H.C., In Interest of

• Decision Date: 19 February 1997
• Docket Number: No. 04-96-00378-CV,04-96-00378-CV
• Citation: 942 S.W.2d 661
• Parties: In the INTEREST OF H.C. and S.C., CHILDREN
• Court: Texas Court of Appeals

Page 661

942 S.W.2d 661

In the INTEREST OF H.C. and S.C., CHILDREN

No. 04-96-00378-CV.

Court of Appeals of Texas,

San Antonio.

Feb. 19, 1997.

William G. Delano, Jr., Michael D. Robbins, San Antonio, for Appellant.

Robert D. Byers, Zan Colson Brown, Sue T. Bentch, Karin R. Crump, St. Mary's Civil Justice Clinic, Angela Moore, Edward F. Shaughnessy, III, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before HARDBERGER, C.J., and LPEZ and DUNCAN, JJ.

DUNCAN, Justice.

Adam Arguelles, father of S.C., and Rachel Santos, mother of H.C. and S.C., appeal from the termination of their parental rights. ¹ We affirm.

FACTS

The Texas Department of Protective and Regulatory Services (the Department) sought and received temporary custody of H.C. and S.C. after it had received a referral from La Petite Academy concerning several burn marks on S.C.'s buttocks. After speaking with the children, the Department, which had been dealing with Santos since 1991 for physically and emotionally abusing her children, determined that Santos intentionally burned S.C. on the back of his buttocks four times with an iron. Shortly thereafter, the Department filed a petition to terminate the parental rights of Santos and Arguelles. The case went to trial, and the jury found in favor of the Department. Both parents now appeal.

TERMINATION

Arguelles and Santos argue in their first two points of error that the evidence is legally and factually insufficient to support the jury's finding that they (1) knowingly placed or knowingly allowed S.C. and H.C. to remain in conditions or surroundings that endangered the physical or emotional well-being of the child; or (2) engaged in conduct or knowingly placed S.C. and H.C. with persons who engaged in conduct that endangered the physical or emotional well-being of the child. See TEX. FAM.CODE ANN. § 161.001(1)(D), (E) (Vernon 1996). Additionally, Arguelles argues in his third point of error that termination is not in S.C.'s best interest. We disagree.

Standard of Review

Involuntary termination proceedings must be strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). The Family Code mandates that a parent's parental rights can only be terminated by a showing of clear and convincing evidence. TEX. FAM.CODE ANN. § 101.007 (Vernon 1996); In Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980). This court has previously held that the intermediate standard of review of clear and convincing will be used when an appellant challenges the factual sufficiency of the evidence. See Anthony v. Mays, 777 S.W.2d 200, 204 (Tex.App.--San Antonio 1989, no writ); In Interest of T.M.Z., 665 S.W.2d 184, 186 (Tex.App.--San Antonio 1984, no writ). ² In reviewing a jury's findings based on a clear and convincing standard, we ask ourselves

                whether sufficient evidence was presented to produce in the mind of a rational factfinder a "firm belief or conviction as to the truth of the allegations sought to be established."  In the Interest of G.M., 596 S.W.2d at 847.   Arguelles and Santos also raise legal sufficiency complaints.  In reviewing a legal sufficiency challenge, we "consider[ ] only the evidence and inferences that tend to support the finding, and disregard[ ] all inferences to the contrary."   W. Wendell Hall, Revisiting Standards of Review in Civil Appeals, 24 ST. MARY'S L.J. 1041, 1133 (1993)
                

Involuntary Termination

The Department sought to terminate Arguelles' and Santos' parental rights because they "knowingly placed or knowingly allowed the child[ren] to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[ren]; or engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endangers the physical or emotional well-being of the child[ren]." TEX. FAM.CODE ANN. § 161.001(1)(D), (E) (Vernon 1996) (emphasis added). These alternatives are distinguished by the cause of the children's physical or emotional endangerment. In Interest of S.H.A., 728 S.W.2d 73, 85 (Tex.App.--Dallas 1987, writ ref'd n.r.e.). "Under subsection (D), it must be the environment which causes the child's physical or emotional well-being to be endangered, as distinguished from the parent's conduct. Under subsection (E), the cause of the danger to the child must be the parent's conduct alone, as evidenced not only by the parent's acts but also by the parent's omissions or failures to act." Id. at 85.

Under either alternative, termination must also be in the best interests of the child. TEX. FAM.CODE ANN. § 161.001(2) (Vernon 1996). Several factors may be considered in making this determination: the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parenting abilities of the individual seeking custody, the stability of the home or proposed placement, the parent's acts or omissions indicating that the existing parent-child relationship is not a proper one, and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); Trevino v. Texas Dept. of Protective & Regulatory Serv., 893 S.W.2d 243, 248 (Tex.App.--Austin 1995, no writ).

Adam Arguelles

Santos testified that, while giving birth to S.C. in September of 1989, she called Marylou Arguelles, Arguelles' mother, to inform her that Arguelles was the father of her child. Santos also claimed that S.C. was the result of a rape by Arguelles. Arguelles testified, on the other hand, he never raped Santos, and he did not discover he had a child until January of 1991, when he started a prison term for theft and aggravated robbery.

Arguelles gave contradictory testimony concerning his relationship with the Department. When asked if he had ever received any service plans from the Department, he initially responded that he never received any correspondence from the Department, only court orders. He later testified, however, he recalled reviewing some of the service plans sent by registered mail. Arguelles also claimed to have written a letter to Elizabeth Herrera, one of the caseworkers, asking her to mail a letter to S.C. Herrera, the Legal Ongoing Caseworker with Child Protective Services, testified that she received only one letter from Arguelles asking that his mother be allowed to visit S.C.; Arguelles expressed no concern for S.C. Herrera also testified the only thing asked of Arguelles was that he keep in contact with the Department, but did not do so. It was noted on the family service plans, however, that Arguelles was kept informed about S.C.'s welfare through his mother. None of the social workers who testified ever had any contact with Arguelles. Regarding child support, Arguelles testified that he had been ordered to pay child support of $5 dollars a month, but he sent no child support for S.C. between October 1993 and June 1994, even though he was receiving $20-$25 dollars a month from his mother and for a short time was receiving $75 every two weeks. Finally, Arguelles testified he knew The evidence presented was sufficient to produce a firm belief or conviction that Arguelles either knowingly placed or knowingly allowed S.C. to remain in conditions or surroundings that endangered the physical or emotional well-being of the child or engaged in conduct, or knowingly placed S.C. with persons who engaged in conduct, that endangered the physical or emotional well-being of the child. See D.O. v. Texas Dept. of Human Serv., 851 S.W.2d 351, 355 (Tex.App.--Austin 1993, no writ) (father allowed child to remain in abusive environment); In Interest of L.S., P.P., G.S., & M.S., 748 S.W.2d 571, 575 (Tex.App.--Amarillo 1988, no writ) (mother allowed children to remain in surroundings in which sexual abuse was occurring). Accordingly, we overrule Arguelles' first two points of error.

of Santos' treatment of H.C. and was concerned for S.C., "but did nothing about them," even though the family service plans he received stated that S.C. was being placed with a relative due to Santos' physical abuse. Additionally, Arguelles' mother was given temporary custody of S.C. for eleven months beginning in May 1993 because of concerns for S.C.'s physical safety. Arguelles told the jury that once he is released from prison, he would seek full custody of both H.C. and S.C. Arguelles is not expected to be released from prison until the year 2000.

With respect to S.C.'s best interest, several witnesses testified that there is a very real danger that S.C. will be subjected to further abuse if he remains in his current surroundings. Arguelles testified that he cannot take custody of S.C. until released from jail in the year 2000, leaving S.C. in foster care for another three years even though S.C.'s aunt desires to adopt both S.C. and H.C., who are thriving in her home. Finally, testimony was presented that it would be detrimental for S.C. and H.C. to be separated. Based upon our review of the record, we hold that the evidence presented was legally and factually sufficient to show that the termination of Arguelles' parental rights was in the best interest of S.C. See Trevino, 893 S.W.2d at 252; see also Stuart v. Tarrant County Child Welfare Unit, 677 S.W.2d 273, 281 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.), overruled on other grounds, In Interest of W.S., 899 S.W.2d 772 (Tex.App.--Fort Worth 1995, no writ). Arguelles' third point of error is therefore overruled.

Rachel Santos

Santos testified she did not know how S.C. was burned because she was not present when the accident happened and did not discover that S.C. had been burned until she went to wake him up for school. After noticing S.C. was not out of bed, she went to S.C.'s room to ask him why he would not get up; S.C. answered that he was hurt. Santos saw S.C.'s burns and applied some ointment and bandaged them, but she did not take S.C. to a doctor because she was already giving him medical...