Opinion=20
issued June 26, 2008
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-07-00160-CV
__________
IN THE INTEREST OF A.A.A.=20
On Appeal from the 314th =
District=20
Court
Harris County, =
Texas
Trial Court Cause No. 2006-00760J
O P I N I O N
&nbs=
p;We withdraw our opinion and judgment issued January 24, 2008 =
and issue=20
this one in its stead. We grant=20
the Texas Department of Family and Protective Services=E2=80=99s =
(=E2=80=9CDFPS=E2=80=9D)=20
motion for=20
rehearing.
=
In=20
this accelerated appeal, Shde Aza=20
Hurst challenges the trial court=E2=80=99s decree =
terminating her parental=20
rights to her minor child, A.A.A.,=20
and naming DFPS as A.A.A.=E2=80=99s sole managing conservator. In =
five issues,=20
Hurst argues that the evidence is legally and factually =
insufficient to=20
support the trial court=E2=80=99s findings under Section 161.001.=20
Tex. Fam. Code=20
Ann.=20
=C2=A7 161.001 (Vernon =
Supp.=20
2007). In her sixth issue, Hurst asserts =
that, if we=20
reverse the trial court=E2=80=99s termination of her parental rights, we should =
also=20
reverse the trial court=E2=80=99s appointment of DFPS as sole =
managing=20
conservator. We affirm.
=
Paul=20
Alexander, whose parental rights were also terminated in the =
decree, filed=20
a notice of appeal, but did not file a brief or a motion to extend =
time to=20
file a brief, and he has not reasonably explained his failure to =
file a=20
brief. Accordingly, we=20
dismiss=20
Alexander=E2=80=99s appeal for want of prosecution. =
See Tex. R. App. P.=20
38.8(a)(1).
Background
<=
/SPAN>A.A.A.=20
was born April 13, 2005. During the summer of 2005, her mother, =
Shde=20
Hurst, was living in Louisiana with her boyfriend, Paul Alexander. =
Alexander claims that he is A.A.A.=E2=80=99s father, although DNA test =
results were=20
not available at trial. In September 2005, Hurst ended her=20
relationship with Alexander, after living with him for six months, =
and she=20
and A.A.A. moved to a Houston shelter. After arriving at the =
shelter,=20
Hurst worked at McDonald=E2=80=99s for about one month and also =
began attending=20
night school.
<=
/SPAN>On=20
January 24, 2006, Hurst left eight-month-old A.A.A. at the shelter =
and=20
went to Wal-Mart. While at Wal-Mart, Hurst was arrested for =
shoplifting=20
and spent two days in a Harris County jail. Hurst claims that she =
was=20
shoplifting cough medicine because A.A.A. was sick. On January 25, when Hurst did not return =
to the=20
shelter, DFPS received a referral of neglectful supervision of A.A.A. The next =
of kin=20
was supposed to have picked up A.A.A. on January 24, but never =
arrived.=20
When DFPS called =
the=20
contacts on Hurst=E2=80=99s emergency list, the first contact =
indicated that she=20
could not care for the child, and the second contact had a =
disconnected=20
number. A.A.A. was then taken into DFPS care. On January 26, DFPS =
filed a=20
petition for protection of a child, conservatorship, and =
termination of=20
the parent-child relationship, and the trial court issued a =
temporary=20
order naming DFPS as A.A.A.=E2=80=99s temporary sole managing=20
conservator. DFPS =
initially=20
placed A.A.A. in foster care, but in May 2006, A.A.A. was moved to =
Hurst=E2=80=99s=20
relative. This relative has expressed an interest in adopting=20
A.A.A.
=
Hurst=20
was released from county jail on January 25 at 5:55 p.m. She =
testified=20
that, by the time she was released, DFPS had already had =
possession of=20
A.A.A. for one day. She also stated that DFPS told her that A.A.A. =
would=20
not be returned until she completed the required=20
process. After being released, Hurst moved to =
another=20
shelter in Pasadena, Texas, for a few weeks and then moved in with =
a=20
friend in Houston until sometime in June. Hurst claimed that she worked at =
McDonald=E2=80=99s during=20
this period, although A.A.A.=E2=80=99s guardian ad litem testified that Hurst =
told her she=20
had been working at the McDonald=E2=80=99s for about three weeks =
as of June 1.=20
<=
/SPAN>In=20
June, Hurst moved =
back to=20
Louisiana where she moved back and forth between Alexander and her =
sick=20
mother, whom she assisted. Hurst stated that, once back in=20
Louisiana, she babysat two =
children,=20
ages seven and nine, for around seven months and was making about =
$300=20
every two weeks. A.A.A. remained in Texas with Hurst=E2=80=99s=20
relative. At the time of =
trial, Hurst=20
testified that she was currently living with Alexander at an =
apartment in=20
Lake Charles, where she planned on staying and where she has =
arranged for=20
daycare for A.A.A. She also stated that she was working at =
a gas=20
station making $7.25 an hour.
<=
/SPAN>A family service plan was implemented, =
outlining=20
the services Hurst was to complete in order to be reunited with =
A.A.A.=20
Hurst signed this plan on March 9, and, on March 23, the trial =
court=20
ordered Hurst to comply with the plan. Brandi Sewell-Hall, the =
appointed=20
caseworker on A.A.A.=E2=80=99s case from January 2006 until =
December=20
2006, testified that, =
during her=20
time on the case, DFPS tried to help Hurst to complete her =
services but=20
Hurst failed to complete any of the services except for a =
psychological=20
evaluation. Hall also stated that, during the year she was the =
assigned=20
caseworker, Hurst only visited A.A.A. two times, even though she =
could=20
have visited twice a month while A.A.A. was in foster care, and =
more often=20
once Hurst=E2=80=99s relative had custody of A.A.A. Hurst =
testified that she left=20
a message on Hall=E2=80=99s answering machine indicating that she =
was moving to=20
Louisiana. Hall, however, stated that she does not remember such a =
message.
=
Elizabeth=20
Bolling, the assigned caseworker from January 19, 2007 until the =
time of=20
trial, testified that Hurst had only seen A.A.A. once during that=20
time. Bolling =
stated that=20
it is in A.A.A.=E2=80=99s best interest to remain with =
Hurst=E2=80=99s relative. A.A.A.=E2=80=99s=20
guardian ad litem testified that A.A.A. had bonded with =
Hurst=E2=80=99s relative=20
and was thriving in her current environment.
=
Hurst=20
testified that her failure to comply with the family =
service plan=20
was due to transportation problems and the unavailability of =
parenting=20
classes, although she testified at trial that she made a choice =
not to=20
catch the bus to attend the parenting classes. She also testified =
that she=20
completed the parenting classes days before trial and just needed =
to pick=20
up the certificate.
<=
/SPAN>Hurst=20
testified that she =
visited A.A.A.=20
six times before she moved back to Louisiana. She also stated that =
she=20
called A.A.A. every day after she moved to Louisiana. Hurst =
claimed=20
that she did not visit A.A.A. more frequently because she believed =
she=20
could only visit A.A.A. at the DFPS office. Bolling confirmed that =
Hurst had stated that she =
believed all=20
visits with A.A.A. were to be at the DFPS =
office.=20
While Hurst admitted that she did not =
provide=20
financial support for A.A.A. after she was taken into DFPS care, =
Hurst testified that she =
brought=20
clothing and shoes to the DFPS office approximately six=20
times.
<=
/SPAN>DFPS=20
petitioned to have Hurst=E2=80=99s parental rights terminated on =
January 26, 2006.=20
Permanency hearings occurred on July 27 and November 14, 2006, and =
on=20
February 6, 2007. A bench trial occurred on DFPS=E2=80=99s =
parental-termination=20
suit on February 6, 2007, and, on February 27, the trial court =
signed a=20
judgment terminating Hurst=E2=80=99s and Alexander=E2=80=99s =
parent-child relationship=20
with A.A.A. and appointing DFPS as A.A.A.=E2=80=99s sole managing =
conservator.=20
Sufficiency
<=
/SPAN>In=20
issues one through five, Hurst=20
challenges the trial court=E2=80=99s termination of her parental =
rights because=20
the evidence is legally and factually insufficient to support the =
trial=20
court=E2=80=99s finding that she engaged in conduct set out as =
grounds for=20
termination pursuant to Texas Family Code subsections =
161.001(1)(E), (F),=20
(N), and (O) and the trial court=E2=80=99s finding that =
termination was in the best interest of the child =
pursuant to=20
subsection 161.001(2).
Standard of =
Review
=
Because parental-rights termination=20
=E2=80=9Cis complete, =
final,=20
irrevocable, and divests for all time that natural right . . . [,] =
the=20
evidence in support of termination must be clear and convincing =
before a=20
court may involuntarily terminate a parent=E2=80=99s =
rights.=E2=80=9D =
Holick v.=20
Smith, 685 S.W.2d 18, 20 =
(Tex.=20
1985) =
(citing=20
Santosky v.=20
Kramer, 455 U.S.=20
745, 747, 102 S. Ct. 1388, 1391=20
(1982); Richardson v.=20
Green, 677 S.W.2d 497, =
500 (Tex.=20
1984)). =E2=80=9C=E2=80=98Clear and convincing =
evidence=E2=80=99 means the measure=20
or degree of proof that will produce in the mind of the trier of =
fact a=20
firm belief or conviction as to the truth of the allegations =
sought to be=20
established.=E2=80=9D Tex. Fam. Code.=20
Ann. =C2=A7 =
101.007 (Vernon=20
2002). This heightened =
burden of=20
proof results in a heightened standard of review. =
<=
/SPAN>When determining legal sufficiency, we =
review =E2=80=9Call=20
the evidence in the light most favorable to the finding to determine =
whether a=20
reasonable trier of fact could have formed a firm belief or =
conviction=20
that its finding was true.=E2=80=9D =
In re =
J.F.C., 96=20
S.W.3d 256, 266 (Tex. 2002). To give =
appropriate=20
deference to the factfinder=E2=80=99s conclusions, we must assume =
that the=20
factfinder resolved disputed facts in favor of its finding if a =
reasonable=20
factfinder could do so. Id. We disregard all =
evidence=20
that a reasonable factfinder could have disbelieved or found to =
have been=20
incredible. Id. This does not =
mean that we=20
must disregard all evidence that does not support the finding.=20
Id. Disregarding =
undisputed=20
facts that do not support the finding could skew the analysis of =
whether=20
there is clear and convincing evidence. Id. Therefore, in =
conducting a=20
legal-sufficiency review in a parental-termination case, we must =
consider=20
all of the evidence, not only that which favors the verdict. =
See City=20
of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).=20
<=
/SPAN>In determining factual sufficiency under =
the clear and =
convincing=20
burden, we must consider whether the evidence is sufficient to =
produce in=20
the mind of the factfinder a firm belief or conviction as to the =
truth of=20
the allegation sought to be established. In re C.H., 89 =
S.W.3d 17,=20
26 (Tex. 2002).=20
We consider whether disputed evidence is such that a reasonable =
factfinder=20
could not have resolved that disputed evidence in favor of its =
finding.=20
J.F.C.,=20
96 S.W.3d at 266. =
=E2=80=9CIf, in light of =
the entire=20
record, the disputed evidence that a reasonable factfinder could =
not have=20
credited in favor of the finding is so significant that a =
factfinder could=20
not reasonably have formed a firm belief or conviction, then the =
evidence=20
is factually insufficient.=E2=80=9D =
Id.
=
The natural rights that exist between =
parents and=20
their children are of constitutional dimension. Holick, 685 =
S.W.2d=20
at 20. Therefore, termination proceedings should be strictly =
scrutinized,=20
and the involuntary termination statutes should be strictly =
construed in=20
favor of the parent. Id. at 20=E2=80=9321. However, =
=E2=80=9C[j]ust as it is=20
imperative for courts to recognize the constitutional =
underpinnings of the=20
parent-child relationship, it is also essential that emotional and =
physical interests of the child not be sacrificed merely to preserve that right.=E2=80=9D =
C.H., 89=20
S.W.3d at 26.
=
For=20
parental rights to be involuntarily terminated, it must be found =
by clear=20
and convincing evidence that the parent engaged in conduct set out =
in=20
subsection 161.001(1) and that termination would be in the =
child=E2=80=99s best=20
interest pursuant to subsection 161.001(2). Tex. Fam. Code=20
Ann.=20
=C2=A7 161.001 (Vernon Supp. 2007). =
Failure to=20
Comply with Court Order
&nbs=
p;In=20
her fourth issue, Hurst asserts that the evidence is legally and =
factually=20
insufficient to support the trial court=E2=80=99s finding that =
Hurst engaged in=20
conduct pursuant to subsection 161.001(1)(O). To terminate parental =
rights based=20
on subsection 161.001(1)(O), a =
trial=20
court must find by clear and convincing evidence that the parent=20
failed to comply =
with the=20
provisions of a court order that specifically established the =
actions=20
necessary for the parent to obtain the return of the child who has =
been in=20
the permanent or temporary managing conservatorship of the =
Department of=20
Protective and Regulatory Services=20
for not less than nine months as a result of the child=E2=80=99s =
removal from the=20
parent under Chapter 262 ![3DFootnote](3D"")
for the abuse or neglect of =
the=20
child.
Tex. Fam. Code=20
Ann.=20
=C2=A7 161.001(1)(O) (Vernon Supp. 2007).
<=
/SPAN>Hurst=20
does not dispute that A.A.A. was in DFPS custody for at least nine =
months=20
or that she did not comply with all the requirements of her family =
service=20
plan. Instead, she argues that DFPS did not meet its burden of =
proof under=20
subsection 161.001(1)(O) because A.A.A. was not removed from Hurst =
as a=20
result of abuse or neglect, but solely because she had been =
arrested and=20
was unable to return to A.A.A. at the shelter.
=
=20
<=
/SPAN>DFPS=20
counters by asserting that the Legislature did not intend to =
require a=20
finding of abuse or neglect of the child under subsection =
161.001(1)(O).=20
Instead, according to DFPS, =
this=20
language merely clarifies =
that=20
removal under this subsection is proper if the child was removed =
for=20
any reason under Chapter 262.=20
DFPS also argues that the =
Texas=20
Supreme Court has shown that proof of abuse or neglect is not =
required for=20
a finding pursuant to subsection 161.001(1)(O).
=
Because=20
this appeal requires us to interpret a section of the Texas Family =
Code,=20
we restate the basic principles of statutory construction. =
Interpreting=20
statutes is a legal matter, subject to de novo review. =
Bragg v. Edwards =
Aquifer=20
Auth., 71 S.W.3d 729, =
734 (Tex.=20
2002). A trial court has no discretion when evaluating a question =
of law.=20
See=20
Huie =
v.=20
DeShazo, 922 S.W.2d 920, =
927 (Tex.=20
1996); Walker v.=20
Packer, 827=20
S.W.2d 833, 840 (Tex. 1992). =
=
The=20
overriding goal of statutory interpretation is =
to=20
determine the Legislature=E2=80=99s intent. Cont=E2=80=99l =
Cas. Co. v.=20
Downs, 81 S.W.3d 803, =
805 (Tex. 2002). In order to =
ascertain=20
legislative intent, we first look to the plain and common meaning =
of the=20
words used by the Legislature. Tex.=20
Gov=E2=80=99t Code Ann. =C2=A7 =
311.011 (Vernon =
2005);=20
Argonaut=20
Ins. Co. v. Baker, 87 S.W.3d 526, =
529 (Tex.=20
2002). It is a well-settled rule of statutory=20
construction that every word of a statute must be presumed to have =
been=20
used for a purpose. In re =
Bell, 91 S.W.3d 784, =
790 (Tex.=20
2002). To=20
ascertain legislative intent, however, we must look to the statute =
as a=20
whole and not to its isolated provisions. Morrison v.=20
Chan, 699 S.W.2d 205, =
208 (Tex.=20
1985); Tex.=20
Dep=E2=80=99t of Banking v. Mount Olivet Cemetery =
Ass=E2=80=99n, 27 S.W.3d 276, =
283 (Tex.=20
App.=E2=80=94Austin 2000, pet. denied). In ascertaining =
legislative intent, we do=20
not confine our review to isolated statutory words, phrases, or =
clauses,=20
but we instead examine the entire act. Meritor Auto., =
Inc. v. Ruan=20
Leasing Co., 44 S.W.3d 86, 90 =
(Tex.=20
2001).
<=
/SPAN>In=20
this case, we are called =
upon to=20
interpret the meaning of =E2=80=9Cremoval from the parent under =
Chapter 262 for=20
abuse or neglect of the child.=E2=80=9D DFPS contends that =
this=20
phrase merely clarifies that removal under =
subsection=20
161.001(1)(O) is proper if the child was removed for any =
reason=20
under Chapter 262. However, we must presume that the =
phrase =E2=80=9Cabuse=20
or neglect of the child=E2=80=9D was used by the Legislature for a =
reason.=20
See =
Bell, 91 S.W.3d at=20
790.
=
DFPS=20
also asserts that the supreme court has addressed the issue of =
whether=20
=E2=80=9Cabuse or neglect=E2=80=9D are requirements of subsection =
161.001(1)(O).=20
In J.F.C., the supreme court=20
determined:
The evidence establishes as a matter of =
law that=20
the parents failed to comply with the court=E2=80=99s orders =
specifying the=20
actions the parents had to take for the DPRS to return the =
children to the=20
parents. The record also conclusively establishes that the children were =
removed=20
from their parents under Chapter 262 of the Family Code, and it is =
undisputed that they were in the DPRS=E2=80=99s custody for more =
than nine months=20
after their removal. Accordingly, the parental conduct described =
in=20
subsection 161.001(1)(O) of the Family Code was established as a =
matter of=20
law.
96 S.W.3d at =
278=E2=80=9379 (Tex.=20
2002). =
Thus, in holding that subsection=20
161.001(1)(O) was conclusively=20
established, the supreme court=E2=80=99s analysis did not include =
whether the=20
child at issue was removed for abuse or neglect. DFPS contends =
that, by=20
not mentioning that the child was removed for abuse or neglect, =
the=20
supreme court eliminated abuse or neglect as a required element of =
subsection 161.001(1)(O). We disagree.
<=
/SPAN>We=20
first note that the specific question of whether a child must be =
removed=20
under Chapter 262 for that child=E2=80=99s own abuse or =
neglect was not brought =
before the=20
court in J.F.C. Instead, the court was asked to address the =
constitutionality of the broad-form jury charge on parental =
termination used=20
by the trial court. Id. at 277. The supreme court did not =
reach=20
this issue, however, because it held that the evidence established =
parental conduct pursuant to subsection 161.001(1)(O) as a matter =
of law.=20
Id.
=
The Texas Supreme =
Court has=20
not reviewed a termination based on subsection 161.001(1)(O) since =
J.F.C. Among the courts of appeals, most have not looked to =
J.F.C. when reviewing a subsection 161.001(1)(O) =
termination,=20
but have acted =
similarly by not=20
analyzing whether the =
child at=20
issue was removed under Chapter 262 for abuse or=20
neglect. However, =
several=20
decisions have treated a finding of abuse or neglect of the child =
to be a=20
required element.
=
In re=20
S.A.P., from the =
Waco Court=20
of Appeals, specifically =
pointed out=20
that =E2=80=9Cabuse or neglect of the child=E2=80=9D was required =
under subsection=20
161.001(1)(O), and, because testimony showed that the child was =
not=20
removed for abuse or neglect, but because of the risk caused by =
the=20
parents=E2=80=99 prior history, held that there was no evidence to =
support the=20
jury=E2=80=99s finding. 169 S.W.3d 685,=20
705=E2=80=9306 (Tex. App.=E2=80=94Waco=20
2005, no pet.). The Tyler Court =
of Appeals=20
has consistently recognized =E2=80=9Cabuse or neglect of the =
child=E2=80=9D as an element=20
of subsection 161.001(1)(O). See In re K.H., No. =
12-05-00077-CV,=20
2006 WL 3211299, at *5 (Tex. App.=E2=80=94Tyler Nov. 8, 2006, no=20
pet.); In re M.B., No. 12-04-00350-CV, =
2005 WL=20
3201071, at *4 (Tex. App.=E2=80=94Tyler Nov. 30, 2005, no =
pet.); In re A.C., No. 12-04-00264-CV, =
2005 WL=20
2404108, at *4 (Tex. App.=E2=80=94Tyler Sept. 30, 2005, no pet.).=20
Additionally, a decision from the =
Amarillo Court=20
of Appeals actually designated =E2=80=9Cthe child=E2=80=99s =
removal from the parent was a=20
result of abuse or neglect of the child=E2=80=9D as the =
third element of=20
subsection 161.001(1)(O) and went on to conclude that the child at =
issue=20
was removed because of her parents=E2=80=99 =
neglect. In re M.B., No. 07-04-0334-CV, =
2004 WL=20
2867544, at *2 (Tex. App.=E2=80=94Amarillo Dec. 14, 2004, no=20
pet.).
<=
/SPAN>Because=20
the supreme court did not expressly hold that =E2=80=9Cremoval =
under Chapter 262=20
for abuse or neglect of the child=E2=80=9D is not an =
element of subsection=20
161.001(1)(O), we must adhere to the unambiguous language of the =
statute.=20
Thus, in our sufficiency review of the trial court=E2=80=99s =
finding that Hurst=20
engaged in conduct pursuant to subsection 161.001(1)(O), we must =
consider=20
whether DFPS proved by clear and convincing evidence that A.A.A. =
was=20
removed under =
Chapter 262=20
for Hurst=E2=80=99s abuse or =
neglect.
=
In=20
determining=20
whether the evidence is sufficient to support the trial =
court=E2=80=99s finding=20
that A.A.A. was removed because of Hurst=E2=80=99s abuse or =
neglect, and because=20
=E2=80=9Cabuse=E2=80=9D and =E2=80=9Cneglect=E2=80=9D are not =
defined in subsection 161.001(1)(O), it is=20
helpful to review how =E2=80=9Cabuse or neglect of the =
child=E2=80=9D has been addressed=20
as a prong of subsection 161.001(1)(O). In In re M.B., the =
court=20
held that the Department=E2=80=99s affidavit established that the =
child was=20
removed as a result of neglect. 2004 WL 2867544, at =
*2. The=20
affidavit stated that the Department had received a report from =
the=20
hospital treating the child, which informed them that the parents =
could=20
not be located and had not left any contact information. =
Id.=20
As of the date of removal, the parents =
had not=20
visited the child in the hospital in nearly one month. Id.=20
In In re A.C., a Department =
affidavit=20
stated that a report was initially received alleging neglectful=20
supervision. 2005 WL 2404108, =
at=20
*4. After =
investigating, the=20
Department decided that there was =E2=80=9Creason to =
believe=E2=80=9D the=20
allegations. Id. A =
Department=20
specialist found that, after the allegation, the parents placed =
the=20
children with a relative to avoid foster care. Id. After =
caring for=20
the children for four months, the relative brought the children to =
the=20
Department, because she could not care for them and was not =
receiving=20
support from their parents. Id. The specialist believed =
emergency=20
removal was necessary due to alleged drug use and lack of =
appropriate=20
housing. The court held that this evidence established the =
parents=E2=80=99=20
neglect. Id. In In re K.H., the court held that =
evidence=20
that the =E2=80=9Ccase was initiated because of domestic violence =
. . . and=20
physical neglect of both children=E2=80=9D established that =
removal occurred due=20
to parental neglect. 2006 WL 3211299, =
at *5.=20
Removal based on neglect was also held =
to be=20
established where a Department affidavit noted that the child =
tested=20
positive for drugs at birth and the parents were =E2=80=9Cengaged =
in ongoing drug=20
possession and use in violation of a previous service =
plan.=E2=80=9D In re=20
M.B., 2005 WL 3201071, at *4. However, in In re =
S.A.P.,=20
the court held that the abuse or neglect prong was not satisfied =
because=20
a Department =
caseworker=20
specifically testified that the child was not removed for the =
abuse or=20
neglect of the parents, but because of a risk caused by the =
parent=E2=80=99s prior=20
history. 169 S.W.3d at=20
705=E2=80=9306. We=20
conclude that these opinions show that whether a child was removed =
for=20
abuse or neglect should be determined on a case-by-case=20
basis.
&nbs=
p;Here,=20
DFPS argues that the fact that Hurst left A.A.A. in the shelter =
while she=20
went to commit a crime is sufficient to establish neglect. We =
disagree.=20
DFPS did not offer sufficient evidence of the circumstances =
surrounding=20
this event to establish neglect. Specifically, DFPS provided no =
evidence=20
that Hurst knew or reasonably should have known that her child =
would not=20
be taken care of when she left her at the shelter. Similarly, DFPS =
failed=20
to present evidence with whom, and with what instructions, the=20
child was left at the shelter. To the contrary, there is =
evidence=20
that Hurst had provided emergency contact information with the shelter, =
even=20
though this contact information ultimately proved useless.=20
&nbs=
p;Nevertheless,=20
we conclude that the evidence is sufficient to support the trial =
court=E2=80=99s=20
finding that A.A.A. was removed for Hurst=E2=80=99s neglect. DFPS =
did=20
present evidence to the trial court that, once Hurst was released =
from=20
police custody, she did =
not make=20
any effort to find out A.A.A.=E2=80=99s location or condition or =
to leave a way to=20
reach her with either DFPS or the shelter. =
Attached to =
DFPS=E2=80=99s original=20
petition for=20
temporary managing conservatorship of A.A.A. is an affidavit, =
signed on January=20
26, 2006, stating that Hurst was=20
released from county jail on January 25, 2006 at 5:55 p.m., but =
had not=20
yet returned to the shelter or made any attempt to contact =
relatives, and=20
her whereabouts were unknown at that time. =
Moreover, the =
affidavit=20
states that A.A.A. =E2=80=9Cwas placed into protective custody =
because her mother=20
could not be located and there were no other [DFPS] approved =
alternate=20
placement options available.=E2=80=9D On January 26,=20
the trial court found that A.A.A. was =
initially=20
removed from Hurst pursuant to Section 262.104, which allows for =
emergency=20
removal without a court order. Tex.=20
Fam. Code. Ann. =C2=A7 262.104 (Vernon Supp. =
2007). The trial court also issued a =
temporary order=20
naming DFPS as A.A.A.=E2=80=99s temporary sole managing=20
conservator, finding, in =
part, that=20
=E2=80=9Cthere is a continuing danger to the physical health or =
safety of the=20
child if returned to the parent.=E2=80=9D In viewing =
all the evidence =
in the=20
light most favorable to the finding, we conclude that =
a=20
reasonable trier =
of fact=20
could have formed a firm belief or conviction =
that A.A.A. was =
removed under=20
Chapter 262 for Hurst=E2=80=99s neglect. Additionally, because the =
evidence=20
surrounding Hurst=E2=80=99s lack of effort to locate her child =
following her=20
release from custody is undisputed, we hold that the evidence is =
factually=20
sufficient to support the trial court=E2=80=99s =
finding.
<=
/SPAN>We overrule Hurst=E2=80=99s fourth =
issue. Therefore, we need not address =
Hurst=E2=80=99s first=20
through third issues challenging the trial court=E2=80=99s other =
subsection=20
161.001(1) findings, but we must also determine whether the =
evidence was=20
sufficient to support the trial court=E2=80=99s finding that =
termination was in=20
A.A.A.=E2=80=99s best interest.
Best =
Interest of=20
the Child
<=
/SPAN>In=20
her fifth issue, Hurst challenges the legal and factual =
sufficiency of=20
the trial court=E2=80=99s finding that termination was in =
A.A.A.=E2=80=99s best interest=20
pursuant to subsection 161.001(2). Tex. Fam. Code. Ann. =
=C2=A7=20
161.001(2).
<=
/SPAN>A strong presumption exists that a =
child=E2=80=99s best=20
interests are served by maintaining the parent-child relationship. In re =
L.M., 104=20
S.W.3d 642, 647 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, no =
pet.).=20
The same evidence of acts or omissions =
used to=20
establish grounds for termination under subsection 161.001(1) may =
be=20
probative in determining the best interests of the =
child. Id. Some of the =
factors that an=20
appellate court may consider in ascertaining the best interest of =
a child=20
include the list set forth in Holley v. Adams.=20
544 S.W.2d=20
367, 371=E2=80=9372 (Tex. 1976). Those factors include the =
following:=20
=
(1)=20
the desires of the child;
=
(2)=20
the emotional and physical needs of the child now and in the =
future;=20
=
(3)=20
the emotional and physical danger to the child now and in the =
future;=20
=
(4)=20
the parental abilities of the individuals seeking custody;=20
(5) the programs =
available=20
to assist these individuals to promote the best interest of the =
child;=20
=
(6)=20
the plans for the child by these individuals or by the agency =
seeking=20
custody;
=
(7)=20
the stability of the home or proposed placement; =
(8) the acts or =
omissions of=20
the parent that may indicate that the existing parent-child =
relationship=20
is not a proper one; and
=
(9)=20
any excuse for the acts =
or=20
omissions of the parent.
Id.; see also=20
Adams v. Tex. Dept. of Family & =
Protective=20
Servs., 236 S.W.3d 271, =
280=E2=80=9381=20
(Tex. App.=E2=80=94Houston [1st Dist.] 2007, no pet.). These=20
factors are not exhaustive, and there is no requirement that DFPS =
prove=20
all factors as a condition precedent to parental =
termination. In re C.H., 89 S.W.3d 17, 27 =
(Tex.=20
2002). Termination =
of the=20
parent-child relationship is not justified where the evidence =
shows merely=20
that a parent=E2=80=99s failure to provide a more desirable degree =
of care and=20
support of the child is due solely to misfortune or the lack of=20
intelligence or training, and not to indifference or malice. =
Clark v.=20
Dearen, 715 S.W.2d 364, 367 (Tex. App.=E2=80=94Houston [1st =
Dist.] 1986, no=20
writ).
<=
/SPAN>We=20
begin by considering the desires of the child and the suitability =
of any=20
proposed placement. At the time of trial, A.A.A. was too young =
to express with whom she =
desired to=20
live. Nevertheless, A.A.A.=E2=80=99s guardian ad litem noted in =
her report that,=20
during the most recent visit between Hurst and A.A.A., there was=20
limited interaction because A.A.A. does not know her=20
mother. She recommended =
that A.A.A.=20
remain in her current placement, because she has bonded with =
Hurst=E2=80=99s=20
relative and her children and appears to be thriving. Further, =
while the=20
record does not expressly state that DFPS plans on placing A.A.A. =
with=20
Hurst=E2=80=99s relative, Hall testified that Hurst=E2=80=99s =
relative has expressed an=20
interest in adopting A.A.A.
&nbs=
p;We=20
next examine A.A.A.=E2=80=99s emotional and physical =
considerations=20
now and in the future. DFPS =
did not present any evidence showing how =
Hurst posed=20
a physical =
or=20
emotional danger to A.A.A.=20
Both caseworkers testified =
that A.A.A.=20
has no special needs. There is no evidence that =
Hurst had a=20
drug or alcohol problem. Hurst also testified that there =
was no=20
domestic violence problems between her and Alexander.
<=
/SPAN>Nevertheless,=20
the goal of =
establishing a=20
stable, permanent home for a child =
is a compelling =
state interest. In re =
C.E.K., 214=20
S.W.3d 492, 498 (Tex. App.=E2=80=94Dallas 2006, no pet.).=20
We recognize that Hurst testified that =
she is=20
currently living and plans on staying with Alexander in a Lake =
Charles=20
apartment, where she has day care arranged for A.A.A. She also explained that her name was on =
the=20
apartment=E2=80=99s lease, even when she was not living there, =
because she planned=20
on returning to Louisiana. =
Alexander=20
expressed that he is going to stay at the apartment and is ready =
to=20
provide shelter and food =
for A.A.A.=20
<=
/SPAN>However,=20
despite Hurst=E2=80=99s and =
Alexander=E2=80=99s testimony that=20
they are ready to provide for A.A.A., there is also evidence =
weighing=20
against Hurst=E2=80=99s ability to provide a stable, permanent=20
home. Since A.A.A.=E2=80=99s =
removal, Hurst has lived=20
at several locations around Houston and in Louisiana and has =
changed jobs=20
several times. Her=20
rationale for initially leaving Louisiana and moving with A.A.A. =
to the=20
Houston shelter was she =E2=80=9Cwanted to do things on her =
own.=E2=80=9D When asked why=20
she moved back to Louisiana while A.A.A. remained in Texas, Hurst=20
answered, =E2=80=9CBecause that=E2=80=99s home. I was going =
home.=E2=80=9D She explained that, once back in =
Louisiana, she=20
lived back and forth between Alexander and her sick mother, whom =
she=20
assisted.
<=
/SPAN>Hurst=20
also testified that she worked continuously from February 2006 =
until the=20
time of trial. She stated that she worked at McDonald=E2=80=99s =
from February 2006=20
until June 2006. However, the guardian ad litem testified that, on =
June 1,=20
2006, Hurst told her that she had been working at =
McDonald=E2=80=99s for only=20
three weeks. Once back in Louisiana, Hurst testified =
that she=20
babysat two children for seven months, making $300 every two =
weeks. At=20
trial, Hurst expressed that she was currently working early =
evenings at a=20
gas station making $7.25 an hour. Hurst=E2=80=99s frequent moves =
and job changes=20
weigh against her ability to provide a stable, permanent home for =
A.A.A.=20
<=
/SPAN>Finally,=20
we look at Hurst=E2=80=99s acts and omissions that indicate that =
the parent-child=20
relationship is improper, keeping in mind any excuses she has for =
her=20
behavior. The events precipitating DFPS=E2=80=99s taking =
custody of A.A.A.=20
began with Hurst=E2=80=99s arrest for shoplifting. Hurst=20
admitted that shoplifting is wrong, but testified that this was =
the first=20
time she had been arrested and claimed that she shoplifted cough =
medicine=20
for A.A.A., who was sick.=20
While Hurst offered several =
explanations=20
for why she did not attend required parenting classes and claimed =
that she=20
left several messages with Hall indicating that she was=20
moving back to Louisiana, =
it is=20
undisputed that she failed to complete the services outlined in =
her=20
court-ordered family =
service=20
plan. Furthermore, Hurst made at most six out of a possible =
24 visits=20
with A.A.A., and, after she returned to Louisiana in June 2006, =
she did=20
not see A.A.A. again until January 2007. Even though she could have visited =
A.A.A. more=20
often once she was in her relative=E2=80=99s care, Hurst claimed =
that she was told she =
could only=20
visit at the DFPS office. However,=20
when asked why she did not make the remaining 18 visits, which =
would have=20
been at the DFPS office, she replied, =E2=80=9CI don=E2=80=99t =
know.=E2=80=9D Hurst=20
stated that the primary reason she went six months without =
visiting=20
A.A.A. was her lack of transportation, but noted that she =
called=20
A.A.A. everyday. Hall agreed that=20
Hurst had complained about transportation problems during most of =
their=20
conversations. Finally, Hurst=20
testified that she brought A.A.A. clothing and shoes during their=20
visits, but admitted that =
she has=20
provided no financial assistance for her daughter=E2=80=99s =
maintenance.=20
<=
/SPAN>In light=20
of all the evidence, the trial court could have formed a firm =
belief or=20
conviction that termination of Hurst=E2=80=99s parental rights was =
in A.A.A.=E2=80=99s=20
best interest. Accordingly, we hold that the evidence is legally =
and=20
factually sufficient to support the trial court=E2=80=99s finding =
that termination=20
of Hurst=E2=80=99s parental rights was in the best interest of=20
A.A.A.
<=
/SPAN>We=20
overrule Hurst=E2=80=99s fifth issue.Sole Managing=20
Conservator
<=
/SPAN>Having affirmed the =
termination of=20
Hurst=E2=80=99s parental rights, we now turn to =
Hurst=E2=80=99s=20
sixth issue, which asks whether the appointment of DFPS as sole =
managing=20
conservator should be reversed. However, because Hurst asks us to =
consider=20
this issue only if we conclude that the trial court erred in =
terminating=20
her parental rights, we need not address =
it.
Conclusion
=
We affirm the trial =
court=E2=80=99s=20
judgment.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of =
Justices=20
Taft, Hanks, and=20
Higley. |