Opinion
No. 04-15-00713-CV
05-04-2016
IN THE INTEREST OF A.J.V., a Child
MEMORANDUM OPINION
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01902
Honorable Richard Garcia, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
A.V., whom we will refer to as "Father," appeals the trial court's order terminating his parental rights to his child, A.J.V. In one issue, he challenges the legal and factual sufficiency of the evidence to support the finding that termination was in the best interest of the child. We affirm the trial court's order.
BACKGROUND
Seven witnesses were called to testify at the bench trial. Alisha Thompson, the investigator for the Department of Family and Protective Services, testified that the Department received a call with concerns about A.J.V. because her mother was in jail for possession of a controlled substance at the time she went into labor. A.J.V.'s mother has a history of drug use and previously had five other children removed from her care. A.J.V. was born prematurely on August 4, 2014, and the Department was appointed her temporary managing conservator on September 3, 2014.
Father testified that he is a convicted adult sex offender and must register as such for life; he stated that he believes he is prohibited from visiting parks. In regards to his court-ordered service plan prepared by the Department, Father stated he completed therapy, parenting classes, a psychosocial evaluation, and maintained a house. He further maintained that he visited A.J.V. weekly and consistently tested negative for drugs throughout the case. Father stated that his visits with A.J.V. went well. Father was not given much information by the Department regarding the child's medical conditions.
Father testified that he was incarcerated twice during the pendency of the case. He was incarcerated in September 2014 and again in May or June 2015 for parole violations. Father's parole officer, Juan Valdez, testified that Father could be arrested if there is a third violation and his parole could possibly be revoked. Father was not employed at the time of trial, but was looking for a job and waiting to hear whether he was qualified to receive disability benefits. Father testified that his family would support him financially and emotionally. Specifically, he stated that his niece would be able to care for A.J.V. should he be incarcerated again. A positive home study was conducted for the temporary placement of the child in Father's niece's home. His niece testified she knew about A.J.V.'s health issues and was willing to care for and raise A.J.V.
Heather D. intervened as a foster parent in this case. Heather testified that A.J.V. has been in the care of her and her spouse since she was nine days old. Heather and her spouse are both paramedics. Heather detailed A.J.V.'s physical and medical needs. She stated that A.J.V. has several medical and physical needs including: (1) possible exposure to HIV and taking the drug AZT to reduce the chances of becoming HIV-positive; (2) Hepatitis C; (3) asthma; (4) problems swallowing and eating and constipation; and (5) difficulty meeting developmental targets requiring six hours of physical and occupational therapy per week. Because of her needs, A.J.V. must attend three to four doctor appointments every month. Heather further testified she plans to adopt A.J.V. upon termination of Father's parental rights, but that she would be willing to work with Father to help A.J.V. if termination were not granted.
Alejandra Rodriguez, the visitation supervisor, oversaw about twenty visits between A.J.V. and Father. She testified that she did not see much improvement from Father in his interactions with A.J.V. and that Father was not confident in caring for his child. She stated she could tell Father loved and cared for A.J.V., but he did not really take the initiative to care for her properly based on her needs. Gabriela Alonzo, the Department caseworker, testified that Father did not complete his service plan because he failed to meet the goals of (1) showing the ability to parent and protect the child; (2) following medical advice for the child; (3) learning and using parenting practices that meet the emotional and developmental needs of the child; (4) maintaining safe and hazard-free housing and providing protection, food, and shelter for the child; (5) demonstrating the ability to maintain supportive relationships that are beneficial to the family; and (6) demonstrating an understanding of child development and appropriate expectations. Alonzo stated that she did not believe Father was a danger to A.J.V., but she was concerned about him being able to care for her appropriately. She further stated that Father did not attend any of A.J.V.'s medical appointments, but conceded that she did not always inform him in advance of when they would take place. Alonzo felt the Department had done everything it could to work with Father.
At the conclusion of trial, the court terminated Father's parental rights pursuant to Texas Family Code section 161.001(b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West Supp. 2015). The trial court also found that termination of the parent-child relationship was in the best interest of the child. Id. § 161.001(b)(2). Father now appeals, challenging the sufficiency of the evidence to support the finding that termination was in the best interest of the child.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Family Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See id. § 161.001(b)(1), (2); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re E.N.C., 384 S.W.3d at 802. "'Clear and convincing evidence' means the measure or degree 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." TEX. FAM. CODE ANN. § 101.007 (West 2014). "Due process demands this heightened standard because termination results in permanent, irrevocable changes for the parent and child." In re E.A.G., 373 S.W.3d 129, 140 (Tex. App.—San Antonio 2012, pet. denied).
In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we view all the evidence in the light most favorable to the trial court's findings and judgment to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the findings are true. In re E.N.C., 384 S.W.3d at 802. "A reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so" and "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
In reviewing the factual sufficiency of the evidence to support the termination of parental rights, a court "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266. "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 A.Q.W., 395 S.W.3d 285, 287 (Tex. App.—San Antonio 2013, no pet.) (quoting In re J.F.C., 96 S.W.3d at 266); see TEX. FAM. CODE ANN. § 161.001(b).
APPLICABLE LAW
In reviewing whether the trial court's best interest finding is supported by sufficient evidence, we consider, among other evidence, the non-exclusive factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include, but are not limited to: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (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 held by the individuals 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. See id. The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. See id. On the other hand, the presence of meager evidence relevant to each factor may not support such a finding. See id.
DISCUSSION
I. The Desires of the Child
A.J.V. was approximately 14 months old at the time of trial. "When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent." See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A.J.V. has been living in the care of a foster family since she was nine days old. Judith Dicky, a counselor, testified that A.J.V. has bonded with the foster parents and their two children. Her recommendation was that A.J.V. remain in the care of the foster family because of the bond they have formed and because of their ability to care for her physical and medical needs. Furthermore, A.J.V. has spent minimal time with Father. A.J.V. has never lived with Father and has only spent time with him during supervised visits.
II. The Present and Future Emotional and Physical Needs of the Child
As noted above, A.J.V. has several medical and physical needs which require time and attention. Additionally, A.J.V. is a young child who requires constant emotional and physical support. See In re J.G.M., No. 04-15-00423-CV, 2015 WL 6163204, at *3 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem. op.) (recognizing the constant attention required to meet the needs of a young child). There are two children in the foster home with whom she can play and interact. The foster parents are both paramedics and are able to provide for her medical and physical needs. It would be difficult for Father to meet A.J.V.'s medical and physical needs as he is currently unemployed and has no means by which to provide financial support for A.J.V. Father has not attended any of A.J.V.'s medical appointments and does not understand the full extent of A.J.V.'s medical and physical needs. Further, it would be difficult to meet A.J.V.'s emotional needs while in Father's care. There are no children in Father's home and Father must register as a sex offender for life, which limits his ability to take A.J.V. to places where she could play and interact with other children. Also, while Father has completed a parenting class, he has failed to apply what he learned in caring for A.J.V. during supervised visits.
III. The Present and Future Emotional and Physical Danger to the Child
By all accounts, Father loves and cares for A.J.V. and all visits between him and his daughter were appropriate. However, Father does not understand the extent of A.J.V.'s medical needs, and A.J.V. could suffer harm if her medical needs are not met.
IV. The Parental Abilities of the Individuals Seeking Custody
As stated above, Father completed a parenting skills course but has failed to apply what he learned in that course. While the visitation supervisor testified that she saw improvement in Father's parental abilities, she stated she did not believe Father took the initiative to seek out ways to care for A.J.V. and that he was still having problems with basic tasks such as changing a diaper. The foster parents, on the other hand, have shown the necessary parental abilities to care for A.J.V. The record shows that A.J.V. has developed well while in the foster parents' care. Additionally, their training as paramedics enables them to meet A.J.V.'s medical needs.
V. The Programs Available to Assist These Individuals to Promote the Best Interest of the Child
Ms. Alonzo testified that a family service plan was developed for Father and he failed to complete it. Father received counseling from a therapist, but the therapist was not licensed to provide therapy to sex offenders as required by the service plan. Father completed one parenting class and was scheduled to start a second class, but was incarcerated for a parole violation before he could start. Father completed several drug assessments and tested negative on all of them. Further, Father failed to attend any of A.J.V.'s medical appointments and has not taken the initiative to learn the full extent of A.J.V.'s medical needs. The foster parent testified she would be willing to work with Father and provide assistance if his parental rights were not terminated.
VI. The Plans for the Child Held by the Individuals Seeking Custody and the Stability of the Proposed Placement
Father testified that he would like to have A.J.V. either live with him in his home or, alternatively, with his niece in her home. A home study was conducted on Father's niece's home and the results were positive for short-term placement. Father argues that although he may not be capable of caring for A.J.V. currently, his niece is willing and capable of caring for her. He further argues that his mother would also help care for A.J.V. Ms. Alonzo testified as to the condition of Father's home. She stated that the home was cluttered and it did not appear he was taking steps to prepare for A.J.V. to live there. Evidence was presented that A.J.V. has thrived while in the care of her foster parents and that they plan to adopt A.J.V.
VII. 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
Father failed to complete his service plan on several grounds, and was incarcerated for a total of four months during the pendency of the case. While the Department felt that Father loved and cared for A.J.V., he did not demonstrate appropriate parenting capabilities and did not show that he is fully capable of caring for A.J.V. on his own.
Applying the applicable Holley factors to the evidence before us, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Father's parental rights was in A.J.V.'s best interest. See Holley, 544 S.W.2d at 371-72. Therefore, we hold the evidence was both legally and factually sufficient to support the best-interest finding. See id.; TEX. FAM. CODE ANN. § 161.001(b)(2).
CONCLUSION
We overrule Father's sole issue on appeal and affirm the order of the trial court.
Rebeca C. Martinez, Justice