Hines v. DFPS (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Radack)
(termination of parental rights affirmed)     
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack  
Before Chief Justice Radack, Justices Bland and Massengale    
01-08-00045-CV        Larry Wayne Hines v. Department of Family and Protective Services    
Appeal from 314th District Court of Harris County

MEMORANDUM OPINION

After a bench trial, the trial court terminated the parental rights of appellant, Larry Wayne Hines, to his son, N.J.
We determine whether the evidence is factually sufficient to support the trial court's finding that termination was in
N.J.'s best interest. We affirm.

BACKGROUND

N.J. was the son of appellant and Jennifer J., his common-law wife. TDFPS was appointed temporary sole
managing conservator of N.J. in early 2007, when the mother tested positive for cocaine. TDFPS moved to
terminate appellant's and Jennifer J.'s parental rights in late 2007.

After a hearing that appellant, who was then in jail, did not attend because he refused a bench warrant, the trial
court ordered Jennifer J.'s and appellant's parental rights terminated. In its termination decree, the trial court
found that TDFPS had proved the sole statutory ground for termination, which was Texas Family Code section
161.001(1)(M) (the parent "had his . . . parent-child relationship terminated with respect to another child based
on a finding that the parent's conduct was in violation of Paragraph (D) or (E) . . . ."), (1) and that termination was
in N.J.'s best interest. Only appellant appealed.

STANDARD OF REVIEW

In order to terminate parental rights under section 161.001 of the Texas Family Code, the petitioner (here,
TDFPS) must establish that the parent engaged in conduct enumerated in one or more of the subsections of
section 161.001(1) and must also show that termination of the parent-child relationship is in the best interest of
the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2008); Richardson v. Green, 677 S.W.2d 497, 499 (Tex.
1984). The petitioner must prove both prongs and may not rely solely on a determination that termination is in the
best interest of the child. Tex. Fam. Code Ann. § 161.001; Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex.1987).

It is well-established that parental rights are of constitutional dimension and are "'far more precious than property
rights.'" Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.
1208, 1212 (1976)). Because of the great importance of parental rights, grounds for termination must be
supported by clear and convincing evidence rather than a mere preponderance. In re C.H., 89 S.W.3d 17, 23
(Tex. 2002). Clear and convincing evidence refers to a degree of proof that will produce in the mind of the
factfinder a firm belief or conviction as to the truth of the allegations sought to be proved. Id. at 25.

When conducting a factual-sufficiency review of the evidence in a termination-of-parental-rights case, we examine
the entire record to determine whether "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" that the two prongs of section 161.001 were met. In re J .F.C., 96 S.W.3d 256, 266 (Tex. 2002); see
Tex. Fam. Code Ann. § 161.001. If the evidence that could not be credited in favor of the finding is so great that it
would prevent a reasonable fact-finder from forming a firm belief or conviction that either termination was not in
the best interest of the child, or none of the grounds under section 161 .001(1) was proven, the evidence will be
factually insufficient, and the termination will be reversed. In re J.F.C., 96 S.W.3d at 266.

BEST INTEREST

In a single issue, appellant challenges the factual sufficiency of the evidence showing that termination of his
parental rights to N.J. was in the child's best interest.

A. The Law

The factfinder may consider the following non-exclusive factors in determining the best interest of the child: (a)
the desires of the child; (b) the emotional and physical needs of the child, now and in the future; (c) the emotional
and physical danger to the child, now and in the future; (d) the parental abilities of the individuals seeking
custody; (e) the programs available to assist these individuals to promote the best interest of the child; (f) the
plans for the child by these individuals or by the agency seeking custody; (g) the stability of the home or
proposed placement; (h) the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one; and (i) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive, and absence of evidence for some of these
factors does not preclude a fact-finder from forming a reasonably strong belief that termination is in the best
interest of the child. In re C.H., 89 S.W.3d at 27.

Although criminal history is a factor in the determining a child's best interest, it is not dispositive. In re C.T.E., 95 S.
W.3d 462, 466 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). "Termination of parental rights should not
become an additional punishment for imprisonment for any crime." Id. "Thus, in determining the weight of this
factor [criminal history], we consider the expected length of [the parent's] imprisonment and whether it can be
inferred from [his] criminal conduct that he has endangered the safety" of the child. Id.

B. Discussion

N.J., being just under 2 years old at the time of the hearing, was too young to express his desires, and there was
thus no evidence of Holly factor (a). Likewise, TDFPS produced no evidence of Holly factors (b), (c), (f), or (g). (2)

What TDFPS did produce was evidence of appellant's lengthy criminal record, spanning 20 years. Most of
appellant's offenses preceded N.J.'s birth, and many of them were misdemeanors or state-jail felonies that were
non-violent. However, appellant had six convictions, either state-jail-felonies or misdemeanors, involving violence
or its threat, although not against N.J.:

assault (class A misdemeanor): offense and conviction in September 1986

2 months in jail


terroristic threat (including finding of family violence): offense in October 1999, conviction in November 1999

18 days in jail


assault on a family member: offense in August 2001, conviction in August 2001

75 days in jail


assault on a family member (N.J.'s mother): (3) offense in April 2002, conviction in December 2002

180 days in jail


assault on a family member (N.J.'s mother): (4) offense in June 2002, conviction in December 2002

180 days in jail


assault on a family member (N.J.'s mother): (5) offense in February 2005, conviction in November 2006

14 days in jail


Appellant also had multiple convictions for theft, including after N.J.'s birth: (1) two for misdemeanor theft in 2000
and 2001 (31 and 90 days); (2) two for third-offender theft (13 months in state jail, concurrent); and (3) one for
theft by check in November 2006, after N.J.'s birth (two weeks in jail). Appellant's remaining convictions included
one for possession with intent to deliver less than 28 grams of crack cocaine (1991: 5 years in prison, probated
for 10 years (6)), one for unauthorized use of a vehicle (1995: 180 days in jail), one for delivery of less than one
gram of cocaine (1998: 12 months in state jail), two for driving while license suspended (1999 and 2001: 10 days
in jail for each), and harassment (2002: 30 days in jail).

The above, undisputed evidence indicates that appellant had a lengthy criminal history, with 17 convictions total,
14 of which had occurred in the last 10 years; that he evidenced a repeated tendency to commit offenses on the
heels of his release from jail or prison for prior offenses; that one offense (theft) occurred after N.J.'s birth; and
that three of his offenses were for violence against the very woman who would become N.J.'s mother and who was
the mother of another child to whom appellant's parental rights had been terminated for, among other things,
endangerment. In fact, two of appellant's assaults against his common-law wife occurred when she was pregnant
with their first child, and a third assault against her occurred only two and a half months before the decree
terminating his rights to that child was signed. Additionally, appellant's counsel told the court that appellant was
once again jailed for an unspecified offense at the time of the hearing, advising that appellant had refused to be
bench-warranted for the hearing, contrary to counsel's advice, because appellant "wanted to conclude his
criminal matter up there." The trial court could reasonably have read that appellant's refusal to appear for his
hearing, despite the advice to attend under a bench warrant, itself showed lack of interest in the case or in N.J.

All of the above was relevant to Holly factors (h) (that the existing parent-child relationship is not a proper one)
and (c) (emotional and physical danger to the child in the future). Termination of parental rights should never
become an additional punishment for the parent's imprisonment. See In re C.T.E., 95 S.W.3d at 466. Here,
however, appellant's criminal history was lengthy, was repeated, resulted in appellant's incarceration for periods
ranging from a few days to months to years, and evidenced repeated violence toward the child's mother, who was
pregnant with another child during two beatings. Under these circumstances, and despite TDFPS's failure to
present any evidence of the remaining Holly factors, we hold that the trial court could have formed a firm belief or
conviction that termination was in the best interest of N.J. See Callahan v. Brazoria County Children's Protective
Servs. Unit, No. 01-01-00916-CV, 2003 WL 21299952, at *10 (Tex. App.--Houston [1st Dist.] June 5, 2003, no
pet.) (memo. op.) (in overruling challenge to factual sufficiency of evidence showing best interest, considering, in
addition to evidence that proposed placement was safe and appropriate, that father was violent towards child's
mother, was imprisoned for having had sexual relationship with underage girl, smoked marihuana before
incarceration, and was convicted of offense of unauthorized use of vehicle), but see In re C.T.E., 95 S.W.3d at
464, 466 (discounting importance of father's criminal history because father would soon be released and crimes
were not type from which danger to children's safety could be inferred, when total number of crimes was four over
11-year period, and when only one offense was assault of children's mother).

In support of his factual-sufficiency challenge, appellant relies on the statements of N.J.'s paternal grandmother
as to the conditions of the temporary placement of N.J. with family in Maryland. However, the grandmother did not
testify: rather, she spoke informally with the trial court before the parties began presenting evidence, and neither
party called her as a witness. Accordingly, her statements were not evidence. See Cauble v. Key, 256 S.W. 654,
655 (Tex. Civ. App.--Austin 1923, no writ) ("'Testimony' has been defined as a statement made by a witness
under oath in a legal proceeding.").

CONCLUSION

We overrule appellant's sole issue and affirm the judgment of the trial court.

Sherry Radack

Chief Justice


Panel consists of Chief Justice Radack and Justices Bland and Massengale.

1. The prior child was also the son of appellant and Jennifer J. The undisputed evidence showed that the prior termination decree
was based on Texas Family Code sections 161.001(1)(E) (endangerment), 161.001(1)(N) (constructive abandonment), and
161.001(1)(O) (failure to comply with court order).

2. TDFPS's counsel represented to the court that that a home-study had been done in N.J.'s temporary Maryland home, but neither
she nor the court could locate the report. The record contains a "Permanency Plan and Permanency Progress Report," dated before
the hearing and filed the same date as the hearing. That report indicates that "[t]he current placement of the child [in Maryland]
continues to be safe and appropriate because the caregivers have been evaluated and found to be capable of providing the child
with a safe, secure, protective, nurturing environment, as well as meeting the child's emotional and mental needs." However, the
report was not admitted into evidence or discussed. Accordingly, we cannot consider it in our sufficiency review.

3. The complaint to which appellant pleaded guilty alleged that he had slapped N.J.'s mother, tripped her, and beaten her "all over
her body" with a belt.

4. The complaint to which appellant pleaded guilty alleged that he had beaten N.J.'s mother with a belt (as he had done in April of
that year).

5. The complaint to which appellant pleaded guilty alleged that he had struck N.J.'s mother on and about her head and had seized
her head and torso with his hands.

6. Appellant's community supervision was revoked in 1992 for the offense of giving a false report to police, and a sentence of 5
years was imposed.