In re M.L.L.

573 S.W.3d 353

In the INTEREST OF M.L.L., a Child

No. 08-18-00144-CV

Court of Appeals of Texas, El Paso.

February 8, 2019

ATTORNEY FOR APPELLEE: Hon. Rebecca L. Safavi, Office of General Counsel, TDFPS, MC:Y-956, 2401 Ridgepoint Drive, Bldg H-2, Austin, TX 78754.

ATTORNEY AD LITEM: Hon. Larry Myrick, Law Offices of Larry Myrick, Odessa Executive Center, 119 West 4th, Suite 402, Odessa, TX 79761.

ATTORNEY FOR APPELLANT: Hon. Lilly A. Plummer, Law Office of Lilly A. Plummer, PC, 620 N. Grant, Suite 510, P. O. Box 12374, Odessa, TX 79761.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice This appeal is from a judgment terminating the parental rights of Appellant, G.N.R., to her son, M.L.L. We affirm.

PROCEDURAL AND FACTUAL SUMMARY

On April 3, 2017, the Texas Department of Family and Protective Services received a neglectful supervision report pertaining to M.L.L. (Mark) and his mother, G.N.R. (Mother).¹ The intake indicated that Mark, who was thirteen years of age, had missed a significant amount of school and was small for his age. The report also reflected that Mother might have a mental disorder and was using methamphetamine. Mother had been seen hiding underneath the trailer of her boyfriend, "Rob." The CPS investigator assigned to the case, Susana Carrasco, knew from a prior intake report in 2016 that there had been domestic violence between Mother and Rob, and Mother was not supposed to be living with him.

Carrasco spoke with Mother as part of her investigation. Mother denied living underneath Rob’s trailer, but said she and Mark were living with Rob. Mother and Mark had moved frequently, and they had also been living with two of Mother’s other boyfriends. Mother admitted that there had been domestic violence in the past but claimed that her relationship with Rob had improved. Carrasco later learned that the Police Department had gone to the trailer twenty-three times between January 1, 2017 and April 1, 2017 on calls related to Mother and Rob. Additionally, the police were dispatched to the home on April 30, 2017 because Mother and Rob were fighting.

Carrasco’s investigation also showed that Mother had failed to obtain medical treatment for Mark to treat undescended testicles, a serious medical condition. Consequently, on April 20, 2017, the Department filed a petition for protection of a child, for conservatorship, and for termination of Mother’s parental rights.² Following a hearing on May 25, 2017, the trial court signed an order appointing the Department as the temporary managing conservator and placing Mark with L.D. (Laney).³

On April 26, 2018, an associate judge heard the case and determined that Mother’s parental rights should be terminated. Mother exercised her right to a de novo hearing. The Department filed a written request for the District Court to consider the entire record of the hearing conducted before the associate judge on April 26, 2018. See TEX.FAM.CODE ANN. § 201.015(c) ("The referring court may also consider the record from the hearing before the associate judge."). The District Court considered the prior record but also heard evidence at the hearings conducted on July 24, 2018 and July 27, 2018.

The evidence at trial showed that Mark was exposed to significant domestic violence in Rob’s home and at the hands of Mother. In 2016, Mother was arrested for assaulting Rob, but Mother was more typically the victim of these incidents. Mother testified that Rob had broken her nose and tailbone, and he had broken her arm twice. Rob punched Mother and kicked her while wearing steel-toe boots. Mother also claimed that Rob had cut her throat. Rob struck Mother with the butt of a shotgun on one occasion and the gun went off striking the front door. Mark was seated next to her when this happened. In a separate incident, Mother and Mark were in a car when Rob fired a shotgun and broke out the car windows.⁴ According to Mother, they often had to leave Rob’s home and Mark missed school because of the domestic violence incidents. Mother also claimed that she had attempted to leave Rob several times, but he would force her to return to his home.

Mark confided to Teresa Valero, a licensed professional counselor, that he had seen Rob hit Mother and he was afraid of both of them. Mark also told Valero that the violence between Mother and Rob was "ongoing" and was "just how they lived." Mark’s exposure to domestic violence was not limited to being an onlooker. Mark told Valero that Mother, who he described as being quick to anger, would grab him by the back of his neck with both hands and throw him into his bedroom while calling him a "crybaby" and "little bitch." Mark was sometimes unable to articulate his feelings about Mother during the counseling sessions because he was so afraid of her. He told Valero that he does not want to be around Mother at all and he believes that if he returns to Mother she will hurt him again. Valero testified that Mark is "very afraid of [Mother]" and he does not have any attachment to her. Valero observed that Mark had improved significantly and continued to thrive with his foster family, and he repeatedly told Valero that he wanted to stay with them. Valero recommended that Mother’s parental rights be terminated to prevent further harm to Mark and to allow him to thrive in his current placement.

The trial court also heard evidence that Mother had failed to obtain medical care for Mark to address a serious medical condition which required surgery. In 2014, Amanda Darling, a nurse practitioner, discovered during a routine physical examination that Mark had undescended testicles. Mother was present in the room during the examination and Darling informed Mother about her findings. Darling explained that the testes were inside of the abdomen and would be damaged if Mark did not receive treatment. She also explained to Mother that the condition had to be treated or Mark would not have the testosterone necessary for puberty and masculine development. Darling gave Mother a referral to Dr. Wiehle, a urologist in Odessa, who determined that the testes were located inside of the inguinal canal and recommended surgery to correct the condition. According to Darling, surgery is the only effective treatment for Mark’s condition. Mother did not follow through with the recommended surgery, and she later told Darling that she did not want to take Mark back to Dr. Wiehle. Consequently, the Clinic referred Mother to a children’s hospital in the Fort Worth area to address Mark’s condition, but Mother did not take him. The clinic made a second referral for Mark in 2016, but Mother did not keep the appointment. Mother later picked up Mark’s records because she did not want to return to the clinic. As a result, the clinic made a report of medical neglect to Child Protective Services. The surgery was finally done on July 7, 2017 after Mother turned over Mark to Child Protective Services. Mark’s testosterone levels are still extremely low, but he is receiving hormone therapy. In Darling’s opinion, it was medical neglect for Mark to not have the surgery performed when it was first recommended in 2014.

The District Court found that the Department had proven by clear and convincing evidence that Mother had: (1) knowingly placed or knowingly allowed Mark to remain in conditions or surroundings which endangered the physical or emotional well-being of the child ( Section 161.001 (b)(l)(D), Texas Family Code ); and (2) engaged in conduct or knowingly placed Mark with persons who engaged in conduct which endangered the physical or emotional well-being of the child ( Section 161.001(b)(l)(E), Texas Family Code ). The court also found by clear and convincing evidence that termination of Mother’s parental rights was in Mark’s best interest. The court appointed the Department as the permanent managing conservator of the child.

TERMINATION GROUNDS AND BEST INTEREST UNDER SECTION 161.001

Mother raises three issues challenging the legal and factual sufficiency of the evidence supporting the trial court’s findings. In Issues One and Two, Mother argues that the evidence is legally and factually insufficient to support the predicate termination grounds found by the trial court under Section 161.001(b)(1)(D) and (E). In Issue Three, she challenges the legal and factual sufficiency of the evidence supporting the best interest finding made under Section 161.001(b)(2).

Parental rights may be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001. Under this provision, the petitioner must (1) establish one or more of the statutory acts or omissions enumerated as grounds for termination, and (2) prove that termination is in the best interest of the children. See id. Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Department of Human Services v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ; In the Interest of A.B.B. , 482 S.W.3d 135, 138 (Tex.App.--El Paso 2015, pet. dism'd w.o.j.). Only one predicate finding under Section 161.001(b)(1) 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). We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights as well as the finding of best interest. J.S. v. Texas Department of Family and Protective Services , 511 S.W.3d 145, 159 (Tex.App.--El Paso 2014, no pet.).

Standards of Review

When reviewing the legal sufficiency of the evidence in a termination case, we consider all of the evidence in the light most favorable to the trial court’s finding, "to determine whether a reasonable trier of fact could have formed a firm belief...