### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03- 09 -00 437 -CV

M ar ia E st he r Oz una , A ppe lla nt

v. Texas Depart m ent of Fam ily and P rote ctive Service s , Appellee

F ROM THE DISTRICT CO URT OF TOM GREEN COUNTY , 51ST JUDICIAL DISTRICT NO. A-07 -01 98- CP S , HO NORAB LE JAY K. WEATH ERB Y , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
Maria E sther Ozuna appe als from the tria l court’s final dec ree terminating her pa re nta l r ig hts to f

our o f h e r c hil dr e n, M. E. R., J.M.R ., T. D. O., a nd P.D .O . A t th e tim e of

tr ia l in Fe bruar y 2009, M.E.R. was ten, J.M.R . was nine, T.D .O. was six , and P.D.O. wa s five. The Texas Depa rtment of F amily and P rotec tive Service s first beca me involved with Ozuna and her children in 2 00 1, a ft e r r e c e ivi nga

re po rt of se xua l a bu se . T hat a lle g a tio n wa s in ve sti g a te d a nd c los e d w ith a disposition of “Ruled Out” and w as followed by two other a lleg ations in 200 2 an d one in 2006, which we re a lso c losed with dispositions of “Ruled Out” or “Una ble to Deter

mine.” In J uly

2006, the Departme nt t oo k p os se ssi on of Ozuna ’s y oung e st d a

ug hte r, A. O. , w ho wa s n ot a pa rt of thi s proce eding , and plac ed her with a re lative. The f

our childre n who ar e the subjec t of this procee ding
we re le ft in O zun a ’s c are , a

nd Ozuna sig ne d a

sa fe ty pla n a g re e ingto c oo pe ra

te wi th t he De pa rtme nt. I n J uly and August 2007 , t h e De p ar tment rec eived r eports that Ozuna wa s neg lecting the2

fo ur c hil dr e n; a llo wi nghe r b ro the r, a re g ist e re d se x off e nd e r, to c are fo r t

he m; u sin g ill e g a l dr

ug s; and hitting the c hildren. The D epar tment conducted a

n investigation and took possession of the children in August 2007. The Depa rtment could not locate the father of M.E.R. a nd J .M.R. but
aver red that he had r ece ntly

been arr ested for failing to r eg ister as a sex off ender
. The fathe r of A.O., T.D.O. , an d

P. D
. O
. h a d

b e e nc o n v ic te d

tw ic e o f a s s a u lt in g a f a mi ly me mb e r an d o n c e o f s e x ual assault of a

child and, at the time the childre n wer e re moved, was inc arc erated for the most rece nt assault, which wa s aga i n s t Ozuna, and the se x ual assault; he wa s still incar cer ated at the time of the final he aring
.

I n J une 2009, the trial court held a final hear ing. A Depa rtment ca seworke r testified that Ozuna had a longhistory of being involved with me n who phy sically abused her, often in the pr e se nc e of

the c hil dr e n. Th e c a se wo rk e r t e sti fi e d th a t expos ur e to d ome sti c vio le nc e is h arm fu l to
c h il dr e nb e c a

u s e th e y le ar nth a t a b u s e is n o r

ma l a n d e xp e c te d
. O zun a ’ s h u s b an d , th e f a th e r of he r young e st thr e e c hil dr e n, wa s c on vic te d o f and imp ri so ne d f or a bu sin g Ozuna . A ft e r h is incar cer ation, she became involved with another a busive man and the n lied to the Depa rtment about the re lationship, insi sting they wer e just fri en d s. The ca seworke r stated that Ozuna’ s continuing involvement in abusive re lationships led the Depar tment d ec i de to see k termination instead of
re un if ic a tio n be c a

us e Ozuna wo uld be un a

ble to pr ote c t the c hil dr e n if sh e wa s unw ill ingor un a ble to extricate herself from abusive relationships. The casewor ker also testified that althoug h Ozuna initially made pr og ress in mee ting the D epar tment’s require ments, about six months before the final he ari ng , s he sto pp e d in fo rm ingthe De pa rtmen t w he n s he c ha

ng e d jo bs , li e d a

bo ut h e r a dd

re ss, stopped paying $50 a month in required c hild support, and stopped visiting, ca lling, or w riting to the3

c hil dr e n. B e c a

us e Ozuna

lie d a bo ut he r a dd

re ss, the De pa

rtme nt wa s ne ve r a

ble to c on du c t a

sa fe ty revie w of the house she was renting at the time of trial. Ozuna was terminated from p ar enting training , substance a

buse counse ling, a

nd individual coun seling , althoug h she later completed pare nting tra ining throug h a diffe rent provide r and obta ined a s p onsor for a nd worke d throug h a Twelve Step prog ram. Finally , the case worke r testified that Ozuna lied to the Depa rtment about her brother ha

ving a cce ss to the children a nd that the Depa

rtment lear

ned that they

had in fa ct bee n left in his care , including ove rnig ht; t h e D e p a r tme nt did not, however, f

ind evidence that Ozuna’s brother had abuse d the childre n.

After their re m o v al , the childre n stated that Ozuna had le ft them alone w ithout enoug h food, and the two older g irl s al l ege d that they had bee n sexually

assaulted by

Ozuna’s husband, the father of A .O., P.D.O., and T.D .O. The the rapist for M.E.R. a nd J .M.R. testified that the g ir ls d isp lay e d b e havio r c on sis te nt w ith havin g be e n se xua lly a bu se d. I n Apr il 2 00 8, M. E. R. t old her the rapist that she did not want to see Ozuna any more, explaining that the visits made past issues
re surf a c e ; th e De pa

rtme nt c e a se d vis itatio n be tw e e n M. E. R. and Ozuna . M. E. R. and J.M.R . w ro te thera peutic letter s to Ozuna in which they stated t hat t hey loved her but wanted her to chang e and take c are of them instead of car ing mor e about the men she was dating
. The older g irls’ thera pist and the Depa rtment case worke r testified that the children’ s self-e steem and behavior had improved since the ir re mov a l and

that te rm inatio n a

nd a do pti on wa s in the ir be st i nte re sts
. Ozuna a dmi tte d to a

lon g his tor

y of be ingph y sic a l a

bu se d, sta rt ing wh e n sh e wa s a child. She also testified t hat s he wa s repe atedly sexually abused by

her stepf ather as a c hild and once as an adult by her unc le. She testified that althoug h she had ma de bad c hoices in her past, she had4

lear ned how to ma

ke better choice s and that she was a g ood person and a g ood pare n t
. Oz una admitted that both f

ather s of her children wer e phy sically abusive, sometimes in the presenc e of the children, a s was her

last boy friend, w ith whom she broke up two wee ks befor e the final hear ing. She admitted that she lied to the De partment a bout her boy friend, e x plaining that she knew the relationship was a bad one . She said she broke off c ommunicatio n wi t h the Depa rtment and the children to prote ct her self fr om the pain of having the children r emoved. Ozuna testified that she was supporting herse lf as a nur se’s assistant, was renting a hous e that was saf e and a ppropriate for
c hil dr e n, ha d h e r o wn

tr ans po rt a tio n, and

wa s h e a lth y

and ind e pe nd e nt. At the c on c lus ion of the e vid e nc e , the tr ia l c ourt state d that thi s wa s a ve ry dif fi c ult
case but that the evidenc e we ighe d in favor of termination. The c ourt signe d an orde r terminating Ozuna’s par ental rig hts, as well as the pa renta l rig hts of the children’s fathe rs. The court found that there was clear and convincing evidence that termination was in the c hildren’s be st interests and that Oz u n a p l ac edo r a l l o we d t h e c h i l dre nt o re m ai n i n c o n d i t i o n s t h at en d an ger edt h ei r w el l -b ei n g, place d or allowe d the childre n to rema in with people who eng ag ed in conduct that e ndang ere d the
c h il d r e n ’ s w e l l

- b e i n g , f

a i l e d t o s u

p p o rt t h e c h i l dr e n d

u r i n g a o n e - y e ar p e r i o d e n d i n g w i t h i ns ixmon ths of

the fi lin g of

the pe tit ion , c on str

uc tiv e ly a ba nd on e d th e c hil dr e n f

or a t least six mo nth s, and fa iled to comply

with a cour

t order e stablished to reg ain custody of the c hildren. See Te x. F a m. Code Ann. § 161.001(1) (D), ( E), (F ), (N) , (O), ( 2) (West Supp. 2009).

Ozuna filed a notice of appe al and state ment of points on appea l, complaining that the evidenc e wa s insufficient to support the expressed statutory g rounds for te rmination, as well as the t ri al cour

t’s finding that termination was in the c hildren’s be st interests. On appe al, howeve r,Ozuna’s attorney argues that the evidenc e is insufficient to support a f inding that Ozuna 1 failed to support the c hildren for a y ear befor e the De partment’s pe tition was filed. Howeve r, beca use the e vidence is suf

ficient to suppor

t the other g rounds, the attorney conclude d there was no harm in the trial c ourt’s including that g round in its termination decre e. We ag ree . Th is a nd oth e r T e xas c ourt s have he ld that it is a pp ro pr ia te in a pa

re nta l te rm inatio n c a se 2 to file a brie f asse rting that the appe al is frivolous. See, e .g. , Matthews v. Texas Dep’ t of Protective & Re gu lator ySe rv s. , N o. 03 -0 4- 00 18 4- CV , 2 00 5 T e x. Ap p. L EX I S 12 31 , at *2 ( Te x. Ap p. —A us tin F e b. 17 , 2 00 5, no pe t.) (m e m. o p. ); In re D.E.S. , 1 3 5 S
. W .3d 326, 329 (Tex. App.—Houston [14t h D ist .] 20 04 , n o p e t.) ; In re K.D. , 217 S.W .3d 66, 67 (Tex. A p p . — Houston [1s t Dist.] 2003, no pet.). 5 Ozuna’s appe llate attorne y has filed a

brief stating that, a fter a

thoroug h revie w of the rec ord, he has
c on c lud e d tha t the a

pp e a l is fr ivo lou s. The brie f pre sents a thoroug h and prof essional eva luation 1 of the re c or d d isc us sin g and de mon str a tin g wh y

the re are no argua

ble g ro un ds fo r r e ve rs a l. A copy 2 of the brie f wa s delivere d to Ozuna, who has neither soug ht other counse l n or filed a pro se br ief. The De partment filed a

letter re spons e s t at i ng that it had revie wed the r ecor d and ag ree d that the
e vid e nc e is s uf

fi c ie nt a nd that th e re are no argua

ble g ro un ds fo r r e ve rs a l. We h a ve c ondu cte d ou r ow n r e vie w o f t he re c or d a

nd a g re e that th e a

pp e a l is frivolous. We theref

ore a ffirm the tria l court’s de cre e of te rmination. We gr ant counse l’s motion to withdraw a s attorney

of re cord.

__________________________________________

David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: May

7, 2010