Opinion
No. 04-15-00549-CV
02-03-2016
IN THE INTEREST OF A.G., a Child
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01476
Honorable Charles Montemayor, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Marialyn Barnard, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
Elizabeth appeals the trial court's termination of her parental rights to A.G. Her sole issue on appeal is there is legally and factually insufficient evidence that termination of her parental rights is in A.G.'s best interest. We affirm the trial court's judgment.
To protect the identity of the minor child, we refer to the child's mother by her first name and to the child by the child's initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). --------
BACKGROUND
A.G., who was born in May 2014, was Elizabeth's sixth child of seven. Prior to A.G.'s birth, Elizabeth's parental rights to four of her children were terminated because of her use of a controlled substance. Elizabeth gave another one of her children up for adoption. After A.G. was born, Elizabeth contacted the Department because she planned to give A.G. up for adoption, too, but she changed her mind.
The Department thereafter removed A.G. from Elizabeth for reported neglectful supervision based on her suspected drug abuse, and the Department placed A.G. with a foster family. During the proceedings in the trial court, Elizabeth concealed her seventh pregnancy from the Department for several months, and when the baby was born, both Elizabeth and the baby tested positive for cocaine. The trial court heard testimony from five witnesses: CPS caseworker Ismael Banda; CPS investigator John Propes; A.G.'s father; Elizabeth; and A.G.'s foster mother Mary S. The trial court signed an order terminating Elizabeth's parental rights to A.G. on several grounds, including her endangerment of A.G. and her use of a controlled substance. The trial court also found by clear and convincing evidence that termination of Elizabeth's parental rights is in A.G.'s best interest. Elizabeth appeals.
A.G.'S BEST INTEREST
Elizabeth's sole issue is that there is legally and factually insufficient evidence to support the trial court's best-interest finding. A judgment terminating parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b), (c) (West Supp. 2015). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine whether 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). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. But we may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the heightened burden of proof by clear and convincing evidence. Id.
When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, 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." Id.
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. Id. "Evidence that the parent has committed the acts or omissions prescribed by section 161.001 may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d at 684 (internal citation omitted).
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
At the time of the trial, A.G. was just over one year old. When a child is too young to express his desires, the factfinder may consider whether the child has bonded with its current caregiver, is well-cared for, and whether the child has spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A.G.'s foster mother Mary S. testified A.G. was placed with her four weeks after A.G. was born. She also testified A.G. has "occasional night terrors," was "delayed in speech," and had been hospitalized once with a respiratory virus. CPS caseworker Banda testified A.G. appeared bonded with his foster family and "when he cries he looks for the foster mom." He further testified the foster family has gone to all of A.G.'s medical appointments and "has met all his needs."
Moreover, "[p]arental drug abuse reflects poor judgment and may be a factor to be considered in determining a child's best interest. In re A.L.W., No. 01-14-00805-CV, 2015 WL 4262754, at *12 (Tex. App.—Houston [1st Dist.] July 14, 2015, no pet.) (mem. op.). A parent's inability to maintain a lifestyle free from criminal activity is also relevant to determining a child's best interest. See In re D.M., 58 S.W.3d 801, 817 (Tex. App.—Fort Worth 2001, no pet.). Elizabeth does not challenge the trial court's finding that she used a controlled substance in a manner that endangered A.G.'s health or safety. CPS caseworker Banda testified Elizabeth had a history of cocaine use. The order terminating Elizabeth's parental rights to four of her children was also admitted into evidence. That order showed Elizabeth's rights were terminated on several grounds, including her use of a controlled substance that endangered her children's health or safety and her failure to complete a substance abuse program or relapsing after having completed such a program. Banda stated Elizabeth "continues to use substances," and that she refused drug tests from March to June 2015. He testified Elizabeth admitted to using cocaine during that time. Banda further testified that from March to June 2015, Elizabeth was pregnant and her seventh child was "born drug addicted."
Mary S. testified she could not claim A.G. as a dependent for the 2014 tax year because someone had already used A.G.'s social security number. Banda testified he was concerned that Elizabeth had charges pending for theft between $20,000 and $100,000 in welfare fraud, Elizabeth was somehow buying drugs, and she had not provided him "with check stubs or any proof of stable employment." CPS investigator Propes testified Elizabeth was arrested for stabbing A.G.'s father. Elizabeth admitted she "was arrested for deadly weapon" [sic] but denied she was arrested for stabbing A.G.'s father. Elizabeth declined to answer questions about her criminal charges. Banda further testified Elizabeth maintained a relationship with A.G.'s father, who was a sex offender and "was in and out of incarceration." A.G.'s father's "criminal cases," which included judgments of conviction for indecency with a child and for failing to register as a sex offender, were admitted into evidence. See In re T.H., No. 04-97-00765-CV, 1998 WL 812576, at *3 (Tex. App.—San Antonio Nov. 25, 1998, no pet.) (not designated for publication) (considering mother's relationship with sex offender as weighing in favor of trial court's best-interest finding).
There was also evidence relating to Elizabeth's parental abilities, the stability of her home, and acts or omissions indicating that the existing parent-child relationship is not a proper one. See Holley, 544 S.W.2d at 372. Banda and Mary S. testified Elizabeth did not provide any financial support for A.G. after A.G. was removed. Elizabeth testified she did provide financial support through her employer's income withholding, but a copy of one of Elizabeth's earning statements, which was admitted into evidence, did not reflect that any income was withheld by Elizabeth's employer. Elizabeth also admitted she did not have housing and was living with her grandfather.
Mary S. testified Elizabeth missed numerous visits with A.G., and the trial court admitted an exhibit noting the visits Elizabeth missed and whether Elizabeth provided an explanation for missing the visit. The exhibit showed that between February and July 2015, Elizabeth cancelled eight appointments. Elizabeth testified she could not make her appointments for medical reasons, but the exhibit reflected that only two of the eight appointments were missed because Elizabeth was either ill or had a doctor's appointment. Banda testified that when Elizabeth did visit with A.G., she brought Cheetos for him as a snack. Banda stated he asked her not to give A.G. Cheetos and stated he believed Cheetos were not appropriate for an infant, but Elizabeth told him "it was her son and she could give him something to eat." However, Banda admitted he had no other concerns about Elizabeth's visits with A.G.
Viewing the evidence in the light most favorable to the finding, we conclude the trial court could have formed a firm belief or conviction that termination of Elizabeth's parental rights is in A.G.'s best interest. See In re J.F.C., 96 S.W.3d at 266. The disputed evidence that the trial court could not have credited in favor of the finding is not so significant to prevent the trial court from reasonably forming such a firm belief or conviction. See id. Therefore, we hold there is legally and factually sufficient evidence that termination of Elizabeth's parental rights is in A.G.'s best interest.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice