In re M.G.D.

• Decision Date: 29 May 2003
• Docket Number: No. 14-02-00583-CV.,14-02-00583-CV.
• Citation: 108 S.W.3d 508
• Parties: In the Interest of M.G.D. and B.L.D.
• Court: Texas Court of Appeals

108 S.W.3d 508

In the Interest of M.G.D. and B.L.D.

No. 14-02-00583-CV.

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

May 29, 2003.

Kelly McClendon, Angleton, for Appellants.

Shannon Tigner, for Tisha Dewitt.

Panel consists of Chief Justice BRISTER and Justices HUDSON and FROST.

MAJORITY OPINION

SCOTT BRISTER, Chief Justice.

Appellant Brazoria County Children's Protective Services, Inc. ("CPS") sought termination of T.D.'s parental rights to her two children, M.G.D. and B.L.D., ages six and seven. After a five-day trial, the jury found termination would be in the children's best interest. The trial judge disagreed and granted judgment notwithstanding the verdict, ordering the children left in foster homes until T.D. might be ready to parent them at some time in the future. CPS appeals the trial court's order; T.D cross-appeals challenging the factual sufficiency of the jury's verdict. We reverse and render judgment in accordance with the jury's verdict.

The Evidence

T.D. grew up in circumstances where physical and sexual abuse, drug addiction, and criminal problems were the norm. Her mother abused drugs and alcohol and lived with a series of abusive boyfriends. Her father (by her own admission) was normally either in prison or away driving trucks. As a small child, she was abused by several of her mother's boyfriends, and spent several months in foster care.

At age 13, T.D.'s mother expelled her from home, the first of many times. On her own, T.D. established a domestic pattern very much like the one in which she had been raised. She had her first child when she was 15, her second at 16. By the time of her first arrest (for aggravated assault in 1997), she was addicted to cocaine, had lived with a series of violent and abusive boyfriends, and supported herself by peddling narcotics.

The conditions in which she raised her toddlers were deplorable. An initial investigation in Galveston found dog droppings throughout her house and the children infested with lice. On a second visit, the children (then ages three and four) were at home unsupervised. After she agreed to a family service plan that required her (among other things) to notify the local authorities of any plans to move, the children were returned to her custody. Nevertheless, she left the county without notifying anyone, thus forestalling any further investigation or intervention.

Sometime later, Brazoria County police responded to a report of neglect at T.D.'s new home. They found her children without food, infested with lice, and surrounded by filthy conditions throughout the home. Rotten and inedible food filled the refrigerator, sanitary napkins and other trash filled the bathtub, and soiled sheets were on in the children's beds. Large amounts of cocaine, marijuana, and hashish lay throughout the home within easy reach of the children.

From 1999 until August of 2000, T.D. served time in prison on narcotics charges and for endangerment of her children. She did not see the children, made no phone calls to them, and sent them only a handful of letters. Shortly before her release, CPS notified her of the filing of parental termination proceedings.

Following her release, T.D. resided in three different places, twice with convicted felons (a boyfriend and a cousin). Finally, she moved to a location several hours away from her children to be with her occasional boyfriend, and to get a job in construction. She admitted this boyfriend had physically abused her before she went to prison, but maintained there had only been verbal abuse since her release. At CPS's insistence, she left this boyfriend (as she had several times before) six months prior to trial.

By contrast, it was uncontradicted the children had settled into a satisfactory foster family after a succession of false starts. They were removed from their first home after several incidents of their inappropriate sexual behavior. When termination papers were filed, they were removed from the second foster home in order to place them with a family interested in adopting them. All witnesses agreed the children were now in a stable home in which their emotional and physical needs were being met. Their current foster mother testified they were happy, healthy, and finally making great improvement in a family that wanted to adopt them.

Legal Sufficiency

The trial court disregarded the jury's verdict that termination was in the best interest of the children.¹ This was proper only if no evidence supports the jury's finding.² Because termination of parental rights must be based upon clear and convincing evidence,³ the standard is whether no reasonable juror could form a firm belief or conviction that termination was in their best interest.⁴ When evidence is disputed, we consider only the evidence supporting the jury verdict if a reasonable juror could have disbelieved the contrary evidence.⁵

No one disputes there was clear and convincing evidence that T.D. committed several of the statutory grounds that justify termination.⁶ Proof of such acts can serve as evidence of a child's best interest.⁷ T.D.'s life of narcotics, crime, and abusive relationships placed the children in harm's way from the day they were born until the day they left her. This evidence also supports the jury's finding as to the children's best interest.⁸

By her own admission at trial, T.D. did not want the children living with her, as she was "not ready." She had moved frequently, and anticipated another move in the near future. She admitted the travel trailer in which she lived was inappropriate, but did not indicate how she might afford anything better. She had few ties with any community or support groups: she had quit attending AA meetings, had no AA sponsor, and attended no church.

Nor did she have any family members who could help and support her. Her mother died while she was in prison; her father got out of prison shortly before her trial; her only brother remained in prison; she did not know where her only sister was. CPS tried to place the children with her aunt, but rejected the idea upon finding the aunt's boyfriend was another convicted felon. At trial, T.D. mentioned a cousin in Galveston who might help her, but admitted she had not asked, and that her cousin already had four children of her own.

In sum, T.D. was in no position to begin parenting her children, and was unable to suggest anyone (other than CPS) who was. For the foreseeable future, her basic plan for the children was that someone else should keep raising them for her.

But there was testimony that leaving the children in foster homes (which the trial court's order did) would deprive them of the permanence and stability they needed. While T.D. pleaded for more time to ready herself for parenting, there was no indication how long that might be or what effect this would have on the children's development in the interim.

In her brief, T.D. makes two arguments in support of the trial court's judgment. First, she points out only two witnesses testified directly regarding the children's best interest. One of them (the guardian ad litem) opined that termination was not in their best interest. The other (a CPS caseworker) testified to the contrary, but admitted she had little personal contact with T.D., had never visited T.D.'s home, and had not been involved in the case for over a year. Thus, T.D. says there was no evidence to support the jury's finding.

It is true CPS presented few fact and expert witnesses — its designation of other witnesses was late, and T.D. successfully moved to exclude them. But nothing in this area of the law limits jurors to the opinions of experts. Surely, they may apply their own experience and common sense to the facts to draw conclusions regarding a child's best interest. Expert testimony may well be helpful in termination cases, but there is no reason to think jurors are unqualified to form their own opinions about whether someone is likely to provide a stable and healthy home.

Second, T.D. is critical of CPS's efforts to help her be a better parent. She points out the agency decided to seek termination while she was still in prison, and successfully prevented her from seeing her children for four months after her release. The guardian ad litem gave his opinion that CPS personnel had not given T.D. "a fair shot" at regaining her children.

But this ignores the efforts of various agencies working with T.D. before her incarceration, none of which met with any success. Moreover, everyone agrees the events leading up to her incarceration justified CPS's decision to seek termination. Once that decision was made, it is not clear why the agency should have poured greater resources into bringing about the opposite result.

Additionally, resolving disputed facts (as we must) against T.D., her difficulties since release from prison are not so much CPS's fault as her own. While she blamed distance and car trouble for her occasional absences from therapy sessions and visitation with the children, she admitted it was her own decision to move so far away. While she blamed a lack of funds for the infrequency of her calls to the children or cards or gifts on birthdays and holidays, she admitted spending money regularly on cigarettes. And while she blamed her lack of emotional connection with the children during recent visitations on the less-thanideal circumstances in which they occurred, reasonable jurors could have believed her past behavior and long absence from them played at least as important a role.

Indeed, viewed from the proper perspective (in favor of the jury's verdict), much of T.D.'s recent improvements came from CPS's insistence rather than her own initiative. She complains the agency should have spent more time and money teaching her how to be a better parent; reasonable jurors could have decided the children's best interest lay with someone who did not have to be told.

Finding that reasonable jurors could...