in the Interest of R.N.W.

Opinion issued July 5, 2013.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-13-00036-CV

———————————

IN THE INTEREST OF R.N.W., a Child

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Case No. 0037937

MEMORANDUM OPINION

D.C.W. appeals the trial court’s termination of his parental rights to his

child, R.N.W. In four issues, D.C.W. argues that the evidence was legally and

factually insufficient to support: (1) termination of his parental rights under Family

Code § 161.001(1)(N), (O), or (Q); and (2) the trial court’s finding that termination

of his parental rights was in R.N.W.’s best interest. See TEX. FAM. CODE ANN. §

161.001(1)(N), (O), (Q) (West. Supp. 2012). We affirm.

Background

R.N.W. was born on December 1, 1999. In July 2000, the trial court entered

an order establishing the parent-child relationship between R.N.W. and her father,

D.C.W. On August 25, 2000, D.C.W. was arrested and charged with assaulting

R.L.B., R.N.W.’s mother. D.C.W. subsequently pleaded guilty to the assault

charge and was sentenced to eight years’ imprisonment. D.C.W. was released in

2008, and, two years later, he was arrested for assaulting R.L.B. a second time.

D.C.W. pleaded guilty to assault against a family member and was sentenced to

four years’ imprisonment.

On April 14, 2011, the Department of Family and Protective Services

(DFPS) took custody of R.N.W. and filed suit, seeking termination of R.L.B.’s and

D.C.W.’s parental rights to R.N.W. and appointment of DFPS as temporary

managing conservator. The trial court appointed DFPS temporary managing

conservator, ordered R.N.W.’s continued removal, and ordered R.L.B. and D.C.W.

to comply with DFPS’s service plan during the pendency of the suit.

On November 13, 2012, the termination suit proceeded to trial. Before

hearing testimony, the trial court terminated R.L.B.’s parental rights based on her

affidavit of relinquishment. DFPS informed the trial court that it would pursue

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termination of D.C.W.’s parental rights under §§ 161.001(1)(D), (E), (F), (N), (O),

and (Q) of the Family Code. Five witnesses testified: (1) Sheena White, a

caseworker at DFPS; (2) Corinne Lundstrum, a volunteer with Child Advocates

and R.N.W.’s guardian ad litem; (3) D.C.W.; (4) Jewel Hchan, D.C.W.’s mother;

and (5) Jacqueline Redeau, D.C.W.’s aunt.

After hearing all the testimony, the trial court terminated D.C.W.’s parental

rights under § 161.001(1)(N), (O), and (Q) and made an express finding that

termination of D.C.W.’s parental rights was in R.N.W.’s best interest. After his

motion for new trial was denied, D.C.W. appealed.

Discussion

In his four issues, D.C.W. argues that the evidence supporting the trial

court’s termination of his parental rights to R.N.W. was legally and factually

insufficient.

A. Standard of Review

In a case to terminate parental rights by DFPS under § 161.001 of the Family

Code, DFPS must establish, by clear and convincing evidence, that (1) the parent

committed one or more of the enumerated acts or omissions justifying termination

and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. §

161.001. Clear and convincing evidence is “the measure or degree of proof that

will produce in the mind of the trier of fact a firm belief or conviction as to the

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truth of the allegations sought to be established.” Id. § 101.007 (West 2008); In re

J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under

section 161.001(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).

In a legal sufficiency review in a parental-rights-termination case, the

appellate 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. In re J.F.C., 96 S.W.3d at 266. We

assume that the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so, disregarding all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible. Id. If, after

conducting a legal sufficiency review of the record, we determine that no

reasonable factfinder could form a firm belief or conviction that the matter that

must be proven is true, then we must conclude that the evidence is legally

insufficient. Id.

In a factual sufficiency review, the appellate standard for reviewing

termination findings is whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the State’s

allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether a

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reasonable jury could form a firm conviction or belief, the appellate court

maintains the required deference for the factfinder’s role. Id. at 26. “An appellate

court’s review must not be so rigorous that the only factfindings that could

withstand review are those established beyond a reasonable doubt.” Id. We should

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved that disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266. “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.” Id.

B. Termination under Subsection 161.001(1)(Q)

In his third issue, D.C.W. argues that the evidence was legally and factually

insufficient to support termination of his parental rights to R.N.W. under

subsection 161.001(1)(Q).

1. Applicable Law

Termination of parental rights is a drastic measure and is of such weight and

gravity that due process requires that the petitioner seeking to terminate the

parent’s rights justify that termination by clear and convincing evidence. TEX.

FAM. CODE ANN. § 161.206(a) (2009); In re G.M., 596 S.W.2d 846, 847 (Tex.

1980). Under subsection Q, a parent’s rights may be terminated when the parent

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“knowingly engaged in criminal conduct that has resulted in the parent’s:

(i) conviction of an offense; and (ii) confinement or imprisonment and inability to

care for the child for not less than two years from the date of the filing the

petition.” TEX. FAM. CODE ANN. § 161.001(1)(Q). “Thus, if the parent is

convicted and sentenced to serve at least two years and will be unable to provide

for his or her child during that time, the State may use subsection Q to ensure that

the child will not be neglected.” In re A.V., 113 S.W.3d at 360. However, proof

that the parent is unable to care for the child is an additional requirement that is not

met by showing incarceration alone. In re B.M.R., 84 S.W.3d 814, 818 (Tex.

App.—Houston [1st Dist.] 2002, no pet.); see also In re H.R.M., 209 S.W.3d 105,

110 (Tex. 2006) (“Terminating parental rights under subsection Q requires that the

parent be both incarcerated or confined and unable to care for the child for at least

two years from the date the termination petition is filed.”).

“Because incarceration is inherently inconsistent with providing personal

care for a child,” the care contemplated by subsection Q includes arranging for the

care to be provided by another. In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—

Amarillo 2001, pet. denied). Once DFPS has established that a parent’s knowing

criminal conduct resulted in his incarceration for more than two years, the burden

shifts to the parent to produce some evidence as to how he will arrange to provide

care for the child during that period. Id.; see also Hampton v. Tex. Dep’t of

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Protective and Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004,

no pet.). When the parent meets his burden of production, DFPS then has the

burden of persuasion to show that the parent’s arrangement would not satisfy the

parent’s duty to the child. In re E.S.S., 131 S.W.3d 632, 639–40 (Tex. App.—Fort

Worth 2004, no pet.); In re Caballero, 53 S.W.3d at 396. Finally, when

determining whether an incarcerated parent is unable to care for a child, we may

consider such factors as the availability of financial and emotional support from

the incarcerated parent. In re B.M.R., 84 S.W.3d at 818.

2. Inability to Care

D.C.W. does not dispute that he knowingly engaged in criminal conduct

resulting in his incarceration for at least two years from the date of the filing of the

petition. He argues instead that the evidence was insufficient to show that he was

unable to care for R.N.W. Specifically, D.C.W. argues that he established he was

able to care for R.N.W. by placing her with his mother or aunt, and, therefore, the

burden shifted to DFPS to show that the arrangements would not satisfy his duty to

the child. He further contends DFPS failed to carry that burden.

D.C.W. correctly asserts that there was evidence that his mother, Hchan, and

his aunt, Redeau, were willing to care for R.N.W. under certain circumstances.

Specifically, Hchan testified that she “could take [R.N.W.] if [R.N.W.] wanted to

come.” Redeau likewise testified that she was willing to care for R.N.W. if

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R.N.W. wanted to live with her. But DFPS presented evidence that D.C.W’s

proposed arrangements with either Hchan or Redeau were inadequate to satisfy

D.C.W.’s duty to R.N.W.

To begin, the evidence does not establish that either Hchan or Redeau agreed

to assume D.C.W.’s parental responsibility to care for R.N.W. on D.C.W.’s behalf

while he was incarcerated. See In re H.R.M., 209 S.W.3d at 110 (“Cases

discussing the incarcerated parent’s provision of support through other people

contemplate that the support will come from the incarcerated parent’s family or

someone who has agreed to assume the incarcerated parent’s obligation to care for

the child.”). Although both testified that they were willing to have R.N.W. live

with them, each qualified her testimony by saying she would do so only if that was

consistent with R.N.W.’s wishes. When asked whether she thought R.N.W. should

be placed with her, Hchan testified: “Being honest, if she wants to come with me, I

will take her; but if she feels like she doesn’t, I will not fight her.” Likewise,

Redeau, testified: “If [R.N.W.] doesn’t want to live with me, I would respect her

rights.” This evidence suggests Hchan or Redeau would care for R.N.W. if

R.N.W. wanted to live with them, but D.C.W. adduced no evidence to demonstrate

how Hchan, Redeau, or anyone else would care for R.N.W. if—as was the case

here—R.N.W. did not want to live with either Hchan or Redeau. See In re N.R.T.,

338 S.W.3d 667, 676 (Tex. App.—Amarillo 2011, no pet.) (considering fact that

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grandmother had expressed reservations about accepting placement of child as

evidence that father was unable during his incarceration to care for child through

family surrogates).

In addition, there was ample evidence supporting the trial court’s conclusion

that the two proposed placements were not in R.N.W.’s best interest. D.C.W.

points out DFPS did not reject either Hchan or Redeau as potential placements

based on a completed home study, and he contends this is evidence that either

would have made an acceptable placement. DFPS is required to investigate a

proposed placement to determine if it is in the child’s best interest. See TEX. FAM.

CODE ANN. § 264.754 (West 2008) (“Before placing a child with a proposed

relative or other designated caregiver, the department must conduct an

investigation to determine whether the proposed placement is in the child’s best

interest.”). But, even if one is completed and approved, a home study is not

binding on the trial court. See In re G.C., No. 01-12-00935-CV, 2013 WL 816440,

at *6 (Tex. App.—Houston [1st Dist.] Mar. 5, 2013, no pet. h.) (mem. op.)

(rejecting appellant’s argument that DFPS wrongly denied his mother’s home

study because “even an approved home study would not have been binding on the

trial court”). Rather, in considering a potential placement, a court may weigh

evidence other than the results of a home study, including the child’s expressed

wishes and the nature of the relationship between the child and the proposed

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placement. See In re A.L., No. 13-01-388-CV, 2002 WL 34230855, at * 5–6 (Tex.

App.—Corpus Christi Aug. 22, 2002, no pet.) (finding that appellant was unable to

care for children, in part, based on children’s expressed desire to remain with foster

family and not to be placed with appellant’s family); In re G.C., 2013 WL 816440,

at *6–7 (considering evidence that grandmother had not seen or had any other

contact with child in several years).

Here, ample evidence weighed against the proposed placements. First,

White, the DFPS caseworker, testified that R.N.W. did not want to be placed with

Hchan, Redeau, or anyone in her father’s family. See In re A.L., 2002 WL

34230855, at * 5–6 (finding that appellant was unable to care for children, in part,

based on children’s expressed desire to remain with foster family and not to be

placed with appellant’s family).

Second, White and Lundstrum testified that they would not recommend

either proposed placement. White testified that DFPS did not conduct a home

study on Hchan because Hchan informed a DFPS caseworker that she had a history

with child protective services and had been charged with possession of heroin and

cocaine twenty years ago. According to White, placement with someone who has

a history with CPS would not be appropriate. Lundstrum, R.N.W’s guardian ad

litem, also testified that she would not recommend placing R.N.W. with Hchan.

While DFPS did complete a home study on Redeau, White testified that it was

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withdrawn after R.N.W. expressed that she did not want to live with Redeau. And

Lundstrum testified that Child Advocates would not recommend a placement for

R.N.W. if R.N.W. clearly expressed a desire not to be placed there.

Third, the evidence showing that neither of Hchan nor Redeau had a past

relationship with R.N.W. supports a finding that placement with them would be

inappropriate. See In re N.R.T., 338 S.W.3d at 676 (considering evidence that

grandmother had previously expressed reservations about accepting placement, she

had neither seen nor had any other contact with child in several years, and she did

not know where child was); In re G.C., 2013 WL 816440, at *6–7 (considering

evidence that grandmother had not seen or had any other contact with child in

several years). Hchan admitted that she has seen R.N.W. about twice in the last

five years. Redeau, who suffers from several medical problems, including

diabetes, high blood pressure, thyroid problems, and liver problems, admitted that

she had never before met R.N.W. 1

1

To the extent that D.C.W. is arguing he was able to care for R.N.W. himself, we

find sufficient evidence to the contrary. When determining whether an

incarcerated parent is unable to care for a child, we may consider such factors as

the availability of financial and emotional support from the incarcerated parent. In

re B.M.R., 84 S.W.3d at 818. As evidence of the unavailability of financial and

emotional support from D.C.W., DFPS presented the testimony of White, who

stated that, although D.C.W. had sent R.N.W. a few letters, he had had no contact,

in person or over the phone, with R.N.W. since his incarceration. White also

testified that she had no knowledge of any financial support or gifts provided to

R.N.W. by D.C.W. while incarcerated. She also testified that R.N.W. had no

desire to be placed with her father.

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After considering all of the evidence, including R.N.W.’s desire not to be

placed with her father or any of her father’s relatives, the absence of a past

relationship between R.N.W., on the one hand, and D.C.W., Hchan, or Redeau, on

the other, and other testimony to the effect that placement with Hchan or Redeau

was not recommended, we conclude that the trial court could have reasonably

formed a firm belief that the placements proposed by D.C.W. were inadequate to

satisfy D.C.W.’s duty to R.N.W. Therefore, we hold there is legally and factually

sufficient evidence to support the trial court’s finding that D.C.W. was unable to

care for R.N.W., either himself or through family surrogates, while incarcerated.

See In re N.R.T., 338 S.W.3d at 675–76 (finding evidence legally and factually

sufficient to support finding that appellant was unable to care for child during

incarceration where grandmother said she was willing to accept placement of child,

but home study was not approved, grandmother had previously expressed

reservations about accepting placement, grandmother had neither seen nor had any

other contact with child in several years, and grandmother did not know where

child was); In re G.C., 2013 WL 816440, at *6–7 (holding evidence legally and

Further, D.C.W. admitted that he did not have much of a relationship with R.N.W.

prior to being incarcerated because R.L.B. would not let him spend much time

with her. He testified that he finally got to know R.N.W. after he completed his

eight year sentence, at a time when R.N.W. was about nine years old. He

acknowledged that he had been out of prison for a total of thirty months of

R.N.W.’s life, and that he had spent only about five months of that time with her.

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factually sufficient to support trial court’s finding that appellant was unable to care

for child while incarcerated when appellant had no means of caring for child,

except for through his mother, appellant’s contact with child was limited to three

letters sent to DFPS, and appellant’s mother, who expressed willingness to care for

child, but who had not seen the child in several years, was rejected by DFPS as

acceptable placement); In re A.L., 2002 WL 34230855, at *5–6 (holding evidence

legally and factually sufficient to support finding that appellant was unable to care

for children when children expressed desire to remain with foster family and not to

be placed with appellant’s family, home study on appellant’s sister was denied, and

sister was already caring for four other children and mother, who was elderly and

ill).

We overrule D.C.W.’s third issue. Because sufficient evidence of only one

predicate finding is necessary to support termination, we need not address

D.C.W.’s remaining arguments relating to termination under section 161.001(1)(N)

and (O).

C. Best Interest of the Child

In his fourth issue, D.C.W. argues that the evidence was insufficient to

support the trial court’s finding that termination of his parental rights was in

R.N.W.’s best interest.

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1. Applicable Law

There is a strong presumption that the best interest of the child will be

served by preserving the parent-child relationship. In re A.A.A., 265 S.W.3d 507,

516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). The same evidence of

acts or omissions used to establish grounds for termination under subsection

161.001(1) may be probative in determining the best interests of the child. Id.

Prompt and permanent placement of the child in a safe environment is also

presumed to be in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a)

(West 2008). A court should consider the following factors, among others, when

determining whether the parent is willing and able to provide the child with a safe

environment: the child’s age and physical and mental vulnerabilities; whether the

child is fearful of living in or returning to the child’s home; the results of

psychiatric, psychological, or developmental evaluations of the child, the child’s

parents, other family members, or others who have access to the child’s home;

whether there is a history of abusive or assaultive conduct by the child’s family or

others who have access to the child’s home; whether there is a history of substance

abuse by the child’s family or others who have access to the child’s home; the

willingness and ability of the child’s family to seek out, accept, and complete

counseling services; and whether the child’s family demonstrates adequate

parenting skills. Id. § 263.307(b).

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The Texas Supreme Court has set out additional factors that courts may

consider when determining the best interest of the child, including: (1) the desires

of the child; (2) the emotional and physical needs of the child now and in the

future; (3) the emotional and physical danger to the child now and in the future; (4)

the parental abilities of the individual seeking custody; (5) the programs available

to assist the individual to promote the best interest of the child; (6) the plans for the

child by the individual or by the agency seeking custody; (7) the stability of the

home or proposed placement; (8) the acts or omissions of the parent that may

indicate that the existing parent-child relationship is not a proper one; and (9) any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976). This list is not exhaustive, and there is no requirement that

DFPS prove all of the factors in order for the court to make a valid finding on the

best interest of the child. In re A.A.A., 265 S.W.3d at 517.

2. Analysis

We conclude that the evidence is legally and factually sufficient to support

the trial court’s finding that termination of D.C.W.’s parental rights was in

R.N.W.’s best interest. First, evidence of R.N.W.’s desires, her present and future

emotional and physical needs, and D.C.W.’s ability to parent R.N.W. and provide

for her needs all support termination. The record reflects that R.N.W., who was

almost thirteen at the time of trial, did not want to be placed with her father or any

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of her father’s relatives. Additionally, D.C.W. admitted he did not have much of a

relationship with R.N.W and had spent only about five months with her since she

was born. And White testified that although D.C.W. had sent R.N.W. a few letters

while incarcerated, he did not have any contact with her over the phone or in

person, and he had not provided her with any gifts or other financial support. From

this evidence, the trial court could have reasonably concluded that D.C.W. has not

been able, and would not be able after being released from incarceration, to

provide for and support R.N.W.’s physical and emotional needs. See In re G.C.,

2013 WL 816440, at *9 (finding that appellant lacked of ability to provide for

child’s present and future emotional and physical needs when appellant had no

contact with child, and had not sent any letters, pictures, gifts, or financial support

while incarcerated).

We also consider whether there is a history of abusive or assaultive conduct

by the child’s family, as well as the emotional and physical danger to the child,

now and in the future. Both exist here. First, the record reveals D.C.W. has a

history of abusing R.L.B., R.N.W.’s mother. D.C.W. was convicted of assaulting

R.L.B. in 2000, when R.N.W. was just eight months old. After serving his eight-

year sentence, D.C.W. was out of prison for about twenty-two months before he

was again charged with assaulting R.L.B. He pleaded guilty to assault of a family

member and was sentenced to four years’ imprisonment. D.C.W. testified that

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R.N.W. was at home when the second assault on her mother occurred, and that

R.N.W. knew that he and R.L.B. were arguing. Second, White testified that,

because of D.C.W.’s criminal history, DFPS was concerned that something might

happen to R.N.W. if placed with D.C.W. Based on this evidence, the trial court

could have reasonably concluded that D.C.W.’s history of abusive conduct toward

R.N.W.’s mother would put a child in his custody in emotional and physical

danger now or in the future. See In re C.J.F., 134 S.W.3d 343, 354 (Tex. App.—

Amarillo 2003, pet. denied) (holding termination of parental rights of mother and

father in best interest of child because father was physically abusive, mother had

failed to protect child from father, and both parents had been in jail for all of

child’s life).

In addition, we may consider the parent’s acts or omissions indicating that

the parent-child relationship is not a proper one, as well as any excuse for the

parent’s acts or omissions. As previously noted, D.C.W. has spent about five

months with R.N.W. since her birth. And since being incarcerated, he has made

only minimal attempts to contact R.N.W. This history of limited contact during

and after extended periods of incarceration supports the trial court’s finding. See

In re B.M.R., 84 S.W.3d at 821 (concluding evidence supported finding that

parent-child relationship was not proper when appellant spent no more than thirty-

17

one hours with child before going to prison and had limited contact with child

since being incarcerated).

Finally, we consider the plans for the child by the agency seeking custody

and the stability of the home or proposed placement. The record reflects that

D.C.W. has been incarcerated for assaulting R.N.W.’s mother for all but thirty

months of R.N.W’s life. This has left R.N.W. without a stable environment and

without any reliable source of emotional or physical support. White testified that

R.N.W. is currently in a foster home and has been in that home for about a year

and a half. White testified that R.N.W. is doing very well in the home and “she

loves it there.” She also testified that the current placement with the foster family

is stable, and that the family has committed to keep R.N.W. long-term, until a

permanent adoption can be made. In light of this evidence, the trial court could

have reasonably formed a firm belief that termination was in R.N.W.’s best

interest, even though DFPS has not yet identified a permanent placement for

R.N.W. See In re C.H., 89 S.W.3d at 28 (“[T]he lack of evidence about definitive

plans for permanent placement and adoption cannot be the dispositive factor [in a

best interest analysis]; otherwise, determinations regarding best interest would

regularly be subject to reversal on the sole ground that an adoptive family has yet

to be located.”); see also In re G.B. II, 357 S.W.3d 382, 384 (Tex. App.—Waco

18

2011, no pet.) (finding that DFPS is not required to make placement with relative

before party’s parental rights may be terminated).

In sum, we conclude that the evidence was legally and factually sufficient to

support the trial court’s finding that the termination of D.C.W.’s parental rights

was in R.N.W’s best interest. See In re S.M.L., 171 S.W.3d 472, 480–81 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (holding evidence legally and factually

sufficient to support finding that termination of father’s parental rights was in best

interest of child when child had bonded with foster parents, child had not bonded

with father, father was incarcerated and had pattern of violent criminal conduct,

and father did nothing to maintain any relationship with child during

incarceration); In re B.M.R., 84 S.W.3d at 820–21 (holding evidence legally and

factually sufficient to support best interest finding when father’s criminal history

caused concern for safety of child in future, father had history of not seeing child

for long periods of time and not providing financial support, father spent no more

than thirty-one hours with child from her birth until when he was incarcerated, and,

while incarcerated, father had made only minimal attempts to maintain contact

with child).

We overrule D.C.W.’s fourth issue.

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Conclusion

We conclude that legally and factually sufficient evidence supports the

termination of D.C.W’s parental rights under section 161.001(1)(Q) of the Family

Code and the trial court’s finding that termination was in R.N.W.’s best interest.

Accordingly, we affirm the judgment of the trial court.

Rebeca Huddle

Justice

Panel consists of Justices Jennings, Brown, and Huddle.

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