Southern v. Tex. Dep't of Family & Protective Servs.

S. S., Appellant v. Texas Department of Family and Protective Services, Appellee

NO. 03-17-00451-CV

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

December 8, 2017

FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY

NO. 15-17513, HONORABLE BENTON ESKEW, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from a final order, following a bench trial, terminating the parental rights of appellant S.S. In two issues on appeal, S.S. asserts that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in the best interest of the children. We will affirm the trial court's order.

BACKGROUND

The Texas Department of Family and Protective Services (the Department) brought suit to terminate the parental rights of S.S. and H.T. to their two children, fourteen-year-old S.K.S. and four-year-old V.S., based on allegations that the parents had, among other grounds for termination, engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children, specifically drug use and domestic violence. The case proceeded to a bench trial. The evidence considered by the trial court, which we discuss in more detail below, included the testimony of H.T., who discussed her history with S.S.; Tim Enevoldsen, a licensed professional counselor who had provided counseling services to S.K.S. while the case was ongoing; Danairy Nevarez, an investigator for Child Protective Services (CPS); and Dawn Daniel, a caseworker for the Department. During trial, S.S. and H.T. each executed an affidavit relinquishing their parental rights to the children. At the conclusion of trial, the trial court took judicial notice of the parents' affidavits, found that termination of S.S.'s and H.T.'s parental rights was in the best interest of the children, and ordered that the parental rights of S.S. and H.T. be terminated.¹ This appeal by S.S. followed.²

STANDARD OF REVIEW

"Because the natural right between a parent and his child is one of constitutional dimensions, termination proceedings must be strictly scrutinized."³ "In parental termination cases, due process requires application of the clear and convincing standard of proof."⁴ Clear and convincing evidence is a heightened burden of proof that requires "the measure or degree of proofthat 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."⁵

"In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true."⁶ "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so."⁷ "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible."⁸ However, "[t]his does not mean that a court must disregard all evidence that does not support the finding."⁹ The reviewing court must consider "undisputed facts that do not support the finding."¹⁰ "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder couldform a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient."¹¹

"[A] proper factual sufficiency review requires the court of appeals to determine whether 'the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.'"¹² "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."¹³ "And in making this determination, the reviewing court must undertake 'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'"¹⁴ However, "while parental rights are of a constitutional magnitude, they are not absolute."¹⁵ "Consequently, despite the heightened standard of review," the reviewing court "must nevertheless still provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses."¹⁶

ANALYSIS

In two issues on appeal, S.S. asserts that the evidence is legally and factually insufficient to support the district court's finding that termination of his parental rights was in the best interest of the children. When deciding the best-interest issue, we consider the well-established Holley v. Adams factors, which include the child's wishes, the child's emotional and physical needs now and in the future, emotional or physical danger to the child now and in the future, the parenting abilities of the party seeking custody, programs available to help that party, plans for the children by the party seeking custody, the stability of the proposed placement, the parent's conduct indicating that the parent-child relationship is improper, and any excuses for the parent's conduct.¹⁷ The Department need not prove all of the Holley factors as a "condition precedent" to termination, and the absence of some factors does not bar the factfinder from finding by clear and convincing evidence that termination is in a child's best interest.¹⁸ The need for permanence is the paramount consideration when determining the children's present and future physical and emotional needs.¹⁹ Moreover, a parent's statutorily offensive conduct is often intertwined with the best-interest determination.²⁰

As an initial matter, we observe that S.S. executed an affidavit relinquishing his parental rights, which this Court and others have held constitutes sufficient evidence, "in and of itself," that termination of parental rights is in the best interest of the children.²¹ Moreover, the Dallas Court of Appeals, in the case of In re J.H., has held that when an order terminating parental rights is based on the execution of an affidavit of relinquishment, the parent who executed the affidavit "cannot make any arguments on appeal except arguments relating to fraud, duress, or coercion in the execution of the affidavit."²² In this case, S.S. has made no such argument.

However, the San Antonio Court of Appeals, in the case of In re K.S.L., "decline[d] to follow" J.H. and held instead "that the State is not relieved of its burden to prove best interest merely because a parent has executed a voluntary and irrevocable affidavit of relinquishment of parental rights."²³ Similarly, other Texas appellate courts have held that "while the execution of an affidavit of relinquishment 'is relevant to the best interest inquiry[,] . . . such a relinquishment is notipso facto evidence that termination is in the child's best interest."²⁴ The Texas Supreme Court has granted review in K.S.L. to address these issues.²⁵

For purposes of this appeal, however, the above issues are not dispositive, because in this case, there is legally and factually sufficient evidence to support the trial court's best-interest finding beyond the affidavit of relinquishment alone. This evidence includes the testimony of H.T., the children's mother, who testified that at the end of her relationship with S.S., S.S. had "abandoned [her] and [their] kids," leaving them with "no money, no food or no way for [her] to get anywhere to get [] food." H.T. also testified that during their relationship, S.S. had hit her, "strangled" her, and pushed her to the ground on multiple occasions. During one such incident, H.T. recounted, S.S. had also assaulted his father when the father had attempted to intervene and prevent S.S. from strangling H.T.

H.T. further testified that the couple had a prior case with CPS in 2014 that arose "because of [their] drug use," which H.T. claimed had occurred throughout their fourteen-year relationship. Although the prior case had ended with the children being returned to them, H.T. testified that between the end of that case and the start of this case, she and S.S. had used methamphetamine and marihuana "[p]retty much every day" and that S.S. was the person who had provided the drugs. When the Department asked H.T. "who was taking care of the children whileyou and [S.S.] were doing methamphetamine," H.T. testified, "Well, no one, because, you know, we were doing our drugs."

Danairy Nevarez, the CPS investigator, testified that her investigation "revealed that there was in fact domestic violence" in the relationship between H.T. and S.S., based on the corroboration of other people who knew the couple. Nevarez also testified that S.S. was uncooperative during the investigation, had refused to meet with Nevarez in person, and had refused to take a drug test. According to Nevarez, when she had spoken with S.S. over the phone, "[h]e was uncooperative, he was really angry. He said he didn't have to do anything for us anymore, he had done it in the past and he did not have to do it again."

Nevarez further testified that she had interviewed the children during the investigation and that the older child, S.K.S., was aware of the domestic violence and drug use in his parents' home. Nevarez explained, "[S.K.S.] had recollections of the parents arguing, the drug use of the parents. He was really quiet at first, but after taking him to the final placement that I took him to, he started opening up, and he had extensive...