In Interest of V.G., No. 04-08-00522-CV (Tex. App. 8/31/2009)
| Decision Date | 31 August 2009 |
| Docket Number | No. 04-08-00522-CV.,04-08-00522-CV. |
| Parties | IN THE INTEREST OF V.G., E.G., A.G., J.G., JA.G. |
| Court | Texas Court of Appeals |
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-PA-02435 Honorable Peter Sakai, Judge Presiding.
AFFIRMED.
Sitting: Catherine STONE, Chief Justice, Sandee Bryan MARION, Justice and Steven C. HILBIG, Justice.
This is an appeal from a trial court's order terminating Victor's and Maricruz's parental rights to their five children ("the children").1 We affirm the trial court's judgment.
The Texas Department of Protective and Regulatory Services removed V.G., E.G., J.G., JA.G., and A.G. from their home in November 2006. The Department ultimately sought to terminate the parents' rights to all of the children. At the conclusion of the trial, the trial court agreed termination was the proper result and entered an order terminating the parental rights of both Victor and Maricruz. Victor and Maricruz filed separate motions for new trial and statements of appellate points. The trial court denied the motions for new trial, but found their appellate points were not frivolous. See Tex. Fam. Code Ann. § 263.405(d) (Vernon 2008). Victor and Maricruz filed individual notices of appeal and have filed independent appellate briefs challenging the termination. Maricruz and Victor contend the evidence is legally and factually insufficient to support the trial court's determination that termination was in the children's best interest, and the trial court erred in refusing to allow two of the children to testify. Victor raises three additional contentions, claiming the evidence did not support the trial court's finding that he knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being, ineffective assistance of counsel, and section 263.405(i) of the Texas Family Code is unconstitutional.
Parental rights can be terminated only upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and (2) termination is in the best interest of the children. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); Tex. Fam. Code Ann. § 161.001(1), (2) (Vernon 2008). Clear and convincing evidence is "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." J.O.A., 283 S.W.3d at 344 (quoting Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002)).
When the legal sufficiency of the evidence is challenged in a case where the burden of proof is by clear and convincing evidence, the reviewing court must look at all of the evidence in the light most favorable to the finding in question to determine "whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." J.F.C., 96 S.W.3d at 266. Looking at the evidence in the light most favorable to the finding means the court "must assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. The court must also disregard all evidence a reasonable factfinder could have found incredible. Id. However, the reviewing court should not disregard undisputed facts that do not support the finding because doing so "could skew the analysis of whether there is clear and convincing evidence." Id. After conducting this review, if the court determines no reasonable factfinder could have formed a firm belief that the matter in question is true, it must conclude the evidence is legally insufficient. Id.
When the factual sufficiency of the evidence is challenged in a clear and convincing case, the reviewing court must look at all of the evidence and, "[i]f, in the 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." Id. If the reviewing court finds the evidence factually insufficient, it should explain "why it has concluded that a reasonable factfinder could not have credited the disputed evidence in favor of the finding." Id. at 267.
A trial court has great discretion in determining the best interests of a child. Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex. App.-San Antonio 1995, no writ). "There are several factors that should be taken into account when determining whether termination is in the best interest of the child." In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). These include factors set forth in section 263.307 of the Family Code that are relevant in the particular case.2 See id.; In re C.R., 263 S.W.3d 368, 375 (Tex. App.-Dallas 2008, no pet.). Courts should also employ the non-exhaustive list of factors developed by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), to determine a child's best interests. Id. These include: (1) the child's desires, (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 those seeking custody, (5) the programs available to assist individuals seeking custody to promote the child's best interest, (6) the plans for the child by the individuals or agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parents, which may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the parent's acts or omissions. Id. These are commonly referred to as "the Holley factors." See, e.g., In re A.B., 269 S.W.3d 120, 126 (Tex. App.-El Paso 2008, no pet.); In re S.N., 272 S.W.3d 45, (Tex. App.-Waco 2008, no pet.). No single factor is controlling, and the factfinder is not required to consider all of them. Holley, 544 S.W.2d at 372. "The absence of evidence about some of these consideration would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." C.H., 89 S.W.3d at 27. And, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the child's best interest. Id. The Holley factors overlap with some of the statutory considerations set forth in section 263.307 and with evidence supporting predicate grounds for termination. In re K.C., 219 S.W.3d 925, 928 (Tex. App.-Dallas 2007, no pet.).
The Holley factors focus on the best interest of the child, not the best interest of the parent. A.B., 269 S.W.3d at 126. However, courts should indulge the strong presumption that the child's best interests will be served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).
Section 161.001 allows termination of parental rights if there is clear and convincing evidence that termination is in the child's best interest and a parent knowingly placed or knowingly allowed a child to remain in conditions or surroundings that endangered the child's physical or emotional well-being. Tex. Fam. Code Ann. § 161.001(1)(D), (2) (Vernon 2008). Endangerment means to expose to loss or injury, to jeopardize. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). Although the focus of section 161.001(1)(D) is on a child's living environment and not on the parent's conduct, parental conduct may produce an endangering "environment." J.T.G., 121 S.W.3d at 125; see In re D.T., 34 S.W.3d, 625, 633 (Tex. App.-Fort Worth 2000, pet. denied). Under section 161.001(1)(D), a single act or omission will support parental termination. In re L.C., 145 S.W.3d 790, 796 (Tex. App.-Texarkana 2004, no pet.).
The Department called nine witnesses: two doctors, five licensed counselors or therapists, one social worker, and the Department supervisor overseeing the case. Maricruz and Victor testified on their own behalf, and called a counselor who saw them just before the trial began.
The first Department witness was Dr. Jane Lynch, a board-certified pediatrician and pediatric endocrinologist who evaluated J.G. Dr. Lynch testified J.G. was referred to her in August 2005 by J.G.'s pediatrician because of "short stature." When Dr. Lynch first saw J.G. he had the height of a three and one half-year-old child and the weight of a three-year-old child, but he was seven and one-half years old. Maricruz attributed J.G.'s small stature to his premature birth. Upon testing, Dr. Lynch discovered J.G. was producing almost no growth hormone, and his growth hormone level was the lowest she had ever seen. She also noted delayed bone growth and opined J.G. had not been growing for some time. After conducting many tests, which failed to reveal an organic cause for J.G.'s problem, and based in part on Maricruz's statements that J.G. was "well cared for," ate well, and had a good appetite, Dr. Lynch diagnosed J.G. with "growth hormone deficiency." She prescribed growth hormone replacement therapy. Dr. Lynch testified that after this initial visit, she did not see J.G. for an entire year. His parents failed to obtain his growth hormone in a timely manner, failed to refill the prescription as required, and failed to meet with a neurologist to which he had been referred until Dr. Lynch's office intervened. She stated that in October 2006, she was contacted by the Department and was advised there were concerns J.G. was not growing because of "issues with feeding and concerns for some abuse in the home." The Department...
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