in the Interest of K.F., A/K/A K.L.D., a Child

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-02-117 CV ____________________ In the Interest of K.F., a/k/a K.L.D., a child On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-177,083-B OPINION Paige Leigh Daniels Folsom appeals the termination of her parental rights to her daughter, K.F., who is also known as K.L.D. Folsom complains that the evidence presented was legally and factually insufficient to support any of the three statutory grounds found by the trial court to support the termination petition filed by the Texas Department of Protective and Regulatory Services, and that the evidence was legally and factually insufficient to support the finding that the termination was in the best interest of the child. We will address the nine points of error in the groups presented in the appellant's brief. Both the statutory grounds for termination and the child's best interest must be proven by clear and convincing evidence in the trial court. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2002). "[T]he 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 the Interest of C.H., No. 00-0552, 45 Tex. Sup. Ct. J. 1000, 2001 WL 1903109, at *8 (July 3, 2002). Folsom's first four points of error challenge the trial court's findings under Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon Supp. 2002), as follows: Point of error one: The trial court erred in terminating the parent-child relationship in that there is no evidence or, in the alternative, the evidence is legally insufficient to clearly and convincingly support a finding that appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. Point of error two: The trial court erred in terminating the parent-child relationship in that the evidence is factually insufficient to clearly and convincingly support a finding that appellant knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. Point of error three: The trial court erred in terminating the parent-child relationship in that there is no evidence or, in the alternative, the evidence is legally insufficient to clearly and convincingly support a finding that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. Point of error four: The trial court erred in terminating the parent-child relationship in that the evidence is factually insufficient to clearly and convincingly support a finding that appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. The appellant argues that the two findings are not supported by the evidence that she left her three-year-old child alone on one occasion, while she obtained medication for the child. The factfinder was presented with a less sanitized version of events. The police contacted the investigator for the Department about 9:00 p.m. A child was trapped in a house. Burglar bars on the doors and windows prevented the police and firemen from gaining entry until the owners arrived about forty-five minutes after the investigator arrived at the scene. The door to the room housing the child had been pulled closed and secured with an electrical cord. The three-year-old child, K.F., and a small dog were inside the room. An old mattress and box spring lay on the floor; the box spring had been turned over, and its springs were exposed. The floor was literally covered with feces, both old and fresh. The dog bit the investigator. The investigator thought the room was the child's bedroom, because there was no other room in the house that could have been hers. Except for the master bedroom, the rest of the house was also in an unsanitary condition. An ice chest on the kitchen floor contained hundreds of dead maggots. The stench of urine and feces filled the house. There was a pile of urine-soaked laundry in the laundry room. Dangerous items were found in the home. An M-16 rifle was recovered from an unlocked closet in the master bathroom. A loaded handgun was on top of the refrigerator. A sheathed knife with a four or five inch blade was found on the living room floor. On the living room fireplace mantle, bottles of lighter fluid were next to the canister of baby wipes. Folsom claimed that she had left for fifteen minutes to purchase Tylenol for K.F. at a local store. The investigator did not see any medicine, however, and K.F. did not appear to be sick. Paige Folsom and her husband Gene were charged with child endangerment as a result of the incident. At the time of trial, they were both on probation for the offense. Folsom offered rebuttal testimony to significant portions of the Department's evidence. Folsom testified that K.F. does not sleep in the room where the police found her. She and Gene put K.F. in the room because they did not want to take her out in the night air. Gene accompanied Folsom to the store because she could not write checks on his account. He did not go alone because she is the one who gives medication. Folsom denied that the photographs and testimony accurately portrayed the condition of the home. She denied that the ice chest came from her home. She also denied that the knife on the floor came from her house. She also claimed that one gun was under some clothes on the top shelf of the closet, and there was no gun on the refrigerator. The Department's caseworker testified that the Folsoms refused to allow her inside when she attempted to conduct home visits. Folsom recalled talking to the caseworker out in the yard, but did not recall refusing to allow her indoors. Gene denied having refused to allow the caseworker in the house. The appellant argues that the statutory grounds for termination under Section 161.001(1)(D) and (E) cannot be established by a single incident when she left the child unattended. In support of this argument, she cites three cases: Ybarra v. Texas Dep't of Human Servs., 869 S.W.2d 574 (Tex. App.--Corpus Christi 1993, no writ); Doria v. Texas Dep't of Human Resources, 747 S.W.2d 953 (Tex. App.--Corpus Christi 1988, no writ); and Villarreal v. Villarreal, 684 S.W.2d 214 (Tex. App.--Corpus Christi 1984, no writ). Villarreal was a child custody case, not a termination proceeding brought by a state agency, and involved an issue of changed circumstances, not endangerment. Villarreal, 684 S.W.2d at 219. In Doria, the mother left her two toddlers unattended on one occasion, the circumstances of which were not described in the opinion. Doria, 747 S.W.2d at 958. That event, plus living in conditions of poverty that had improved before trial, was insufficient to meet a "clear and convincing" burden of proof of endangerment. Id. at 959. Ybarra involved children from ages ten to two, who lived in poverty and were found alone on the day the department intervened. Ybarra, 869 S.W.2d at 577-78. Their living conditions improved before termination was sought. Id. at 578-79. The isolated incidents and impoverished conditions involved in Ybarra and Doria did not support a finding of endangerment. In a more recent case, In re M.C., 917 S.W.2d 268, 269 (Tex. 1996), the parent briefly left the young children alone in potentially dangerous situations on two occasions. Once, the children wandered outside onto the highway, and another time they were left alone in a running vehicle. Id. at 269-70. Also, the children lived in unsanitary conditions. Id. at 270. The Supreme Court held that the Department presented legally sufficient evidence to support the trial court's judgment of termination and remanded the case to the court of appeals to address appellant's other points of error. Id. at 269-70. For more than forty-five minutes, Folsom left her three-year-old child with a dog; the child was barred from rescue in a physically hazardous and extraordinarily unsanitary room. Here, the facts are far more egregious than those in Ybarra and Doria, where the children were briefly left unattended under apparently benign circumstances that were corrected after intervention, but somewhat less egregious than in M.C., where the children were wandering onto the highway and driving the family car into a building. As in M.C., the evidence showed an unsanitary environment. Unlike Doria and Ybarra, there is no evidence of improved living conditions in this case. Although the appellant challenged the Department's account of the severity of the incident involved and the condition of the home, the weight and credibility of the controverted testimony were for the jury to decide. Because a reasonable finder of fact could form a firm belief or conviction that grounds exist for termination under subsections D and E of Section 161.001(1), points of error one through four are overruled. Folsom's points of error five, six, and seven challenge the trial court's findings under Section 161.001(1)(O) (Vernon Supp. 2002). A finding on any one ground, coupled with a finding that termination is in the best interest of the child, is sufficient to terminate parental rights. Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 134 (Tex. App.--El Paso 1997, no writ). The trial court's ruling will be affirmed so long as there is evidence sufficient to support termination on any one of the grounds found under Section 161.001(1) so long as there is a finding that termination is in the best interest of the child. Id. As we have found sufficient evidence to support the findings under Section 161.001(1)(D) and (E), we need not address points of error five through seven. Folsom's final two points of error challenge the trial court's findings under Section 161.001(2) (Vernon Supp. 2002), as follows: Point of error eight: The trial court erred in terminating the parent-child relationship in that there is no evidence or, in the alternative, the evidence is legally insufficient to clearly and convincingly support a finding that termination of the parent-child relationship between appellant and the child is in the child's best interest. Point of error nine: The trial court erred in terminating the parent-child relationship in that the evidence is fac[tu]ally insufficient to clearly and convincingly support a finding that termination of the parent-child relationship between appellant and the child is in the child's best interest. Among the factors considered in ascertaining the best interest of the child are the following: 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 individuals seeking custody; 5) the programs available to assist these individuals to promote the best interest 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; 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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The evidence described in our discussion of the first four points of error supports the Department's argument that termination is in K.F.'s best interest because of emotional and physical danger to the child now and in the future. In addition, Folsom and her husband failed to cooperate with the Department or to take advantage of the assistance the Department provided. The Department caseworker testified that the child was not returned to Folsom because the service plan had not been completed. The Folsoms refused to let the worker in their home. After attending two sessions, the Folsoms failed to complete family counseling. The plan required Folsom to show that she was employed, and, although she claimed to earn nine hundred dollars each week caring for Gene Folsom's invalid father, Folsom failed to produce pay stubs to demonstrate employment. At trial, Folsom testified that she and her husband both take care of his father from 10:30 to 5:00 for a collective nine hundred dollars a week. In March 2001, the child's permanency plan changed from reunification to termination because the Department was approaching its one year deadline without successful completion of the service plan. A clinical psychologist who performed a psychological evaluation of Paige Folsom found the appellant to be suffering from a dependant personality disorder. In terms of her taking care of the child, she would depend upon her husband to assist in taking care of K.F. Determining that appellant needed counseling to help her make independent decisions without looking to other adults for direction, the psychologist scheduled some appointments for Folsom. She never appeared for her appointments. The psychologist also evaluated Gene Folsom, because he was a member of K.F.'s household, and found him to be suffering from major depressive disorder and substance abuse. Folsom claimed that she refused to cooperate with the Department because she was protecting her constitutional rights. Folsom testified that she completed the first three plans, but the Department kept giving her new plans with more requirements. The caseworker testified that the plan is revised every four months to allow for incremental progress and to set new goals. The child's CASA guardian ad litem expressed the opinion that it would be in the child's best interest to terminate the parent-child relationship. She made regular visits to K.F.'s foster home, and visited her school, day care, and counselor, but had little contact with the appellant because Folsom and her husband were very reluctant to visit with her. When she first observed K.F., the child was very reserved, withdrawn, and frail, with thin hair and peeling nails. Although the child still gets frustrated at times, she became very outgoing over the course of the eighteen months that she had been in foster care. The Department was investigating three possible relative placements for K.F. at the time of trial. The dangerous and unsanitary conditions in which Folsom left her child demonstrated a lack of parenting ability unremedied in the ensuing months. We hold that a reasonable finder of fact could form a firm belief or conviction that termination of Paige Folsom's parental rights is in K.F.'s best interest. Points of error eight and nine are overruled. The judgment is affirmed. AFFIRMED. PER CURIAM Submitted on July 11, 2002 Opinion Delivered August 15, 2002 Do Not Publish Before Walker, C.J., Burgess and Gaultney, JJ.