing evidence remains with the party seeking to terminate the parental rights." In re L.M.I., 119 S.W.3d 707, 720 (Tex. 2003).

         In reviewing the legal sufficiency of the evidence in a termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.

         In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d at 345. "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 reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d at 266. We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d at 712.

         B. Predicate Grounds

         The trial court terminated Father's parent rights based on its predicate findings under Texas Family Code sections 161.001(b)(1)(C), (E), (F), and (N). Termination of parental rights is warranted under these respective sections if the Department proves by clear and convincing evidence, in addition to the best-interest finding, that Father has:

(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;
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(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
(F) failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the ...

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