Opinion
04-22-00367-CV
12-14-2022
IN THE INTEREST OF D.L.Q., a Child
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2021PA01092 Honorable Kimberly Burley, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellant Father appeals the trial court's order terminating his parental rights to his child, D.L.Q. Father challenges the sufficiency of the evidence supporting the trial court's finding that termination was in D.L.Q.'s best interest. We affirm.
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and the child as "the child" or using the pseudonym "D.L.Q." See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2). The trial court's order terminates both Mother's and Father's parental rights to the child, but only Father appeals the trial court's order.
Background
The Department of Family and Protective Services ("the Department") became involved in the underlying case in May 2021, when Mother was arrested at a grocery store while D.L.Q. was in her possession. Following the arrest, the Department placed D.L.Q. in family-based services and provided Mother with a safety plan. The Department sought removal after Mother failed to comply with the safety plan.
On June 23, 2021, the Department filed a petition seeking temporary managing conservatorship of the child and termination of Mother's and Father's parental rights. On June 1, 2022, the trial court held a bench trial. The trial court heard testimony from Felicia Hill, the Department's caseworker; Mother; Father; and M.G., a CASA volunteer assigned to this case.
On June 13, 2022, the trial court entered an order terminating Father's parental rights to D.L.Q. Specifically, the trial court terminated Father's parental rights based on statutory grounds (O) and (Q) in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (Q). The trial court also found it was in D.L.Q.'s best interest to terminate Father's parental rights. See id. § 161.001(b)(2). Father appeals.
Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Clear and convincing evidence requires "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. § 101.007.
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review).
"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we must 'look at all 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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] 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 the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn, 433 S.W.3d at 823-24.
Best Interest
Father argues the evidence is legally and factually insufficient to support a finding that termination of his parental rights is in D.L.Q.'s best interest.
When considering the best interest of a child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).
In determining whether a parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. See id. § 263.307(b). We also consider the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
These factors include:
(1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the child's parents . . .; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills . . .; and (13) whether an adequate social support system . . . is available to the child.Tex. Fam. Code Ann. § 263.307(b).
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.
Desires of the Child, Plans for the Child, and Stability of the Home
Felicia Hill, the Department's caseworker, testified D.L.Q. is currently placed with relatives. According to Hill, "[D.L.Q.] is really, really flourishing" and "doing very well in this home." D.L.Q.'s sister was also placed with this foster family and has been adopted by the family. Hill further testified the Department's long-term plan for D.L.Q. is to also be adopted by this family. Hill believed it was in D.L.Q.'s best interest to be adopted by the current foster family because the "home is able to . . . keep her connected with her family, . . . provide [for] her, and meet all of her basic needs."
M.G., the CASA volunteer assigned to this case, testified D.L.Q.'s current placement is "a beautiful home" with "a large area to play in" and is "a very good place for [D.L.Q.]." M.G. stated D.L.Q. is bubbly and happy in this new placement and it is "the perfect place for [D.L.Q.] to thrive and grow."
Hill stated D.L.Q. desires to remain with her current foster family. When asked by the trial court, the child's guardian ad litem confirmed D.L.Q. wishes to remain with her current foster family who has already adopted D.L.Q.'s sister. Based on these factors, the trial court could have reasonably formed a firm belief or conviction that termination of Father's rights was in D.L.Q.'s best interest.
Parental Abilities, Emotional and Physical Needs and Dangers, and History of Assaultive Conduct
"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. "This court considers a parent's conduct before and after the Department's removal of the child[]." S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied). A child's young age renders her vulnerable if left in the custody of a parent who is unable or unwilling to protect her or attend to her needs. Id.
Hill testified Father is unable to care for D.L.Q. because he has been incarcerated for aggravated robbery since before the inception of this case. See In re J.J.O., No. 04-18-00425-CV, 2018 WL 5621881, at *2 (Tex. App.-San Antonio Oct. 31, 2018, no pet.) (mem. op.) ("Criminal conduct, prior convictions, and incarceration affect[] a parent's life and his ability to parent, thereby subjecting his child to potential emotional and physical danger."). "A parent's lengthy absence from a child's life during her early years due to incarceration creates an 'emotional vacuum' that threatens the child's emotional well-being and indicates that the parent-child relationship is not a proper one." In re J.M.G., 608 S.W.3d 51, 57 (Tex. App.-San Antonio 2020, pet. denied) (internal quotation marks and alterations omitted); see also In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied) ("As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.-San Antonio 1998, pet. denied))).
Hill testified Father's sentence runs until August 2030, though he is eligible for parole in August 2024. However, "the trial court was permitted to consider that [Father] could also serve [his] entire sentence and not be released early." J.M.G., 608 S.W.3d at 56-57 (internal quotation marks and alterations omitted) ("[T]estimony about parole eligibility, even if undisputed, is generally not binding on a factfinder because parole decisions are inherently speculative and rest entirely within the parole board's discretion."). In contrast to D.L.Q.'s placement with her foster family, Father is not able to provide for her given his current situation.
The trial court heard testimony that D.L.Q. was originally placed with Father's sister. However, Father's sister began experiencing medical issues that rendered her unable to care for D.L.Q. D.L.Q. was then, and is currently, placed with a maternal relative. The trial court could have reasonably inferred that Father did not have a support system in place to care for D.L.Q. while he is incarcerated. See Tex. Fam. Code Ann. §263.307(b)(13) (stating a best-interest factor considered by the trial court is whether an adequate social support system consisting of an extended family and friends is available to the child).
Finally, we note Father was convicted of aggravated robbery. The trial court could have reasonably inferred Father's criminal past involved some degree of abusive or assaultive conduct. See Tex. Penal Code Ann. § 29.03 (stating a person commits aggravated robbery if, during the robbery, the person (1) causes serious bodily injury to another; (2) uses or exhibits a deadly weapon; or (3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the person is 65 years of age or older, or a disabled person). The trial court could have further inferred that Father's conduct may pose an emotional or physical danger to D.L.Q. in the future. See E.D., 419 S.W.3d at 620 (holding a factfinder in a parental termination case may judge a parent's future conduct by his past conduct).
Based on these factors, the trial court could have reasonably formed a firm belief or conviction that termination of Father's parental rights was in D.L.Q.'s best interest. See J.J.O., 2018 WL 5621881, at *2 ("A parent's criminal activities and history are relevant to a best[-]interest analysis.").
Programs, Acts or Omissions, Excuses for Acts or Omissions, Willingness to Effect Positive Change
Hill testified Father was required to attend parenting classes and a family violence prevention program. Hill further testified Father was to participate in random drug testing and a psychological evaluation if he was able to while incarcerated. Hill stated she explained that failure to fully cooperate with the service plan could result in termination of Father's parental rights to D.L.Q. and that Father signed the service plan.
The record reflects Father's access to some services was limited due to his incarceration. This may serve as an excuse for Father's failure to complete those services he could not access. However, Father told Hill he was taking a parenting class and a drug treatment program in prison, yet Hill testified that Father never provided her with a certificate of completion showing he had successfully completed the parenting class or drug program.
Father testified he would call Mother almost every time she visited D.L.Q. so that he could speak with D.L.Q. during the last ten minutes of Mother's visitation time. Hill confirmed the phone calls were appropriate.
The trial court heard some evidence weighing in favor of Father under these factors; however, in light of the other factors in the best-interest analysis, the evidence is not so strong that we must conclude a reasonable fact finder could not have formed a firm belief or conviction that termination of Father's parental rights was in D.L.Q.'s best interest.
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Father's parental rights is in D.L.Q.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing an appellate court need not detail the evidence if affirming a termination judgment). Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
Conclusion
The trial court's order terminating Father's parental rights to D.L.Q. is affirmed.