In re D.R.A.

• Decision Date: 15 June 2012
• Docket Number: No. 14–12–00119–CV.,14–12–00119–CV.
• Citation: 374 S.W.3d 528
• Parties: In the Interest of D.R.A. and A.F., Children.
• Court: Texas Court of Appeals

374 S.W.3d 528

In the Interest of D.R.A. and A.F., Children.

No. 14–12–00119–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

June 15, 2012.

Chabli Hall, Houston, for appellant.

Sandra D. Hachem, Houston, for appellee.

Panel consists of Justices BOYCE, CHRISTOPHER, and JAMISON.

OPINION

MARTHA HILL JAMISON, Justice.

Appellant D'Angelo T. appeals from the trial court's order terminating his parental rights to his daughter, D.R.A. In two issues, he challenges the legal and factual sufficiency underlying the trial court's termination findings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 13, 2010, the Texas Department of Family and Protective Services (DFPS) received a referral alleging neglectful supervision and physical neglect of two-year-old D.R.A. and her one-year-old sister A.F.¹ by their mother, Meddie; their maternal grandmother, Meddie T.; and their maternal aunt, Jessica. D.R.A. resided with her sister, Meddie, Meddie T., and Jessica in an apartment. When the child protective service worker and apartment staff arrived at the home, they found the children unaccompanied by an adult. Taking into consideration the unknown whereabouts of the children's fathers, DFPS took the children into custody on the ground that they were at risk of continued abuse and neglect.

On June 3, 2010, DFPS filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination of the Parent–Child Relationship and Application for Writ of Attachment as to D.R.A. and A.F. and Request for Temporary Orders. After an ex parte hearing, the trial court entered an emergency protective order making DFPS temporary sole managing conservator of the children. D.R.A. was placed into a home with Meddie's aunt, Ruthie. ²

On June 17, 2010, the trial court ordered D'Angelo to comply with the terms of DFPS's family service plan. On July 28, 2010, D'Angelo signed the plan, which required, among other things, that he complete parenting classes, maintain appropriate housing for D.R.A., undergo a psychological evaluation, complete a drug and alcohol assessment, submit to random drug testing, obtain and maintain stable employment for at least six consecutive months, and refrain from criminal activity.³

On or around September 23, 2010, D'Angelo participated in a home burglary as the getaway driver. He was arrested and subsequently convicted and sentenced to two years in prison for the burglary offense. He was released from prison in August 2011 after having been incarcerated for eleven months.

On November 10, 2010, D'Angelo was formally adjudicated as D.R.A.'s biological father. A bench trial was held on December 15, 2011. In the final termination order signed on January 12, 2012, the trial court terminated D'Angelo's parental rights based on Family Code section 161.001(1), subsection (O), finding D'Angelo failed to comply with the court-ordered family service plan, and section 161.001(2), finding that termination was in D.R.A.'s best interest.

LEGAL AND FACTUAL SUFFICIENCY CHALLENGE

In two issues, D'Angelo challenges the legal and factual sufficiency of the evidence supporting the trial court's termination findings. He specifically argues that DFPS did not prove D.R.A. was removed from the home for abuse or neglect and that the evidence was insufficient to overcome the presumption that maintaining the parent-child relationship is in D.R.A.'s best interest.

Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). Due to the severity and permanency of the termination of parental rights, the burden of proof at trial is heightened to the clear and convincing standard. SeeTex. Fam.Code § 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 § 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.N., 287 S.W.3d 183, 187 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

When determining legal sufficiency, we review “all the evidence in the light most favorable to the court's finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. However, this does not mean that we must disregard all evidence that does not support the finding. Id. 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.

When reviewing a factual sufficiency challenge under the clear and convincing burden, the analysis is somewhat different in that we must consider all of the evidence equally, both disputed and undisputed. See id. We must consider whether the evidence is sufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegation sought to be established. In re C.H., 89 S.W.3d 17, 26 (Tex.2002). We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.” Id.

In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the petitioner must establish, by clear and convincing evidence, one or more acts or omissions enumerated under subsection (1) of 161.001 and that termination is in the best interest of the child under subsection (2). Tex. Fam.Code § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.2005); In re S.N., 287 S.W.3d at 187.

I. Failure to Complete Family Service Plan

In his first issue, D'Angelo challenges the trial court's termination of his parental rights because he contends the evidence is legally and factually insufficient to support termination under Texas Family Code section 161.001(1)(O). To terminate parental rights based on 161.001(1)(O), a trial court must find by clear and convincing evidence that the parent

failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.

Here, D'Angelo does not dispute that D.R.A. was in the custody of DFPS or that he did not comply with all of the requirements of the family service plan. Instead, D'Angelo argues that DFPS cannot meet its burden of proof because D.R.A. was not removed as the result of abuse or neglect on his part. D.R.A. was removed from Meddie's home. However, subsection (O) does not require that the parent who failed to comply with a court order be the same parent whose abuse or neglect of the child warranted the child's removal. In re S.N., 287 S.W.3d at 188. Thus, D'Angelo's argument that D.R.A. was not removed due to his abuse or neglect and, therefore, subsection (O) does not apply, is without merit.

We still must determine, however, whether the evidence is sufficient to support the trial court's finding that D.R.A. was removed from her mother's home because of abuse or neglect. See id. at 190. The family service plan for D'Angelo, signed by a DFPS case worker on July 28, 2010, was admitted into evidence without objection. The plan enumerated the following facts.

On May 13, 2010, DFPS received a referral alleging neglectful supervision and physical neglect of A.F. and D.R.A. by their mother, grandmother, and aunt. The referral alleged two-year-old D.R.A. and one-year-old A.F. were “always found unsupervised everyday alone, two to three hours during the day and have been reported seen at night outside alone as well.” The family's apartment where D.R.A. and A.F. resided was off the main entrance to the apartment complex and across from the pool. The children would wander around the complex without diapers and with dirty faces. This issue was ongoing from January 2010 through May 2010 when the referral was made. In March 2010, a pest control company entered the apartment and found feces all over the floor and open diapers lying on the floor and couch and open lunch meat on the counter. The apartment was infested with rodents, and the pest control company labeled it a “dangerous health sanitation situation and a healthy [sic] safety hazard.” The children were found by the DFPS case worker and apartment staff to be unaccompanied by an adult. We conclude that the evidence is legally and factually sufficient to support the trial court's finding that D.R.A. was removed under Chapter 262 for abuse or neglect. We overrule appellant's first issue.

II. Best Interest of the Child

In his second issue, D'Angelo challenges the legal and factual sufficiency of the trial court's finding that termination was in D.R.A.'s best interest pursuant to section 161.001(2).

There is a strong presumption that the best interest of the child is served by keeping the child with its natural parent, and the burden is on DFPS to rebut that presumption. In re S.N., 287 S.W.3d...