In re Interest of S.R.

• Decision Date: 13 November 2014
• Docket Number: 14–14–00416–CV.,Nos. 14–14–00393–CV,s. 14–14–00393–CV
• Citation: 452 S.W.3d 351
• Parties: In the Interest of S.R., S.R. and B.R.S., Children.
• Court: Texas Court of Appeals

452 S.W.3d 351

In the Interest of S.R., S.R. and B.R.S., Children.

Nos. 14–14–00393–CV

14–14–00416–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Nov. 13, 2014.

Faye Gordon, Angleton, Kelly McClendon, Lake Jackson, for Appellant.

Trey David Picard, Angleton, for Appellee.

Panel consists of Chief Justice FROST and Justices CHRISTOPHER and BUSBY.

OPINION

J. BRETT BUSBY, Justice.

In these consolidated appeals, both D.R. (the Father) and D.S. (the Mother) appeal from the decree terminating their parental rights to three children, S.R. (Scott), S.R. (Sally), and B.R.S. (the Baby) (collectively, the Children).¹ The Father raises three issues challenging the sufficiency of the evidence supporting the trial court's termination findings and the failure to appoint counsel for him until after the first adversary hearing. The Mother raises a single broad issue challenging the sufficiency of the evidence supporting termination. We affirm.

I. BACKGROUND

The record reflects that the Mother and Father were married in early 2009, but they separated in January 2012. The Children were very young during these proceedings: Scott was born in March 2010, Sally was born in January 2011, and the Baby was born in July 2012.

In 2011 and early 2012, before the youngest child was born, the Department of Family and Protective Services (the Department) became involved with the parents after receiving several referrals alleging drug use, unsanitary living conditions, physical abuse, sexual abuse, and neglect. Although the Department's investigation later ruled out physical and sexual abuse of the Children, the Department was concerned about the parents' acknowledged untreated mental illnesses and instances of domestic violence in front of the Children. The parents were offered family-based safety services for protection of the Children, and in May 2012, they signed the first of several safety plans outlining services for the safety and protection of the Children.

Shortly thereafter, it was alleged that the Mother left Scott and Sally alone with her father (the Grandfather). The safety plan had specified the Children were not to be left alone with the Grandfather because of his health problems and history of marijuana use. At that time, the two older children were living with the Father and his girlfriend, and the Mother had supervised visits.

In July 2012, shortly after the Baby was born, the Department's caseworker visited the Mother and instructed her in safe care of the Baby. The Mother signed another safety plan to include protection of the Baby. Later that same month, the Father was arrested and charged with assaulting the Mother. After the Father was arrested, all three Children were placed in the Mother's care, with her mother (the Grandmother) supervising her contact with the Children.

At a visit in September, the caseworker found the Children at the Father's home unsupervised, and she was concerned for their safety. The Department also alleged the parents did not comply with the safety plans, particularly those services addressing domestic violence issues. On September 20, 2012, the parents signed an agreement for Parental Child Safety Placement voluntarily placing the Children with a friend, Melissa Green. The parents were permitted supervised visits with the Children until their service plans were completed. In November, the Father was arrested for possession of drug paraphernalia. In early December, the Department became concerned about other individuals who were staying in Green's home, and the Mother had also moved into the home.

On December 3, 2012, Green advised the caseworker that the Mother took the Children away from her home unsupervised and their whereabouts were unknown. The Department then petitioned for protection of the Children, seeking custody and termination of the parents' parental rights. After an emergency hearing, the court found an immediate danger to the health or safety of the Children and named the Department temporary managing conservator of the Children. The Children were missing for two days before the parents returned them to the Children's Protective Services (CPS) offices. By this time, the Father was no longer living with his girlfriend.

A full adversary hearing was set for December 13, 2012. The record reflects the Father was present at the adversary hearing, but the Mother was not. The court found there was a danger to the physical health and safety of the Children and signed an order naming the Department temporary managing conservator of the Children. The Children were placed in foster care, and the parents each were granted supervised visits at the CPS office.

On January 17, 2013, the court appointed CASA, an acronym for Court Appointed Special Advocates, as guardian ad litem for the Children. See Tex. Fam.Code § 107.031. A status hearing was held January 31, 2013. The Mother was present, but the Father was not. He was represented by counsel, however. The initial permanency hearing was held May 30, 2013. The Father was present, but the Mother was not. A permanency hearing was held on October 17, 2013. The parents were not present. Another permanency hearing was held January 30, 2014, and both parents were present.

The case was tried to the court on May 6–8, 2014. The Mother was not present at trial and her whereabouts were unknown. Two of the Department's caseworkers, the CASA volunteer, a mental health professional, a mental health caseworker, a police officer, and the Father testified at trial. At the conclusion of the trial, the court granted the Department's request for termination of both parents' parental rights. On May 16, 2014, the court signed a judgment reciting that both parents' parental rights were terminated based on findings that termination is in each of the Children's best interest and that the parents committed acts establishing the predicate termination grounds set out in subsections D, E, and O of Texas Family Code Section 161.001(1). Tex. Fam.Code §§ 161.001(1)(D), (E) & (O) ; 161.001(2). The Department was appointed sole managing conservator of the Children. Both parents filed notices of appeal.²

II. BURDEN OF PROOF AND STANDARDS OF REVIEW

Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985) ; In re D.R.A., 374 S.W.3d 528, 531 (Tex.App.-Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex.2002) (“Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.”).

Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. See Tex. Fam.Code § 161.001 ; In re J.F.C., 96 S.W.3d 256, 265–66 (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 C.M.C., 273 S.W.3d 862, 873 (Tex.App.-Houston [14th Dist.] 2008, no pet.).

Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Family Code ; and (2) termination is in the best interest of the child. Tex. Fam.Code §§ 161.001(1), (2) ; In re J.O.A., 283 S.W.3d 336, 344 (Tex.2009). Only one predicate finding under section 161.001 is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex.2003).

In reviewing the legal sufficiency of the evidence in a parental-rights termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344 ; In re J.F.C., 96 S.W.3d at 266. We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable factfinder 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 termination findings for factual sufficiency of the evidence, we consider and weigh all of the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. “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 fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. We give due deference to the factfinder'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). The factfinder 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 707, 712 (Tex.2003) (explaining that in a parental-rights termination case, an appellate court should not reweigh disputed evidence or evidence that depends on a witness's credibility).

III. ISSUES ON APPEAL

In his first issue, the Father argues that the trial court reversibly erred in failing to appoint an attorney to represent him until after the adversary hearing had been completed. In his second issue, the Father...