Opinion
No. 04-17-00120-CV
08-30-2017
IN THE INTEREST OF J.C.C., JR., L.H.M.C., and J.Z.M., Children
MEMORANDUM OPINION
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA00767
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Irene Rios, Justice AFFIRMED
J.C.C., Sr., the father of J.C.C., Jr., L.H.M.C., and J.Z.M., appeals the trial court's order terminating his parental rights. The only issue J.C.C., Sr. presents is a challenge to the sufficiency of the evidence to support the trial court's finding that termination of his parental rights was in the children's best interest. We affirm the trial court's order.
The order also terminated the mother's parental rights to J.C.C., Jr., L.H.M.C., J.Z.M., and three other children in addition to the parental rights of the father of the three other children. Neither the mother nor the father of the other three children appeals.
BACKGROUND
On April 13, 2016, the Texas Department of Family and Protective Services filed a petition to terminate J.C.C., Sr.'s rights. When the petition was filed, J.C.C., Sr. was incarcerated, and the children were removed from their mother's care because of her ongoing drug use and her neglectful supervision of the children. The case proceeded to a bench trial on February 15, 2017.
Angela Shorts, the Department's removing worker, testified the Department has been involved with the family for about two years. The case was initially assigned to family based services. The children's mother, T.C., and her boyfriend, J.G., tested positive for marijuana. T.C. also tested positive for heroin, and the Department had concerns about methamphetamine use. The Department sought to have the children removed after Shorts learned the family was evicted from their home. Although Shorts attempted to implement a parent-child safety plan, there were no viable caretakers. T.C. admitted to Shorts that she continued to use marijuana despite being pregnant and also told Shorts she thought she would test positive for Vicodin that she was using because her tooth was hurting. Although Shorts knew J.C.C., Sr. was incarcerated when the children were removed, she was not sure why he was incarcerated.
Glory Bishop began working on the case for the Department in October of 2016. On the date of trial, J.C.C., Jr. was eight, L.H.M.C. was seven, and J.Z.M. was six. Bishop testified J.C.C., Sr. was incarcerated when the children were removed and had not completed his service plan. Although J.C.C., Sr. completed a domestic violence class and possibly completed a parenting class, he was unsuccessfully discharged from individual therapy due to his incarceration. J.C.C., Sr. completed a drug assessment, and outpatient drug treatment was recommended based on the assessment. After missing three of the treatment classes, J.C.C., Sr. requested classes closer to his home; however, he was reincarcerated before that request could be accommodated. Bishop testified J.C.C., Sr. was incarcerated in October of 2016 for possession of a controlled substance, released in November of 2016, reincarcerated on January 17, 2017 for possession of a controlled substance, and released again on February 6, 2017.
J.C.C., Sr. admitted his October 2016 incarceration was based on his use of methamphetamines. When J.C.C., Sr. was not incarcerated, he was consistent in visiting with the children. Bishop testified it was in the children's best interest to terminate J.C.C., Sr.'s parental rights. Bishop stated J.C.C., Sr. is still using drugs and is unable to provide for the children. J.C.C., Sr. is not working and is living with a family member; therefore, Bishop testified he is unable to provide a safe and stable home for the children. In addition, J.C.C., Sr. has additional criminal charges pending. Bishop stated having a forever home was in the children's best interest.
Bishop testified the children were living at St. Jude's because no potential caretakers had been located. All three children have serious behavioral issues making them difficult to place. Although the children's maternal grandmother previously informed the Department she was unwilling to care for the children, she expressed a willingness to care for the children on the morning trial began. Bishop stated the Department would explore the possibility of that placement.
On cross-examination, Bishop testified J.C.C., Sr. signed his service plan. As noted, J.C.C., Sr. was released from jail on February 6, 2017, and trial commenced on February 15, 2017. After J.C.C., Sr. was released, Bishop provided him with the information necessary to restart his drug assessment and drug treatment by text message. J.C.C., Sr. was living with a sister who has history with the Department. Bishop stated she did not believe J.C.C., Sr. would be able to complete his service plan if he was given an additional two months because of his continual drug use. Bishop had not sent J.C.C., Sr. for a urinalysis because he did not have a continuous phone number to contact him when he was not incarcerated.
J.C.C., Sr. testified he was incarcerated when the children were removed in April of 2016, for violating the terms of his parole. J.C.C., Sr. stated he was on parole for a "violent case" and went to his sister's house after he was kicked out of the halfway house in Austin where he was required to stay after his release on parole. J.C.C., Sr.'s sister called the police which led to his incarceration. J.C.C., Sr. was released from that incarceration in June of 2016. J.C.C., Sr. signed a service plan on August 1, 2016, but stated he did not receive a copy of the plan. J.C.C., Sr. agreed he did not follow the plan when he was arrested in October of 2016 for possession of a controlled substance. J.C.C., Sr. was released from jail on November 7, 2016. J.C.C., Sr. testified he did not use drugs again until he was told his children would not be returned to his care after which he used methamphetamine. J.C.C., Sr. was arrested again on January 17, 2017 and was scheduled for sentencing on March 14, 2017. Although J.C.C., Sr. testified he had a plea agreement for six years' deferred adjudication, he also testified a "good chance" existed that he would be "sentenced for a good amount of time." J.C.C., Sr. also admitted he had previously served time in prison on a three year sentence for assault family violence for which he was on parole.
At the conclusion of the evidence, the trial court terminated J.C.C., Sr.'s parental rights, and J.C.C., Sr. appeals.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the 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 TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (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.
In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court 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.F.C., 96 S.W.3d at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
In conducting a factual sufficiency review of a trial court's order terminating parental rights, we "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 256, 266 (Tex. 2002). "In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a [factfinder's] factfindings and should not supplant the [factfinder's] judgment with its own." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal citations omitted). The evidence is only factually insufficient if "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" about the truth of the State's allegations. In re J.F.C., 96 S.W.3d at 266. "The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (mem. op.).
PREDICATE FINDINGS
Although the only issue presented in J.C.C., Sr.'s brief is a challenge to the sufficiency of the evidence to support the trial court's best interest finding, the argument section of his brief also appears to challenge the sufficiency of the evidence to support two of the four predicate statutory grounds found by the trial court in support of termination. As previously noted, only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d at 362.
In this case, the trial court found by clear and convincing evidence that J.C.C., Sr.: (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being; (2) constructively abandoned the children and failed to regularly visit or maintain significant contact with the children despite the Department's reasonable efforts to return the children to J.C.C., Sr., and demonstrated an inability to provide the children with a safe environment; (3) failed to comply with the provisions of a court order specifically establishing the actions necessary for J.C.C., Sr. to obtain the return of the children; (4) used a controlled substance in a manner that endangered the health or safety of the children, and (a) failed to complete a court-ordered substance abuse treatment program; or (b) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance. Even if we were to consider the improperly briefed arguments regarding the two predicate statutory grounds J.C.C., Sr. references in the argument section of his brief, J.C.C., Sr. does not challenge the other two predicate statutory grounds found by the trial court. Because two of the predicate grounds are not challenged by J.C.C., Sr., it is not necessary to review the sufficiency arguments as to the other grounds. In re K.W., 335 S.W.3d 767, 769-70 (Tex. App.—Texarkana 2011, no pet.) (citing In re D.R.P.V., No. 04-09-00644-CV, 2010 WL 2102989, at *1 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.)). We note proof of one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
BEST INTEREST FINDING
There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016).
In determining the best interest of a child, courts apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (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 held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (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. 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 at 27. "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." 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 [in] determin[ing] whether termination of parental rights is in the child's best interest." Id.
No evidence was presented regarding the children's desires; however, their serious behavioral issues are a sign that the instability of their lives has affected them. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (noting stability and permanence are paramount in the upbringing of a child). J.C.C., Sr. was incarcerated for assault family violence when the children were removed by the Department and had been incarcerated on two additional charges of possession of a controlled substance. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting parent's drug use supports a finding that termination is in best interest of the child); In re S.R., 452 S.W.3d 351, 370 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (relying on periods of parent's incarceration while proceedings were pending as evidence to support best interest finding). J.C.C., Sr. is not employed, is living with a family member who has a history with the Department, and is pending sentencing on one of his possession offenses. See In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (noting parent's inability to provide a stable home supports a finding that termination is in the best interest of the child). Finally, J.C.C., Sr. has not completed his service plan. See id. (noting failure to comply with family service plan supports a finding that termination is in the best interest of the child).
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination of J.C.C., Sr.'s parental rights was in the children's best interest.
CONCLUSION
The order of the trial court is affirmed.
Irene Rios, Justice