Summary
holding where a father only attended four visitations in a 17-month span and attributed his absences to the long distance between his residence and the city where his child resided, his "excuses for failure to comply with a court order and partial compliance do not factor into analysis of the issue of compliance with or satisfaction of a court order."
Summary of this case from In re Interest of F.L.B.Opinion
No. 04-15-00638-CV
04-06-2016
IN THE INTEREST OF A.M.M., a Child
MEMORANDUM OPINION
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-00193
Honorable Dick Alcala, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
INTRODUCTION
Eduardo M. appeals the trial court's judgment terminating his parental rights to a child, A.M.M. Eduardo M. contends the evidence presented was insufficient to support the trial court's findings that (1) he failed to support A.M.M. in violation of a court order; (2) he constructively abandoned A.M.M.; and (3) he failed to comply with the court-ordered Family Service Plan, pursuant to Texas Family Code Sections 161.001(1)(F),(N), and (O), respectively. We affirm the trial court's judgment.
To protect the identity of the minor children, we refer to the children's parents by their first names and last initials and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
PROCEDURAL HISTORY
A.M.M was born to Sierra F. and Eduardo M. on November 26, 2013. At the time, both lived in Rosenberg, Texas, but were not married. A few days following A.M.M's birth, Sierra F. moved to San Antonio, Texas with Sean M. and took A.M.M with her.
On January 27, 2014, A.M.M was admitted to a hospital in San Antonio, at which time it was discovered he suffered from 13 fractured bones, which included an acute spiral fracture of the left humerus, several healing fractured ribs, as well as numerous other injuries. Eduardo M. was not suspected of causing any of these injuries. On January 29, 2014, the Department of Family and Protective Services ("the Department") filed a petition for protection of a child, for conservatorship, and for termination of parental rights. The same day, the Department was designated the temporary managing conservator, ex-parte, on an emergency basis.
The Department was also designated temporary managing conservator of A.M.M.'s half-sister, M.F.M, whose mother is Sierra F. and father is Sean M. Sierra F. relinquished her parental rights to A.M.M. and M.F.M. Sean M. relinquished his parental rights to M.F.M. --------
On February 4, 2014, the trial court held a contested hearing, at which Eduardo M. was present and represented by counsel. During this hearing, the Department was appointed temporary managing conservator of A.M.M., and Eduardo M. was appointed possessory conservator. A temporary order was entered requiring weekly supervised visitation. On March 25, 2014, the trial court held a status hearing, at which Eduardo M. attended by telephone and was represented by counsel. At this hearing, the trial court reviewed a Family Service Plan with Eduardo M.; Eduardo M.'s counsel signed the Family Service Plan; the plan was filed in the record, and; the plan was made an order of the court.
The parties tried the parental-termination proceeding pertaining to Eduardo M. and A.M.M. on July 13, 2015, and August 7, 2015. Following presentation of evidence, the trial court terminated Eduardo M.'s parental rights and awarded the Department permanent managing conservatorship. The trial court found Eduardo M.: (1) failed to support A.M.M. in violation of a court order; (2) constructively abandoned A.M.M.; and (3) failed to comply with the court-ordered Family Service Plan. See TEX. FAM. CODE ANN. § 161.001(1)(F),(N), and (O) (West Supp. 2015). The trial court also found termination of Eduardo M.'s parental rights was in the best interest of A.M.M. See TEX. FAM. CODE ANN. § 161.001(2). Eduardo M. filed this appeal.
ANALYSIS
Eduardo M. complains the evidence is legally and factually insufficient to support the trial court's findings of the three statutory grounds for termination of his parental rights. Eduardo M. does not challenge the trial court's finding that termination was in A.M.M's best interest.
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(1); and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Both elements must be established, and termination may not be based solely on the best interest of the child. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Because a parent's right to the companionship, care, custody, and management of children is a constitutional interest "far more precious than any property right a judgment terminating parental rights must be supported by clear and convincing evidence." TEX. FAM. CODE ANN. § 161.206(a) (West 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also In the Interest of J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). "'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 the Interest of J.F.C., 96 S.W.3d at 263; see In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and modification of conservatorship order).
Consequently, termination proceedings must be strictly scrutinized, and "involuntary termination statutes are strictly construed in favor of the parent." Holick, 685 S.W.2d at 20. To determine if the heightened burden of proof was met, an appellate court must employ a heightened standard of review—judging whether a "factfinder could reasonably form a firm belief or conviction about the truth of the [Department's] allegations." In the Interest of 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. Id. at 26. An appellate court must not reweigh issues of witness credibility but "'must defer to the [factfinder's] determinations so long as those determinations are not themselves unreasonable.'" In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)).
Because Eduardo M. does not challenge the trial court's best-interest finding, if this court concludes the evidence is sufficient to support only one of the predicate grounds, the trial court's judgment must be affirmed. See Tx. Dep't of Human Servs. v. Boyd, 727 S.W.2d at 533.
Sufficiency of the Evidence Review
Under the strict scrutiny implicit in termination cases and the necessity of clear and convincing evidence, the traditional legal and factual standards of review are inadequate. In the Interest of J.F.C., 96 S.W.3d at 264-66. Instead, in conducting a legal sufficiency review of termination of parental rights, an appellate court must view all of the evidence in the light most favorable to the finding and determine whether a reasonable factfinder could have formed a firm belief or conviction that its ultimate findings are true. See id. at 266. In viewing the evidence in the light most favorable to the judgment, the appellate 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. However, the appellate court may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the Department's heightened burden of proof by clear and convincing evidence. Id. If, after conducting its legal-sufficiency review of all the evidence, a court determines no reasonable factfinder could form a firm belief or conviction consistent with the final judgment, then the court must conclude the evidence is legally insufficient. Id.
When reviewing a factual sufficiency challenge, the analysis is somewhat different in that the appellate court must consider all of the evidence equally, both disputed and undisputed. In the Interest of J.F.C., 96 S.W.3d at 266. The appellate court must determine whether the disputed evidence is such that a reasonable fact finder could have formed a firm conviction or belief about the truth of the Department's allegations. Id. In doing so, the appellate court must assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so and disregard all evidence that a reasonable factfinder could have disbelieved. Id. Finally, in its analysis of this evidence the appellate court should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. The appellate court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.; In the Interest of A.S., 261 S.W.3d 76, 82 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Statutory Grounds for Termination
TERMINATION BASED ON SECTION 161.001(1)(O): FAILURE TO FOLLOW FAMILY SERVICE PLAN
In his third issue, Eduardo M. asserts the evidence is legally and factually insufficient to support termination of his parental rights pursuant to Family Code Section 161.001(1)(O). Specifically, Eduardo M. argues he was unable to visit A.M.M. more frequently due to the distance between his residence in Rosenberg, Texas and A.M.M.'s placement in San Antonio, Texas. Eduardo M. contends his work schedule did not allow for the required visitation. Finally, Eduardo M. contends the Family Service Plan was permissive in nature, in that it gave him the right to see A.M.M. weekly; however, it did not require that he attend weekly visitation.
Under Family Code Section 161.001(O), termination of parental rights is warranted if the trial court finds by clear and convincing evidence the parent:
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.TEX. FAM. CODE ANN. § 161.001(1)(O).
Texas courts take a strict approach to application of subsection (O) as a ground for termination of parental rights. See In the Interest of D.N., 405 S.W.3d 863, 877-78 (Tex. App.—Amarillo 2013, no pet.). To establish satisfactory proof for termination under Subsection (O), the Department need only show the parent failed to comply with a court order. Degree of compliance does not factor into the analysis, as substantial compliance is not the same as complete compliance. In the Interest of C.S., No. 02-14-00386-CV, 2015 WL 1869443, at *10 (Tex. App.—Fort Worth April 23, 2015, no pet.) (mem. op.); In the Interest of J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.). Further, this analysis of compliance does not integrate or afford excuses for a failure to comply with the trial court's order. In the Interest of C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.); In the Interest of I.G., 04-15-00406-CV, 2015 WL 7566088, at *4 (Tex. App.—San Antonio Nov. 25, 2015, no pet.). "Rather, any excuse for failing to complete a family service plan goes only to the best-interest determination." In the Interest of C.S., 2015 WL 1869443, at *10; see also Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976). The burden of complying with a court order is on the parent, even if the parent is incarcerated. In the Interest of C.M.C., 273 S.W.3d 862, 874-75 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that mother's argument that she did not take a parenting class because none were available "[did] not create a factual dispute as to her compliance; rather, it is in the nature of an excuse for her failure to comply"); see also Thompson v. Tex. Dep't of Family & Protective Servs., 176 S.W.3d 121, 127 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
THE EVIDENCE
To support its burden to show Eduardo M. failed to comply with a court order that established the actions necessary for return of A.M.M., the Department admitted into evidence the trial court's Family Service Plan. The record shows the Family Service Plan was filed with the trial court clerk on March 25, 2014, and the plan was made an order of the court.
Among other things, the Family Service Plan stated Eduardo M.:
will attend supervised visits with his child, [A.M.M.], once a week for one hour at KidShare located at 4245 Centergate St., San Antonio, TX. He will call (210) 299-2476 to confirm visitation at least 24 hours before the parent-child visit. [Eduardo M.] will be on time for visits with [A.M.M.].
During these visits, [Eduardo M.] will demonstrate skills he has learned in parenting classes when appropriate and necessary. He will also listen to and apply parenting recommendations made by KidShare providers.
[Eduardo M.] will bring a diaper bag containing items that meet [A.M.M.]'s basic needs, including diapers, wipes, a bottle, sippy cup, snacks, and drinks (water and milk). The snacks and drinks will be nutritious and age-appropriate options.
Eduardo M. testified he was aware of the Family Service Plan beginning in February 2014, and was aware of its requirements. Eduardo M. testified he attended the status hearing held on March 25, 2014 by telephone, and during this hearing, the trial court reviewed the Family Service Plan with him. At the conclusion of the hearing, the trial court determined the plan was reasonable. Eduardo M. testified he did not sign the Family Service Plan because he was not physically present at the status hearing; however, he did receive a copy of the Family Service Plan, and he did sign it on March 31, 2014.
Eduardo M. testified he attended 4 visits with A.M.M. between February 4, 2014, and the commencement of trial on July 13, 2015. The last visit occurred in October 2014. Eduardo M. testified he was unable to visit A.M.M. more frequently due to the distance between his residence and San Antonio and because his work schedule would not accommodate more frequent visitation. Eduardo M. testified his current job did not require that he work on the weekends, and his previous job provided Sundays off. Eduardo M. testified the Department's caseworker contacted him monthly regarding visitation with A.M.M., and on two occasions he told the caseworker he would come visit, but did not appear.
Although Eduardo M. argues the Family Service Plan provided him the right to visit A.M.M., clearly by its terms, the plan required weekly visitation by stating, Eduardo M. "will attend supervised visits ... once a week for one hour." Eduardo M.'s testimony reveals he failed to comply with the Family Service Plan requirement that he attend weekly visitation sessions with A.M.M. because he attended only 4 sessions in a 17-month span. This evidence is undisputed. The record contains no evidence of full or adequate compliance. Eduardo M. provided only excuses for his failure to adhere to the required visitation. However, excuses for failure to comply with a court order and partial compliance do not factor into analysis of the issue of compliance with or satisfaction of a court order. See In the Interest of C.S., 2015 WL 1869443, at *10-11. Rather, Eduardo M.'s excuses for failing to adhere to the required visitation under the Family Service Plan may relate only to examination of the trial court's best-interest determination, which is not contested on appeal. In the Interest of C.S., 2015 WL 1869443, at *10. Therefore, the evidence is conclusive that Eduardo M. failed to comply with the court-ordered Family Service Plan.
Upon review of all the evidence in the light most favorable to the trial court's finding, a reasonable trier of fact could have formed a firm belief or conviction that Eduardo M. failed to comply with the Family Service Plan requiring weekly visitation of A.M.M. as an action necessary to obtain the return of the child. Therefore, the evidence is legally sufficient to support the court's finding on this ground.
After review and consideration of the entire record, including both evidence supporting and evidence contradicting the finding, a reasonable fact finder could have formed a firm conviction or belief of the truth of the Department's allegation that Eduardo M. failed to comply with the Family Service Plan requiring weekly visitation of A.M.M. as an action necessary to obtain the return of the child. This evidence is undisputed. Thus, the evidence is factually sufficient to support the court's finding under section 161.001(O) on this matter.
For these reasons, the evidence clearly and convincingly shows Eduardo M. failed to comply with the court-ordered Family Service Plan that specifically established the actions necessary for him to obtain the return of A.M.M. Eduardo M.'s third issue is overruled.
Having overruled Eduardo M.'s issue challenging the trial court's finding that termination was warranted under Section 161.001(1)(O), this court need not address his challenge to the trial court's findings under Family Code Sections 161.001(F) or (N). See Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d at 533; see TEX. R. APP. P. 47.1 (requiring an appellate court issue an opinion as brief as practicable while addressing all issues necessary to the final disposition of the appeal); see also TEX. FAM. CODE ANN. § 161.001(1).
CONCLUSION
The trial court's judgment as to Eduardo M. is affirmed. No costs shall be assessed against Eduardo M. in relation to this appeal because he qualifies as indigent under TEX. R. APP. P. 20.
Jason Pulliam, Justice