Court of Appeals of Texas, Dallas.
Terry AZBILL, Appellant,
DALLAS COUNTY CHILD PROTECTIVE SERVICES UNIT OF THE TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
December 20, 1993
On Appeal from the 305th District Court Dallas County, Trial Court Cause No. 91-877-X.
Before BAKER, BURNETT and ROSENBERG, JJ.
*1 In this appeal of the trial court’s order terminating his parent-child relationship with his four children, Terry Azbill, Sr. contends the evidence is insufficient to support the jury’s findings terminating that relationship. Terry also contends the trial court erred in overruling his motion for new trial because there was insufficient evidence to support the jury’s findings terminating the parent-child relationship. We affirm the trial court’s judgment.
In 1987, at age fifteen, Tina became pregnant. She married appellant, who was twenty-one years old, in March 1987. Terry, Jr. was born in July 1987.1 Tina and Terry had one child a year for the next three years: Tresia, born June 1988; Torrie, born June 1989; and Talesha, born July 1990. Appellee intervened in 1991 and placed the children in foster care. The evidence focuses on the condition of the residences where the parents raised the children and the parents’ behavior towards the children. The evidence involves the effect on the children of the environment and the parents’ behavior and attempts to regain custody.
Condition of the Home
The young parents did not keep a sanitary home for the children. Appellant’s mother visited appellant’s home three weeks after Talesha’s birth. She described the bedroom where Tina, appellant, and Talesha slept as having blood all over the floor-“because [Tina] had just had the baby.” Talesha, because of her small size, slept in a baby’s bathtub placed inside a baby bed. All around the bathtub inside the baby bed “there were dirty diapers, soiled diapers, poo-poo all in it, laying all the way around the bed.” The kitchen was less than sanitary: “And in the sink in the kitchen was the baby’s bottles. It was like somebody had vomited where the baby’s bottles was at....”
Several witnesses described Terry, Jr.’s room as bare of furniture except a mattress in the middle of the floor. Terry, Jr.’s room had feces spread on the mattress, the floor, and the walls. Witnesses testified there were dirty clothes spread around the house. Tina’s grandmother said the unsanitary conditions in the home concerned her. On a visit to the house, she saw dirty clothes piled up in front of the stove. The children climbed on the clothes trying to get food out of pans left from the night before.
Besides a lack of cleanliness, witnesses testified to dangerous conditions in the home. A housing inspector testified there were broken windows in the house with exposed, broken glass. Appellant’s mother testified that one time when she came to the house, Terry, Jr. let her into the house. Tina was not at home, and appellant was asleep with his bedroom door locked. Appellant left Terry, Jr., who was then four years old, in charge of his three sisters. Terry, Jr. had fed his sisters cereal and had pulled some ribs down on the floor to feed the dog. There was butter on the stove and broken glass on the floor where a jar of pickles had broken. After appellant’s mother woke up appellant and pointed out the danger of leaving the children unsupervised, appellant ordered her out of the house.
*2 Appellant testified that Terry, Jr. once pushed Tresia into a puddle of pink liquid on the floor. The pink liquid was oven cleaner. The substance burned Tresia’s leg to the point she required hospitalization.
A caseworker for appellee testified that she visited appellant’s residence after appellant’s and Tina’s separation. Appellant had custody of Terry, Jr. and Torrie. There was broken glass on the kitchen floor. Terry, Jr. cut his foot on the glass while the caseworker was at the home. As the caseworker spoke to appellant, Torrie came into the room carrying a kerosene candle, which she handed to the caseworker. The candle was leaking kerosene. A warning label on the candle stated that the substances were fatal if swallowed.
The caseworker also testified that although Talesha was ten months old, she had not received any immunizations. Torrie was behind on her immunizations. The caseworker stated that appellant’s and Tina’s failure to get Talesha and Torrie immunized endangered the children.
Tina testified that appellant had a live-in babysitter for the children who physically abused them. Tina found the three older children with large blue bruises on their buttocks.
The medical records show that Tresia got floor wax sprayed in her eye in July 1989. She received emergency room treatment.
Appellant’s Behavior Towards and Around the Children
Several witnesses testified that appellant was harsh in his discipline of the children, especially Terry, Jr. Appellant conceded his discipline was harsh. A police officer testified Tina told him that appellant would discipline the children with belts and coathangers. Tina’s grandmother stated that appellant would grab Tresia or Terry, Jr. by the hand, hold the child suspended in the air, and tell the child to sit down.” She also stated that appellant once slapped Terry, Jr.’s face when he was two-and-a-half years old.
Tina and appellant began locking Terry, Jr. in his room2 when he was two years old after he pushed Tresia into the puddle of oven cleaner. They had concern he would run out of the house into the street. Tina’s grandmother said they kept Terry, Jr. locked up “[b]ecause he wouldn’t behave and stay out of stuff.” Appellant testified they kept Terry, Jr. locked up because otherwise appellant and Tina would awaken to the sound of Terry, Jr. banging pots and pans in the kitchen.
Appellant also said that Terry, Jr. was afraid to stay in his room because he would stay up late at night watching horror films, such as Friday the Thirteenth, with them. Terry, Jr. would awaken appellant between 9:00 and 11:30 in the morning by banging on the door and asking to be let out of the room. While kept locked in this room, Terry, Jr. played with his feces, spreading them on his mattress, the floor, and the walls. He kicked and scratched the door while trying to get out of the room to the point that he destroyed the bottom of the door.
*3 Appellant’s mother testified that appellant was sometimes intoxicated while caring for the children. A caseworker with appellee testified Tina told her that appellant would drink and drive with the children. Tina also told her that appellant treated Terry, Jr. like a slave by making Terry, Jr. bring him beer. Appellant kept Terry, Jr. locked up in his bedroom.
A housing counselor for the City of Mesquite, testified about an incident of harsh punishment by appellant. Tina and appellant were in her office with the children. Terry, Jr. and one of the girls were playing in the office getting into the counselor’s desk. Appellant grabbed Terry, Jr., hit him hard on the back, and threw him against a chair. Appellant then grabbed his daughter by one arm and threw her against the chair.
The counselor said Tina had told her that appellant once “busted” Terry, Jr.’s mouth. Tina said that appellant has hit Terry, Jr. so hard that Terry, Jr.’s nose would bleed. The caseworker testified Tina told her that appellant, while angry at Terry, Jr., once dropped him, causing the child’s nose to bleed.
Tina occasionally ran away from appellant and took the children with her. One time, Tina disappeared with the children for about two weeks. When she returned, she gave the children to appellant but did not move back with him. Appellant took the children to his mother. Talesha, then less than eight months old, was so hungry she had difficulty keeping food down. Appellant’s mother had to feed Talesha with a teaspoon. That night, Talesha began having seizures and was taken to the hospital. Talesha had a fever of 104 degrees. The doctor wanted to perform a lumbar puncture to determine whether Talesha had meningitis, a fatal disease. Appellant at first balked at approving the procedure. After one-and-a-half hours of persuasion by the doctor and the nurse, appellant finally gave his approval for the lumbar puncture.
Tina’s grandmother testified that the children did not get enough love and attention.
Tina and appellant would tell the children, “Get away.” The caseworker testified that Talesha was in the hospital with a coin stuck in her throat while in foster care. Appellant and Tina visited Talesha at the hospital, but they spent a lot of time out of Talesha’s room. They would go outside to smoke and be gone for a long time.
Appellant verbally abused Tina in front of the children. Appellant never struck Tina.
Effect of the Environment and Appellant’s Behavior on the Children
A clinical psychologist tested Terry, Jr. and Tresia. Terry, Jr.’s first test was in September 1991, shortly after appellee had removed Terry, Jr. from appellant’s and Tina’s custody. At this testing, Smith found Terry, Jr. to be developmentally delayed by about one-and-a-half years; that is, although, Terry, Jr. was four years old, he was operating on the level of a two-and-a-half-year old. This developmental delay affected Terry, Jr.’s ability to go to school the next year. The psychologist also found that Terry, Jr.’s social skills were delayed. Terry, Jr. “was responding more like what we call the terrible two’s as opposed to a four-year-old.” Terry, Jr.’s speech was mildly delayed. The psychologist believed that the cause of Terry, Jr.’s developmental delay was a lack of adequate nurturing, teaching, training, and guidance in his environment. This developmental delay was the fault of his parents. Keeping a child locked in a room causing the child to play with its own feces is emotionally abusive. The psychologist thought overdiscipline had been a significant problem for Terry, Jr.3
*4 The psychologist tested Terry, Jr. a second time in July 1992. At this testing, Terry, Jr.’s mental development had improved. He was only one year delayed; that is, he was five years old with the mental development of a four-year-old. Terry, Jr.’s improvement was due significantly to the change in his environment. Terry, Jr. would continue to improve as long as he stayed in the same type of environment in which he had made his improvement. The psychologist believed that putting Terry, Jr. back into his previous environment could physically endanger him.
The psychologist tested Tresia in November 1991. He found that Tresia suffered from attention deficit disorder, which caused her to have difficulty maintaining attention. Tresia was somewhat overaggressive, but she controlled it. When playing with her dolls, she would display a strong parental attitude. She was very fussy and would overdiscipline the dolls. She was somewhat developmentally delayed, but not as badly as Terry, Jr. The psychologist thought there was a strong likelihood that if Tresia had been in the Azbill household as long as Terry, Jr., she would exhibit a “similar pattern that her brother showed.”
The psychologist found Tresia’s and Terry, Jr.’s behavior consistent with that of children exposed to family violence or that have been abused or neglected. In his opinion, the Azbill household environment and appellant’s behavior endangered Tresia and Terry, Jr.
Appellant’s Attempts to Regain Custody
In January 1992, the caseworker met with appellant to set up a service plan for him to follow to regain custody of his children. Appellant attended parenting classes as directed, but he did not follow other parts of the plan. Appellant did not get a stable residence where the children could live. He did not get counseling. Although entitled to visit the children once each week, he visited them only once after meeting with the caseworker. Appellant said he did not attend counseling and visit his children because he did not have a car, there was no public transportation where he lived, he could not afford a taxi, and no one would take him to visit the children. Appellant also said that visiting his children upset him because the children did not understand why they could not leave with him.
Appellant’s mother testified that, although she had a car, she would not take appellant to visit his children because he would be depressed afterward and would get drunk. She did not take him to two psychiatric appointments because appellant did not want to go to them. She stated that appellant had not given the children any birthday cards or presents since they were removed from his custody. Before appellant would be ready to care for the children, he would have to quit running around with “punks” and drinking. She stated that although appellant had completed the parenting classes, she did not believe he was ready to be a parent.
Appellant testified that he had held jobs in pest control businesses. At the time of trial, he was unable to work due to a back injury. Appellant received workers’ compensation payments of $135 per week.4 Appellant expected to return to work after six weeks of rehabilitation.
*5 In June 1991, appellee filed a petition affecting the parent-child relationship requesting temporary managing conservatorship of the children. That same month, appellee intervened in the home and placed Terry, Jr. and Tresia with appellant’s mother. Appellee placed Torrie and Talesha in emergency foster care. In August 1991, the trial court entered an order designating appellee as temporary managing conservator of all four children with actual possession of Torrie and Talesha. The court designated appellant and Tina as temporary possessory conservators of the four children. The court designated appellant’s mother as temporary possessory conservator with actual possession of Terry, Jr. and Tresia.
The court set conditions for Tina to regain possession of Torrie and Talesha. That same month, appellee placed Terry, Jr. and Tresia in foster care at appellant’s mother’s request. In October 1991, appellee filed its petition for termination of appellant’s and Tina’s parental rights to the four children. A jury found by clear and convincing evidence that appellant’s and Tina’s parental rights to the four children should be terminated. The trial court entered judgment on the jury’s verdict and terminated appellant’s and Tina’s parental rights to the four children.5
A. The Family Code
The trial court may grant a petition for termination of the parent-child relationship of a parent who is not the petitioner if:
(1) The parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
and in addition, the court further finds that
(2) termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 15.02(1)(D), (E), (2) (Vernon Supp. 1993).
There are four requirements for termination under subsection (1)(D): The parent must have
(1) knowingly placed or knowingly allowed the child,
(2) to remain in conditions or surroundings,
(3) that endanger the (a) physical or (b) emotional well-being of the child, and
(4) termination is in the best interest of the child.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
There are four requirements for termination under subsection (1)(E): The parent must have
*6 (1) engaged in conduct,
(2) or knowingly placed the child with persons who engaged in conduct,
(3) that endangers the (a) physical or (b) emotional well-being of the child, and
(4) termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 15.02(1)(E) (Vernon Supp. 1993); see Holick, 685 S.W.2d 20.
B. The Case Law
To terminate parental rights under In re S.H.A., 728 S.W.2d 73, 82 (Tex. App.-Dallas 1987, no writ).
Subsection (D), referring to “conditions or surroundings,” requires a showing that the parent placed the child in an environment dangerous to the child’s physical or emotional well-being. In re S.H.A., 728 S.W.2d at 85.
Subsection (E) contemplates conduct that affects the physical or emotional well-being of the child. The court may base termination on emotional endangerment only. In re S.H.A., 728 S.W.2d at 85.
In addition to showing the requirements for termination under either subsection (D) or (E), there must be evidence that the termination is in the best interest of the child. In re S.H.A., 728 S.W.2d at 82. A non-exclusive list of the factors for the fact finder to consider in assessing the best interests of a child is:
(1) the desires of a 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 individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interests of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
*7 (8) the acts or omissions of the parent which 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.
In re S.H.A., 728 S.W.2d at 89.
C. Sufficiency of the Evidence
The natural rights existing between parents and their children are of constitutional dimensions. Cawley v. Allums, 518 S.W.2d 790, 792 (Tex. 1975).
1. Burden of Proof
The evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent’s rights. In re S.H.A., 728 S.W.2d at 86.
Clear and convincing evidence is that degree of proof which will produce in the fact finder’s mind a firm belief or conviction about the truth of the allegations the petitioner seeks to show. Williams v. Department of Human Servs., 788 S.W.2d 922, 925 (Tex. App.-Houston [1st Dist.] 1990, no writ).
2. Standard of Review
When we review the factual sufficiency of the evidence we must consider all of the evidence in the record. Williams, 788 S.W.2d at 926.
When we review a finding made by clear and convincing evidence, we sustain an insufficient evidence point only if the fact finder could not have reasonably found the fact was established by clear and convincing evidence. Williams, 788 S.W.2d at 926.
D. Motion for New Trial
*8 A trial court has broad discretion to grant or deny a motion for new trial, either before or after judgment. Ferguson & Co. v. Roll, 776 S.W.2d 692, 695 (Tex. App.-Dallas 1989, no writ).
The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles. Ramirez, 837 S.W.2d at 409.
APPLICATION OF LAW TO THE FACTS
A. The Evidence
In points of error one, three, five, and seven, appellant contends the evidence was insufficient to support the jury’s findings terminating the parent-child relationship between him and his four children. The record contains evidence showing appellant violated section 15.02(1)(D).
The testimony about drinking and driving with the children, leaving the children unsupervised in the kitchen, and leaving them with an abusive babysitter constitutes evidence that appellant violated section 15.02(1)(E) as to the children. Tina testified that she thought it was emotionally abusive to Tresia, Torrie, and Talesha to see appellant abuse Terry, Jr. The evidence shows violations to each child.
The record shows that appellant engaged in conduct that endangered Terry, Jr.’s physical and emotional well-being. The psychologist testified that locking Terry, Jr. in his bedroom causing Terry, Jr. to play with his own feces was emotionally abusive. Several witnesses testified that appellant was overly harsh in disciplining Terry, Jr. Appellant conceded he administered overly harsh discipline. The psychologist stated that overdiscipline had been a significant problem. Because of his environment, Terry, Jr. was developmentally delayed by one-and-a-half years and his social skills and speech were delayed. In the psychologist’s opinion, appellant’s conduct endangered Terry, Jr.
Appellant violated section 15.02(1)(D) and (E) with Tresia by failing to properly supervise Tresia and Terry, Jr. so they would not hurt one another. This lack of supervision resulted in Tresia getting burned with oven cleaner by Terry, Jr. The psychologist testified that Tresia was somewhat developmentally delayed. In the psychologist’s opinion, the environment and appellant’s conduct endangered Tresia.
*9 Appellant violated section 15.02(1)(D) and (E) with Talesha by not having her vaccinated, leaving her in a filthy baby bed strewn with dirty diapers when she was an infant, and by delaying approving performance of a test to determine whether she had meningitis.
Applying the Holley factors to determine the best interests of children, the record supports the jury’s finding that termination would be in the best interests of the children. The children did not testify, but the evidence of appellant’s few visits with the children after appellee placed them in foster care showed that the children loved their father and wanted to leave with him.
Tresia and Terry, Jr. needed special environments to help them overcome the damage to their social and developmental abilities they suffered in appellant’s home. The record did not show that appellant could provide a stable home and proper environment for them. The psychologist testified that returning Terry, Jr. and Tresia to their previous environment would result in the loss of the progress they had made in overcoming their developmental delay. The jury could infer that the same fate would befall Torrie and Talesha as they reached Tresia and Terry, Jr.’s ages and appellant raised them.
As for appellant’s parental abilities, the record contains conflicting evidence. Although appellant admitted having been too harsh in his discipline with the children, he enrolled in and completed parenting classes. However, appellant’s mother testified that appellant was still too immature to care properly for his children. Although there were programs available to assist appellant, he did not obtain counseling provided by appellee.
Appellants’ acts and omissions include his failure to provide a safe, clean home for the children before appellee intervened. The testimony about appellant’s failure to provide sufficient care and nurturing for the children shows that the parent-child relationships are not proper. However, the record shows that appellant sought immediate medical care for the children when they got hurt. He paid for food and clothes for the children when Tina ran away with the children. Appellant rarely visited his children after appellee placed them in foster care. He did not give them birthday presents or cards. Appellant did not get a stable residence where he could raise the children.
Appellant sought to excuse his failure to visit his children by explaining that he did not have a car, no public transportation existed in his neighborhood, neither his mother nor his friends would take him to the visits, and taxis were too expensive. However, appellant received thirty-nine to sixty-four dollars each week above his expenses. Appellant explained that another reason he did not visit his children was because it was emotional for him and left him depressed.
*10 Having reviewed the entire record, we hold the evidence is sufficient for a reasonable juror to find that clear and convincing evidence showed that appellant violated section 15.02(1)(D) and/or (E) about all four children. Additionally, the evidence is sufficient for a reasonable juror to find that clear and convincing evidence shows that termination of the parent-child relationships between appellant and each child is in the best interest of each child. We overrule appellant’s points of error number one, three, five, and seven.
B. The Motion for New Trial
There was no hearing on appellant’s motion for new trial. The order overruling the motion for new trial was by operation of law. See TEX. R. CIV. P. 329b(c). Because we have already concluded that the evidence was sufficient to support the verdict terminating the parent-child relationship between appellant and his four children, we conclude that appellant has not carried his burden to show an abuse of discretion in the trial court on the ruling on the motion for new trial. We overrule appellant’s points of error numbered two, four, six and eight.
We conclude the evidence was sufficient to support the jury’s findings terminating the parent-child relationship between appellant and his four children. We also conclude appellant did not carry his burden to show a clear abuse of discretion in the trial court on the denial of his motion for new trial. We affirm the trial court’s judgment.
Tina testified that appellant was not Terry, Jr.’s father. Appellant did not attempt to establish paternity. Nonetheless, the trial court submitted the case to the jury and entered judgment as if appellant were Terry, Jr.’s father.
The record contains testimony about whether the door was “locked,” “tied,” or simply closed. The record does show that the door was closed and that Terry, Jr. could not open the door.
Terry, Jr. was aggressive in foster care and could be a danger to younger children. While in foster care, he held a child’s head underwater and said, “Die, Matthew, die.”
Appellant testified that he paid $50 per week to his mother for room and board and $21 per week for cigarettes. He paid $20-$25 per week to Wal Mart for a television costing more than $400 that he was purchasing on layaway. Appellant placed the television on layaway three weeks before trial. Appellant did not explain what happened to the remaining $39-$44 per week after he purchased the television or the $64 per week before he purchased the television.
Tina perfected an appeal from the trial court’s judgment. However, on Tina’s motion, this Court dismissed her appeal. Tina also filed a crossaction against appellant requesting a decree of divorce. The trial court signed a document styled “Decree of Divorce” after it signed the judgment terminating appellant’s and Tina’s parental rights. For the effect of the divorce decree, see Azbill v. Dallas County Protective Services, 860 S.W.2d 133 (Tex. App.-Dallas 1993, no writ).