Taylor v. Dept. of Protective & Reg. Svcs.

160 S.W.3d 641

Debra Faye TAYLOR, Devin Wesley Costine, and Lori Carpenter, Appellants, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

No. 03-03-00467-CV.

Court of Appeals of Texas, Austin.

March 10, 2005.

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Bobby Dale Barina, Killeen, for Devin Wesley Costine.

Pauline Wiseman Stevens, Killeen, for Lori Carpenter.

Thomas J. Baker, Killeen, for Debra Faye Taylor.

Sarah Regina Guidry, TDPRS Supervising Attorney, Field Operations Special Litigation, Houston, Richard E. Ward, Assistant County Attorney, Belton, Appellee.

Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.

OPINION

BOB PEMBERTON, Justice.

This is an appeal from a final decree terminating the parental rights of a child's biological parents, denying conservatorship to the paternal grandmother, and awarding sole conservatorship to the Texas Department of Protective and Regulatory Services. Lori Carpenter and Devin Wesley Costine are the biological parents of D.A.C., an infant girl, and Debra Faye Taylor is her paternal grandmother. Currently, D.A.C. is under the foster care of Jose and Susy Ramirez, who are prepared to adopt her. Carpenter, Costine and Taylor each present separate issues on appeal. We will affirm.

BACKGROUND

The trial record contains extensive testimony concerning the circumstances leading up to the termination of Carpenter's and Costine's parental rights. It is ultimately unnecessary to reproduce many of these personal facts due to the procedural posture of the appeal, but we note them to the extent needed to place the present dispute in context.

Appellant Lori Carpenter had been on her own since age thirteen, living in a succession of locations and households. Between 1998 and 2000, she lived with appellant Devin Costine, then her boyfriend, and the couple resided off and on with Costine's mother, appellant/intervenor Debra Taylor. During this period, the teenagers conceived and gave birth to two children, the first in 1998 and the second, D.A.C., the child at issue in this appeal, in 2000. The record indicates that the Department took custody of their first child after an incident, sometime before D.A.C. was born, in which the first child had nearly died from an asthma attack and the treating hospital referred Carpenter to the Department on suspicion of abuse or neglect.¹ Both Carpenter's and Costine's parental rights to their first child were ultimately terminated in mid-2002.

In light of these circumstances and others, the Department closely monitored D.A.C.'s welfare from the date of her birth. It took temporary custody of D.A.C. roughly one week later, after Carpenter left the child with Carpenter's father, whom the Department believed presented a risk of abuse. Efforts to reunite Carpenter and D.A.C. in a residential treatment setting failed; after Carpenter threatened to leave the facility with D.A.C., the Department took custody of the child and initiated termination proceedings against Carpenter.

Costine initially was not believed to be D.A.C.'s father. He had been incarcerated since 2001, after his probation for a 2001 aggravated robbery was revoked following an episode later that year in which he beat Carpenter and allegedly pointed a gun at her.² By the time D.A.C. was born a few months later, Carpenter was living with a new boyfriend, who took responsibility for the child, although Carpenter believed that a third man was most likely the biological father.

The trial court ordered paternity testing of each prospective father and, in late 2002, Costine was identified as D.A.C.'s father. The Department then initiated termination proceedings against Costine. After the revelation that Costine had fathered D.A.C., Taylor, Costine's mother, intervened in the termination proceeding seeking to be named sole managing conservator.

The case was tried to a jury, which heard evidence regarding the removal of D.A.C. from Carpenter's custody and the fitness of Carpenter, Costine and Taylor as parents. Of relevance here, the Department elicited testimony that Taylor has used illegal drugs from at least the 1980s until as recently as two years prior to trial and that she had two drug-related criminal convictions, one of which was a felony. The Department also questioned Taylor's parenting skills, pointing out the extensive criminal record of her son, Costine, and suggesting that Taylor allowed the teenaged Carpenter and Costine to have a sexual relationship while living in her home, resulting in the conception of two children.

While acknowledging that she had made past mistakes, Taylor insisted that she had turned her life around during her two-and-a-half year relationship with Gary Russell, with whom she proposed to raise the child. Russell was credited with being a stabilizing influence on Taylor's life, and several positive character witnesses testified on his behalf and that of Taylor. Taylor also insisted that D.A.C. should be raised by family members, especially because she and the child were of Native American descent.³ Taylor and Russell urged that they loved the child, had the financial means to care for her, and had an extensive network of family and friends upon which they could rely to assist them in caring for the child.

D.A.C.'s foster parents, Jose and Susy Ramirez, both testified that they wanted to adopt the child. At time of trial, the couple had been married thirty-two years and had three children ages sixteen, seventeen, and nineteen. Their oldest son attended Central Texas College and worked at Home Depot; the two younger children were in high school. Mr. Ramirez testified that none of their children had ever been in trouble or used drugs. The Ramirezes both testified that their children got along very well with D.A.C. and loved her. Mrs. Ramirez testified that they were teaching D.A.C. to speak both Spanish and English, but Spanish was the primary language spoken in the home. There was evidence that D.A.C. had Hispanic ancestry.

The Ramirezes said that they had been foster parents since 1997 and estimated that a total of thirty children had been placed in their home. They had never adopted a foster child. D.A.C. was eighteen months old at the time of trial and she had been in the Ramirezes' home since she was a young infant. D.A.C. called Mrs. Ramirez "mama" and Mr. Ramirez "poppy"; she knew no one else as her parents. The Ramirezes both testified that they loved D.A.C. very much and that she was already a part of their family. Mrs. Ramirez testified that the couple began wanting to adopt D.A.C. soon after she was placed in their home.

The jury found that the parental rights of both Carpenter and Costine should be terminated and that managing conservatorship should be awarded to the Department alone and not to Taylor. The district court rendered judgment on the verdict. Carpenter, Costine, and Taylor each appealed.

DISCUSSION

Termination of parental rights

Standards for terminating the parent-child relationship

An individual's parental rights may be terminated only if the state proves and the trial court finds by clear and convincing evidence (1) that the parent engaged in conduct constituting at least one of the statutory termination grounds enumerated in section 161.001(1) of the family code; and (2) termination is in the child's best interest. Tex. Fam.Code Ann. § 161.001 (West 2002); In re C.H., 89 S.W.3d 17, 23 (Tex.2002). Some of the common factors that courts use to evaluate the best interests of a child in a given case are: (1) the emotional and physical needs of the child now and in the future; (2) any emotional and physical danger to the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the programs available to assist those individuals to promote the best interest of the child; (5) the plans for the child by those individuals or by the agency seeking custody; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); Leal v. Texas Dept. of Protective & Regulatory Servs., 25 S.W.3d 315, 321 (Tex.App.-Austin 2000, no pet.). This is not an exhaustive list and other factors also may be considered where appropriate. Holley, 544 S.W.2d at 372.

Carpenter's appeal

Carpenter is represented on appeal by court-appointed counsel who has filed an Anders brief on her behalf concluding that, after thorough review of the record, her appeal of the termination of her parental rights is frivolous and without merit.⁴ The brief presents a professional evaluation of the record demonstrating why there are no arguable grounds for reversal. A copy of this brief was delivered to Carpenter, who was notified of her right to seek other counsel or file a pro se brief, which she has not done. We have thoroughly reviewed the record and agree with counsel's assessment that Carpenter's appeal is frivolous and without merit.⁵ We affirm the trial court's final decree terminating Carpenter's parental rights and grant her counsel's motion to withdraw.

Costine's appeal

Costine brings a single issue complaining only that the trial court erred in submitting the controlling issue of whether his parental rights should be terminated in a single broad-form question. The question stated simply: "Should the parent-child relationship between Devin Wesley Costine and the child ... be terminated?" and asked the jury to answer "yes" or "no." This question was preceded by an instruction that the jury could terminate Costine's parental rights if it found by clear and convincing evidence conduct constituting the following statutory termination grounds:

(1) that the parent has:

....

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct...