Opinion
No. 05-07-01196-CV
Opinion Filed April 23, 2008.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-54164.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Nicole D. Morris appeals the trial court's judgment terminating her parental rights to her daughter, A.J.M. In two issues, she argues the evidence is legally and factually insufficient to support a finding that termination of her rights was in the child's best interest. We affirm.
Ginger and Darryl Morris took custody of their two-year-old niece, A.J.M., in October 2005 after the child's mother, Nicole Morris, was jailed on a drug charge. The following month, the couple were named managing conservators of the child and later filed petitions to terminate Nicole's parental rights and to adopt A.J.M. In the petition to terminate, the Morrises alleged, among other things, that Nicole (1) knowingly placed or knowingly allowed A.J.M. to remain in conditions or surroundings that endangered A.J.M.'s physical or emotional well-being and (2) engaged in conduct or knowingly placed A.J.M. with persons who engaged in conduct that endangered the child's physical or emotional well-being. They also alleged that termination of Nicole's parental rights was in A.J.M.'s best interest. After hearing evidence in a bench trial, the trial court terminated Nicole's parental rights and granted the Morrises' petition for adoption.
On appeal, Nicole does not challenge the predicate endangerment grounds for termination. Rather, she only challenges the legal and factual sufficiency of the evidence to support the best interest finding.
At the time of trial, Nicole was serving a seven-year prison sentence for possession of methamphetamine. Evidence showed that Nicole was first arrested for misdemeanor possession of marijuana and felony possession of methamphetamine in February 2003. While in jail, she learned she was pregnant. Nicole, then 22, was sentenced to 72 days in jail on the marijuana charge and received deferred adjudication probation on the methamphetamine charge.
After her release from jail and for about eighteen months after A.J.M.'s birth, Nicole lived with her mother, Brenda Pikkarainen. Pikkarainen testified that Nicole had always been "very immature, rebellious." According to Pikkarainen, Nicole began drinking at age thirteen or fourteen and later began using drugs. Pikkarainen said that after giving birth to A.J.M., Nicole was like "a small girl playing with a baby doll." When she "grew tired or lost interest or was distracted," it was up to someone else to care for A.J.M. Nicole would stay out late at night and sleep all day, leaving A.J.M. in the care of various people.
Nicole ultimately moved out of Pikkarainen's home after the two argued about Nicole failing a drug test. A few months later, Nicole was arrested and jailed on the 2005 possession of methamphetamine charge, which ultimately led to the revocation of her probation and her conviction on the 2003 felony methamphetamine charge. At the time, Nicole refused to tell authorities or her family A.J.M.'s whereabouts. Several days later, the child was found at the home of Larry Rodriguez, who had a previous drug conviction and was the man Nicole was with when she was arrested for the first time in 2003.
Since living with the Morrises, Pikkarainen said A.J.M. is in a more structured environment with "specific get-up times, go-to-bed times, meal times, and nap times." Additionally, she said, A.J.M. is in a "learning" environment at a day care center for children her age. She said A.J.M. has "flourished," is not as withdrawn, is more social, and is happy. Although Pikkarainen believed Nicole loved A.J.M., she also believed that termination of parental rights was in A.J.M.'s best interest. When asked if she believed Nicole could absorb knowledge from parenting classes and apply what she has learned, Pikkarainen said she believed Nicole "would require more than parenting classes." When asked what was needed, Pikkarainen said "[t]ime."
Ginger testified that when she and her husband took custody of A.J.M., they were concerned about A.J.M.'s emotional development. In particular, she said A.J.M. would stare off into space for twenty to thirty minutes at time "like she was catatonic in a way." A.J.M. had a difficult time "just functioning." She could only say about five words, could "barely walk," and was "pretty much emotionless." A.J.M. had trouble going to sleep at night, eating, and adjusting to routine. Additionally, she had bonding issues. Ginger said that while A.J.M. was very fearful of large men, she would cling to strangers. Physically, A.J.M. had hearing damage. After about six months, Ginger said A.J.M. adjusted to a regular routine that included regular bedtime hours, meal times, and bath time. Additionally, she no longer clings to strangers.
Ginger believed termination of Nicole's parental rights was in A.J.M.'s best interest because she would have a "permanent mommy and daddy" without the underlying risk that "she may be jerked out of our lives or us out of her life."
Like his wife, Darryl testified that he believed termination was in A.J.M.'s best interest so that the child would have a permanent home and could have "the stability of not having to worry about getting . . . put back in a place that she was in before."
Darryl, who is Nicole's brother, testified that he had observed Nicole throughout her life, including adulthood. Darryl testified to one particular incident that occurred after A.J.M.'s birth. He heard Nicole on the telephone saying that she "had so many rocks that she couldn't fit them all in — in her hands." Shortly thereafter, a truck pulled up outside, and Nicole, with A.J.M. on her hip, went outside and handed something to the person in the vehicle and the person gave Nicole money. Darryl testified that drugs and partying appeared to be Nicole's first priority. He said she would stay out all night and did not maintain a stable work history or stable home environment. None of that changed after the birth of A.J.M. According to Darryl, he would go to his mother's house and Nicole and A.J.M. would still be sleeping at noon. He never observed any routine for A.J.M. while she was in Nicole's care and said Nicole did not make her a priority.
When A.J.M. came to live with him and his wife, he said she was "very unemotional" and did not "really interact with other people very well." He said she had no personal boundaries and had trouble adjusting to a routine. Now, he said, A.J.M. acts "a lot different," explaining that she seems happier and "not as tuned out."
Nicole admitted she had a long history of alcohol and drug use, which began as a teenager. At first, marijuana was her drug of choice, but she eventually replaced it with methamphetamine. She testified she had an extended period of sobriety, from December 2002 to August 2005, although she admitted she was arrested for possession of marijuana and methamphetamine during that time. Initially, she denied she associated with people who did drugs after A.J.M. was born, but then admitted she was arrested for drug possession in 2005. She denied using drugs while pregnant with A.J.M. and also denied ever selling drugs. After she gave birth to A.J.M., she used drugs but not when A.J.M. was in her care. When she would use drugs, she left A.J.M. with Larry Rodriguez, who she knew had been convicted and served time on a drug offense. She did not believe Rodriguez was using drugs then and said he was a "recovered addict, and he was in good standing with his job and his home, and as a citizen."
Before she was returned to Collin County for this trial, she said she had completed the first phase of a drug treatment program that took six to nine months to complete. While in Collin County Jail, she said she had participated in parenting classes, where she learned "to be more selective of who I let care for my daughter" and "some better eating habits." She planned to continue parenting classes once she was returned to prison. If she served her full term, Nicole said she would not be released from prison until 2012, and, when asked, did not know how old A.J.M. would be at that time. She said the earliest she could expect to be released was six to nine months.
Once she is released, she said she planned to establish a career as a motorcycle technician and to seek and rebuild a relationship with A.J.M. Although she agreed she had not seen A.J.M. for about half of the child's life, she said it was "not necessarily" because of choices she had made. Rather, she blamed the Morrises, in part, saying, "[a]nd upon the aggreance (sic) of my brother and his wife of why I haven't seen her." When asked if she believed if it was in A.J.M.'s best interest that "at some time in the future, some distance far away," she step in and take primary care of A.J.M., she responded "[e]ventually." She agreed that her drug use had "most definitely" had an impact on A.J.M.
Nicole's only witness was Charlie Sermon, who testified that Nicole and A.J.M. were living in a trailer on his property at the time Nicole was arrested. Nicole was working at Sonic. He testified he never saw Nicole engage in behavior that was a danger to A.J.M. and said Nicole "doted on her." Although Sermon knew Nicole had been in trouble with drugs, he believed she had "learned her lesson pretty well."
In reviewing the legal sufficiency of the evidence to support a termination finding, we look at all of the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction about the truth of the allegations. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). We assume the factfinder resolved any disputed facts in favor of its finding, if a reasonable factfinder could so do, and disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. at 266. We do not, however, disregard undisputed evidence that does not support the finding. Id.
In reviewing the factual sufficiency of the evidence, we must give "due consideration" to any evidence the factfinder could reasonably have found to be clear and convincing. Id. (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We must consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
A best interest finding must be based on clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp. 2007). Clear and convincing evidence means "the measure of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. at § 101.007 (Vernon 2002). The burden of proof is upon the party seeking termination of parental rights. In re J.F.C., 96 S.W.3d at 265-66.
The relationship between a parent and a child is one of constitutional dimensions, and we must recognize the presumption that the best interest of the cihld will be served by preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); Dupree v. Tex. Dep't of Protective Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App.-Dallas 1995, no writ). In determining whether termination was in the child's best interest, we may consider several factors, including (1) the child's desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (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 of omission of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree, 907 S.W.2d at 86. These factors are not exhaustive; some listed factors may not apply to some cases, while other factors not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d at 27. Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interst of the child. Id. Conversely, scant evidence relevant to each Holley factor will not support such a finding. Id. Evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child's best interest. Id. at 28. In addition, the factfinder can give "great weight" to the "significant factor" of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex.App.-Dallas 2007, no pet.); Dupree, 907 S.W.2d at 86.
In her two issues, Nicole argues the record is "utterly scant and lacking that the child would be better off" for the parent-child relationship to be terminated. While she acknowledges that A.J.M. "needed the opportunity to obtain a more stable and safe life" than A.J.M. had with her, she argues this was accomplished with the previous order naming the Morrises as managing conservators, which gave them "complete control" over A.J.M.
We disagree with Nicole's analysis. As this Court has previously recognized, the "need for permanence is the paramount consideration for the child's present and future physical and emotional needs." Dupree, 907 S.W.2d at 87; at 92. Nicole is serving a seven-year prison sentence, and there was no evidence as to a definite release date. Her incarceration makes her future uncertain, which, in turn, leaves A.J.M.'s future uncertain.
Further, the evidence showed that for the first two years of her life, while living with her mother, A.J.M. lived in an unstable, potentially dangerous environment. Nicole's long-standing history of alcohol and drug use is a significant factor to which the trial court could have attached great value in evaluating the best interests of the child. Nicole was in jail on charges of possession of marijuana and methamphetamine when she learned she was pregnant. After she gave birth to A.J.M., she continued to associate with a drug crowd and continued to use drugs. In fact, her brother testified that he believed she sold drugs with A.J.M. on her hip. Nicole admitted that she used methamphetamine while she was the sole caregiver of her daughter, although she said on those occasions, she would leave A.J.M. in the care of Rodriguez, a convicted drug offender.
When she was arrested in September 2005, she refused to reveal A.J.M.'s whereabouts. Ultimately, the child was located at Rodriguez's home. That the child appeared in good health, except for a severe diaper rash in her genital area, does not diminish the poor judgment exhibited by Nicole in leaving her with a known drug offender and refusing to tell her family or authorities where she was located. Whether Nicole has accepted responsibility for her conduct is questionable in light of her testimony that she had a long period of sobriety when she, in fact, was arrested during this alleged period. Moreover, she suggested the Morrises were somehow partially to blame for the fact that she had not seen her daughter in over two years.
Little evidence, if any, reflects positively on Nicole as a mother. Her family testified that she seemed to view A.J.M. as a "baby doll" and did not make A.J.M. a priority in her life. She provided no details of her future plans for A.J.M., other than to seek and rebuild a relationship. That could be due, in part, to the fact she is incarcerated without a definite release date.
For the past two years, the Morrises have cared for A.J.M., providing stability in an otherwise chaotic environment. The Morri1ses and Pikkarainen all testified to the positive improvements seen in A.J.M. She eats better, sleeps better, no longer clings to strangers, and seems happy. We conclude there was legally and factually sufficient evidence of a clear and convincing nature to support the trial court's finding that termination of the parent-child relationship was in A.J.M.'s best interest. We overrule Nicole's issues.
We affirm the trial court's judgment.