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stating that factfinder "is not required to ignore a history of narcotics use merely because it abates as trial approaches"
Summary of this case from In re S.V.H.Opinion
NO. 01-16-01006-CV
06-01-2017
IN THE INTEREST OF J.H.G., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2015-05800J
MEMORANDUM OPINION
Father is appealing the termination of his parental rights with regard to his son, J.H.G., and argues that there is legally and factually insufficient evidence to support the trial court's findings that he endangered J.H.G. and that termination of his parental rights is in J.H.G.'s best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(E), (b)(2) (West Supp. 2016). We affirm the trial court's judgment.
Father also challenges the sufficiency of the evidence supporting termination of his parental rights pursuant to section 161.001(b)(1)(N). See TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (West Supp. 2016). DFPS concedes that there is insufficient evidence to support the trial court's predicate finding under subsection (N). A judgment of termination, however, can be supported by only one predicate finding when there is also a finding that termination is in the child's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Accordingly, we will limit our discussion to Father's challenges to the sufficiency of the evidence supporting the trial court's predicate finding regarding subsection (E) and the court's finding that termination of Father's rights is in J.H.G.'s best interest.
Background
J.H.G. came to the Texas Department of Family and Protective Services's attention following a report of neglectful supervision made on May 28, 2015. The report alleged that J.H.G.'s mother regularly left him and his two young siblings unattended in order to use illegal drugs. After Mother tested positive for cocaine in July 2015, DFPS placed the children with their maternal aunt. Although Mother agreed to complete a substance abuse program in September 2015, she was arrested before being accepted into the program, and was subsequently incarcerated. The record reflects that around the time Mother was arrested, the maternal aunt informed DFPS that she could no longer care for J.H.G. According to DFPS, J.H.G.'s father was incarcerated and there were no other viable relatives available to care for the boy.
On October 12, 2015, DFPS filed a petition for protection of a child for conservatorship, and for termination in suit affecting the parent-child relationship. On the same day, the trial court signed an order placing J.H.G. in DFPS's emergency custody.
After an adversary hearing on October 22, 2015, the court found there was a continuing danger to J.H.G., and appointed DFPS as J.H.G.'s temporary managing conservator. The record reflects that Father attended the October 22 hearing and was ordered to provide samples for DNA and drug testing. The DNA test result showed that he was J.H.G.'s father. The drug test showed that Father was positive for cocaine, marijuana, amphetamine, and methamphetamine.
The record reflects that Mother participated in a pre-trial family evaluation and provided some history regarding her relationship with Father. According to Mother, she was fourteen years old when she met Father and became pregnant with J.H.G. Mother told the evaluator that she told Father that he was J.H.G.'s father "when [Father] was released from jail" in 2010. According to Mother, "[Father] has met J.H.G. but is not involved in his life."
The record reflects that Father was ordered to submit to drug testing in December 2015 and that, although he reported to a drug testing agency, Father walked out without providing a sample. Father's lack of participation is considered a positive drug test. Father also tested positive for cocaine and marijuana on April 1, 2016 and June 28, 2016. Father's wife, J.H.G.'s stepmother, also participated in a drug test on June 28, 2016, and she also tested positive for cocaine and marijuana. Father's drug tests in July and August 2016 were both negative.
On October 4, 2016, the first day of trial, J.H.G.'s caseworker testified that Father completed his family service plan, completed a psychosocial assessment, individual counseling, and outpatient substance abuse treatment, maintained contact with his caseworker, provided proof of stable housing and employment, participated throughout the case, and provided for J.H.G. Despite his general compliance with the family service plan, however, Father had not refrained from using drugs, as evidenced by his positive tests in October 2015 (cocaine, amphetamine, methamphetamine, and marijuana) and June 2016 (cocaine). The caseworker further noted that Father's wife had also tested positive for cocaine in June 2016. She also testified that Father's drug tests in July and August 2016 were both negative. She explained, however, that despite Father's recent negative tests, DFPS was still concerned about Father's drug use because he had been unable to demonstrate sobriety for a period of at least six months.
In addition to his drug usage, J.H.G.'s caseworker also testified about Father's extensive criminal history. Father's criminal records, which were admitted into evidence at trial, reflect that Father has committed violent and non-violent crimes before and after J.H.G. was born in late 2004.
Specifically, the record reflects that Father pleaded guilty to possession of marijuana in January 2004. In February 2006, Father pleaded guilty to aggravated assault with a deadly weapon and was sentenced to five years' incarceration. He also pleaded guilty to harassment of a public servant on the same date and he received another five-year sentence. Both offenses occurred in September 2005—less than a year after J.G.H.'s birth. Father was released from prison in 2010.
In March 2012, Father was charged with robbery after he and three women allegedly stopped the car that Father's ex-girlfriend was driving and pulled the woman out of the car, and the women "began to kick her in her head and body." They then stole the victim's purse and cell phone. The charge, however, was dismissed in January 2013, because Father pleaded guilty to the offense of assaulting a public servant in an unrelated case, and he was sentenced to two years' incarceration.
Father also pleaded guilty to stealing another ex-girlfriend's cell phone and laptop in January 2014, and was sentenced to eighty days in jail. In March 2014, Father was charged with possession of cocaine and attempting to escape a correctional facility. He subsequently pleaded guilty to the possession charge, was sentenced to eight months' incarceration on that offense, and the attempted escape charge was dismissed.
Father's most recent criminal offenses occurred a little over a month before DFPS received the neglectful supervision report on May 28, 2015. Father was charged with terroristic threat for threatening to assault Father's mother in April 2015. He also pleaded guilty to failing to stop and give information after driving his car into an electric pole, and leaving his burning vehicle at the scene of the accident. He was found at his residence four blocks from the accident, and he subsequently admitted that he had used cocaine earlier that day. Father was serving a sixty-day jail sentence for this offense when DFPS received the neglectful supervision report.
The caseworker testified that Father visited J.H.G. and brought the boy shoes and clothes. She said that J.H.G. enjoys the visits, but denied that there was a strong bond between J.H.G. and Father. [Id.] She stated the lack of bond was because "[J.H.G.] didn't have a relationship with his father until this case." When asked about Father's relationship with Mother, the caseworker testified that Father and Mother "would go back and forth. Mother would not tell the truth. And then once we did the DNA testing, he found out that he was indeed [the] father and he wanted to be a part of [J.H.G.]'s life full time."
The caseworker also testified that J.H.G. has been diagnosed with ADHD and bipolar disorder and was currently placed in a residential treatment center. Although J.H.G. does well in the treatment center most of the time, he still has anger issues and gets into fights, and this behavior prevents him from being placed in a foster home.
DFPS's Permanency Plan and Progress Report, which was admitted into evidence, states:
[J.H.G.] is a healthy and active 11 year old boy. [J.H.G.] has displayed and been observed with negative behaviors at his placement and at school. [J.H.G.] is physically and verbally aggressive. [J.H.G.] requires Special Education. [J.H.G.] participates in therapy weekly and also receives general tutoring for his school work. [J.H.G.] is diagnosed with ADHD and Bipolar.The report also reflects that, after being taken into DFPS's custody, J.H.G. now receives weekly therapy to address his behavioral issues, general tutoring to assist him with his school work, and he is on medication to treat his ADHD and his impulse control issues. The report also includes several recommendations for J.H.G.'s care based on his psychological evaluation.
• [J.H.G.] will function best in well-structured, consistent and predictable environments. He will need considerable structure and supervision as well as a support[ive] and nurturing environment where limits are clear. He will require a lot of positive reinforcement for even the most minor behavioral improvements to slowly build desired behaviors.
• [J.H.G.] might benefit from individual therapy to address his emotional reactivity, learn anger management and problem solving strategies to learn to better identify and appropriately express emotions, and to help him develop positive and effective coping strategies.
• [J.H.G.] should continue to have his medication monitored by his outpatient psychiatrist.
* * *
• [J.H.G.] will do best with a calm, non-confrontational approach. While his rages and aggressive outbursts may appear to occur out of the blue[,] adults should be vigilant to identify potential antecedents for the episode.
According to the caseworker, the termination of Father's parental rights would give DFPS more options in terms of finding an adoptive placement in which J.H.G. "can grow up in a stable and drug free environment." She also testified that J.H.G.'s two young siblings were living with "a very nice adoptive family," that J.H.G. had recently visited them, and that the siblings' adoptive family had not ruled out the possibility of adopting J.H.G. at some point in the future. The caseworker testified that the foster family still needed some time "to integrate [the] two younger children into the family and make sure that's a good fit and then make a decision about whether it would be in those children's best interest to have [J.H.G.] placed with them." She testified that there was a possibility that J.H.G. could be placed with his younger siblings.
Father testified that he did not know that J.H.G. was his child before this case. Although he acknowledged that he had a criminal history, he also testified his criminal offenses did not occur when J.H.G. was in his home or in his life and he generally disputed the accuracy of some of his criminal history, but he did not identify which portions of the record he took issue with. He testified that he participated in DFPS's services and that he brought J.H.G. money, clothes, shoes, and hygiene products when he visits the boy. Father also testified he had worked for a security company for eight months and lives in a stable home with his wife and mother-in-law.
When asked about his drug usage, Father testified that he had a drug problem beginning in 2013, and that he used cocaine, "probably like every two weeks. Sometimes during the weeks." Father testified that the last time he used cocaine was in February 2016 and he estimated that he used cocaine "about eight. About eight, ten times," between October 2015 and February 2016. He also denied using methamphetamine, but acknowledged that he was using "street drugs" at the time, and that "there ain't no telling what they putting in it." Father also testified that he participated in substance abuse treatment, as required by DFPS. He testified that he completed the sixty-day treatment program in approximately three and a half weeks, beginning in August 2016.
J.H.G.'s child advocate volunteer testified that Child Advocates did not believe that it was in J.H.G.'s best interest to terminate Father's parental rights because J.H.G.'s "options are limited at this time because of his behavioral issues, because of his medical issues and his special needs." The record also reflects that J.H.G. told his volunteer that he wanted to live with Father in June 2016.
After testimony concluded for the day, the court ordered Father to submit to further drug testing and set trial to recommence thirty days later. When trial began again on November 10, 2016, the trial court noted that Father tested "positive for marijuana exposure only in his hair follicle" on October 4, 2016, and that Father's October 28, 2016 drug test was negative.
During the second day of trial, Father acknowledged that he participated in a drug test on October 4, 2016, and that the results showed him to be positive for exposure to marijuana. Father denied that he used any drugs and explained that he went to a "revenue house, not knowing they was smoking weed," and that he and his wife "just stopped for a short period of time to say goodbye and left. . . ." He also reiterated that he was employed, and testified that he recently bought a home. Father also claimed that he had not seen J.H.G. since the beginning of October because his car had broken down.
J.H.G.'s caseworker confirmed that Father had not visited with J.H.G. in over a month, and she explained that Father "can go visit [J.H.G.] freely," as long as the treatment center is informed. She also testified that J.H.G. liked visiting with Father, and had developed a bond with him. She further testified that J.H.G. had told her "that he likes visiting with the father due to that's the only contact he has at this time. He stated that he prefer[s] to visit with his mother but [DFPS] cannot find his mother. And he prefer[s] to visit with his siblings which he has been doing." J.H.G.'s caseworker reiterated that it was her opinion that terminating Father's parental rights was in J.H.G.'s best interest because it would allow DFPS to find an adoptive home for the boy "that will provide stability in a drug free environment."
A. Standard of Review and Applicable Law
A parent's right to the care, custody, and control of his child is a liberty interest protected under the Constitution, and we strictly scrutinize termination proceedings on appeal. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support an involuntary termination. Holick, 685 S.W.2d at 20 (citing Santosky, 455 U.S. at 747-48, 102 S. Ct. at 1391-92). Clear and convincing evidence is "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). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). Thus, we do not reweigh issues of witness credibility but defer to the factfinder's reasonable determinations of such matters. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
In conducting a legal-sufficiency review in an appeal from a termination case, we 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 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, disregarding all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If, after conducting a legal sufficiency review of the record, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.
In conducting a factual-sufficiency review in a parental-rights-termination case, we determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a factfinder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266-67. "If, in light of the entire record, 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, then the evidence is factually insufficient." Id. at 266.
To prevail in a termination case, DFPS must establish that one or more of the acts or omissions enumerated under Texas Family Code section 161.001(b)(1) occurred and that the termination is in the best interest of the children, pursuant to section 161.001(b)(2). TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016); In re C.H., 89 S.W.3d at 23. "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 355, 362 (Tex. 2003). B. Sufficiency of the Evidence Supporting Termination of Father's Rights Pursuant to Section 161.001(b)(1)(E)
Subsection 161.001(b)(1)(E) provides that a parent's rights can be terminated when he has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The parent's conduct must cause the endangerment, and the endangerment must be the result of a voluntary, deliberate, and conscious course of conduct by the parent rather than a single act or omission. In re K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). "'To endanger' means to expose a child to loss or injury or to jeopardize a child's emotional or physical health." Jordan, 325 S.W.3d at 723; see also In re K.P., 498 S.W.3d at 171 (citing Tex. Dep't Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) and In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)).
A child is endangered when the environment creates a potential for danger that the parent disregards. Jordan, 325 S.W.3d at 721; In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). "'[E]ndanger' means more than a threat of metaphysical injury or [the] potential ill effects of a less-than-ideal family environment, but that endangering conduct need not be directed at the child," and it is not necessary that the child actually suffer injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012) (citing Boyd, 727 S.W.2d at 533); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (holding that endangering conduct is not limited to actions directed toward child); Jordan, 325 S.W.3d at 723 (holding that danger to child may be established even if conduct is not directed at child and child suffers no actual injury). The specific danger to the child's well-being may be inferred from parental misconduct standing alone and courts may consider parental conduct that did not occur in the child's presence, including conduct before the child's birth and after he or she has been removed by DFPS. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 16-17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
A parent's use of illegal narcotics can support a termination of parental rights under section 161.001(b)(1)(E) because such conduct creates the possibility that a parent will be impaired or imprisoned, and thus, incapable of parenting. In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Walker, 312 S.W.3d at 617-18. Although incarceration alone will not support termination of parental rights, evidence of a parent's criminal conduct, convictions, and imprisonment may also support a finding of endangerment under section 161.001(b)(1)(E). See In re A.A.M., 464 S.W.3d at 426-27; see also In re S.R., 452 S.W.3d 351, 360-61 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Furthermore, abusive and violent criminal conduct by a parent can also produce an environment that endangers a child's well-being and evidence that a person has engaged in such conduct in the past permits an inference that the person will continue violent behavior in the future. Jordan, 325 S.W.3d at 724; Walker, 312 S.W.3d at 617.
Father argues that DFPS did not provide sufficient evidence that his conduct endangered J.H.G.'s physical well-being, because he did not know for certain that J.H.G. was his son until the DNA test confirmed the child's paternity in November 2015, and therefore, his conduct had no effect on J.H.G.'s well-being.
Knowledge of paternity it is not a prerequisite to a showing of a parental course of conduct which endangers a child under section 161.001(b)(1)(E). In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied) (holding court could consider evidence of parent's conduct which occurred prior to establishment of paternity for purposes of section 161.001(b)(1)(E)). Furthermore, although Father was not involved in J.H.G.'s life and did not live with J.H.G. when he used narcotics and engaged in criminal conduct, evidence of such conduct can, nevertheless, support a finding of endangerment under section 161.001(b)(1)(E). See generally In re A.A.M., 464 S.W.3d at 426 (explaining that relevant conduct may occur either before or after child's birth and after removal from home, and holding parental conduct constituted evidence of endangerment even though parent "merely exercised visitation during these periods of positive drug tests and criminal activity; he was not the custodial parent").
The record reflects that Father has an extensive criminal history, beginning in 2004 when he pleaded guilty to possession of marijuana. In 2005, Father pleaded guilty to aggravated assault with a deadly weapon and harassment of a public official and was sentenced to five years' incarceration for each offense. He was released from prison in 2010. Within two years of his release, Father was charged with the first of seven additional violent and non-violent offenses and he pleaded guilty to four of those offenses. Among these offenses, Father pleaded guilty to assault in 2012 and he was charged with making a terroristic threat after he threatened to assault his mother in April 2015. See generally Jordan, 325 S.W.3d at 724 ("Abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child."). Except for Father's January 2004 conviction for possession of marijuana, all of Father's criminal conduct and incarcerations occurred after J.H.G. was born. See In re A.A.M., 464 S.W.3d at 426.
The record also reflects that Father has a significant history of drug use, all of which occurred after J.H.G. was born. See id. Father testified that he began using cocaine approximately twice a month in 2013 and that he continued to use illegal narcotics while this case was pending. Specifically, the record reflects that Father submitted to court-ordered drug testing after an October 22, 2015 permanency hearing, and that he tested positive for cocaine, marijuana, amphetamine, and methamphetamine at that time. Father also failed to participate in a court-ordered drug test on December 28, 2015, which is equivalent to a positive test result. See In re I.W., No. 14-15-00910-CV, 2016 WL 1533972, at *6 (Tex. App.—Houston [14th Dist.] Apr. 14, 2016, no pet.) (mem. op.) (stating that parent's "refusal to submit to [a] drug test may be treated by the trial court as if he had tested positive for drugs."). Father, who estimated that he used cocaine eight to ten times from October 2015 until he stopped using the illegal narcotic in February 2016, nevertheless tested positive for marijuana and cocaine on April 1, 2016 and June 28, 2016. Father tested positive for marijuana exposure on October 4, 2016, the first day of trial.
After reviewing all of the evidence in the light most favorable to the trial court's finding, including evidence of Father's extensive criminal history and illegal drug usage, including drug use that occurred after paternity was confirmed in November 2015 and while this parental-termination case was pending, we conclude that a reasonable factfinder could have formed a firm belief or conviction that Father engaged in a course of conduct endangering to J.H.G. under section 161.001(b)(1)(E). See In re J.F.C., 96 S.W.3d at 266. Accordingly, we hold that the evidence is legally sufficient to support the trial court's finding.
The record reflects that Father had three negative drug tests during the pendency of this case (July 2016, August 2016, and October 28, 2016). Although he denied using methamphetamine in October 2015 and marijuana in October 2016, he did not challenge the accuracy of his other positive drug tests. Father also generally disputed the accuracy of some of the evidence of his criminal history. Viewing the evidence in a light favorable to the factfinder, including evidence both supporting and contradicting the finding, we conclude that the contrary evidence at trial is not so overwhelming as to undermine the trial court's firm conviction that Father's conduct endangered J.H.G. See J.F.C., 96 S.W.3d at 266. Accordingly, we hold that the evidence is factually sufficient to support the trial court's finding.
We overrule Father's challenge to the sufficiency of the evidence supporting the trial court's finding that Father engaged in in a course of conduct endangering to J.H.G. under section 161.001(b)(1)(E). See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25.
C. Sufficiency of the Evidence of the Child's Best Interest
In addition to a predicate violation, DFPS must establish by clear and convincing evidence that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(2).
Father argues:
The evidence is clearly insufficient to prove that the termination of [Father]'s parental rights is in the best interest of his child. [The caseworker] testified that the child is currently placed with a residential treatment center. . . . [The caseworker] further testified the child has been diagnosed with A.D.H.D. and bipolar. . . . Most importantly, [the caseworker] testified that DFPS does not have an adoptive placement for [Father]'s child. . . . . It is clear from the caseworker's testimony that the Department does not have a plan for [Father]'s child and does not understand how to provide for the child. Therefore, it is in the child's best interest to be placed with [Father], who will provide for the child's best interest.
There is a strong presumption that the best interest of a child is served by keeping the child with the child's natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of the child in a safe environment, however, is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2014). A child's need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in a best interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best interest finding: the desires of the child; the present and future physical and emotional needs of the child; the present and future emotional and physical danger to the child; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list of factors is not exhaustive, however, and evidence is not required on all of the factors to support a finding that terminating a parent's rights is in the child's best interest. Id.; In re D.R.A., 374 S.W.3d at 533.
The Texas Family Code also sets out similar factors to be considered in evaluating the parent's willingness and ability to provide the child with a safe environment, including: the child's age and physical and mental vulnerabilities; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; and whether the child's family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child's needs and capabilities. TEX. FAM. CODE ANN. § 263.307(b); R.R., 209 S.W.3d at 116.
A parent's past conduct is also probative of his future conduct when evaluating the child's best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.). Specifically, a finding that a parent engaged in in a course of conduct endangering a child under section 161.001(b)(1)(E) weighs in favor of termination because a parent's history of drug use or criminal conduct can show a pattern of conduct that subjects a child to an uncertain and unstable life, thus endangering the child's physical and emotional well-being. See Edwards v. Tex. Dep't of Protective Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ); see also In re C.H., 89 S.W.3d at 27 (holding same evidence may be probative of both section 161.001(1) grounds and best interest). A factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) (citing In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied)).
Father argues that the record reflects that DFPS has no plan for J.H.G. and does not understand how to care for him. On the contrary, J.H.G.'s caseworker testified that the boy has been diagnosed with ADHD and bipolar disorder and that he is in a residential treatment center because his angry outbursts and fighting are currently preventing him from being placed in a foster home. She also stated that the agency was actively looking for a permanent, stable home for J.H.G., and she testified that there was a possibility that J.H.G. could be adopted by his siblings' foster parents, whom she described as a "really nice adoptive home." The record reflects that J.H.G. functions best in "well-structured, consistent and predictable environments," needs a "calm, non-confrontational approach," and would benefit from continued psychiatric medication and individual therapy. Although there is extensive evidence regarding DFPS's understanding of J.H.G.'s physical and emotional needs, and their plans for the boy's future, there is no evidence that Father understands J.H.G.'s specialized needs, the ongoing care his son requires, or any evidence of Father's plans for addressing his son's specialized needs in the event of reunification.
As previously discussed, there is also legally and factually sufficient evidence supporting the trial court's finding under section 161.001(b)(1)(E). TEX. FAM. CODE ANN. § 161.001(b)(1)(E). In addition to Father's lengthy criminal history, which includes both violent and non-violent crimes, there is also evidence that Father has been incarcerated for most of J.H.G.'s life, and that he was in jail when J.H.G. was placed in DFPS's custody in May 2015. There is also evidence that Father's drug use, which began in 2013, and his association with drug users, continued until the first day of trial in October 2016. Father's inability to refrain from using drugs during the pendency of the case suggests an inability to perceive the danger that parental drug use poses to J.H.G. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.) (concluding that father's concealment of drug use and continued relationship with mother who abused drugs demonstrated father's inability to perceive danger that parental drug use posed to child). Such evidence is also indicative of Father's poor judgment and demonstrates an inability to adequately care for this special needs child. See In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (noting parental drug abuse is reflective of poor judgment).
There is also evidence in the record, however, indicating that Father was attempting to turn his life around and stop using drugs at the time of trial.
Father testified that he had been employed by a security company for eight months at the time of trial. He recently bought a home, and he and his wife were living with his mother-in-law until the house was ready. The record also reflects that Father has a lengthy criminal record that began when he was convicted of drug possession in 2004, but he has not been charged with or convicted of a crime since April 2015. A parent's improved conduct, however, "does not negate a long history of narcotics use and inappropriate choices." See In re B.J., No. 01-15-00886-CV, 2016 WL 1389054, at *9 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, no pet.) (mem. op.).
Father also testified that he slowly stopped using drugs after he learned about this case in October 2015 and that he stopped using cocaine altogether in February 2016. He estimated that he had only used cocaine between eight and ten times during that four-month period. Father also attended a substance abuse treatment program beginning in August 2016, and his drug tests in July and August 2016 and on October 28, 2016 were all negative. A factfinder, however, is not required to ignore a history of narcotics use merely because it abates as trial approaches. See Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 254 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (concluding that despite mother's contention that she had stopped using cocaine and marijuana, trial court was not required to ignore her history of narcotics use merely because she testified that it had abated before trial); In re M.G.D., 108 S.W.3d 508, 513 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (noting that jurors are not required to ignore long history of dependency and abusive behavior merely because it abates as trial approaches).
Furthermore, although Father's July 2016, August 2016, and October 28, 2016 drug tests were negative, he tested positive for cocaine and marijuana on April 1, 2016 and June 28, 2016—months after he claims to have stopped using cocaine—and he tested positive for marijuana exposure on the first day of trial. There is also evidence that Father's wife tested positive for cocaine and marijuana in June 2016. See TEX. FAM. CODE ANN. § 263.307(b)(8), (11) (providing that, in determining best interest, courts may consider history of substance abuse by child's family or others who have access to the child's home).
Thus, the evidence showed that Father, who began using drugs in 2013, tested positive for cocaine and marijuana while the termination case was pending, and that he tested positive for marijuana exposure on the first day of trial. From these tests, the trial court could have reasonably inferred that Father was either continuing to use illegal drugs and/or continuing to associate with people who were engaging in such conduct until the time of trial, and that such conduct is indicative of instability in Father's home. See In re S.R.H., No. 01-15-00714-CV, 2016 WL 430462, at *10-11 (Tex. App.—Houston [1st Dist.] Feb. 4, 2016, no pet.) (mem. op.) (stating that parent's past drug use is indicative of instability in home environment and holding evidence of parent's past drug dealing and drug convictions demonstrated parent had been unable to provide child with stable home in past and supported best interest finding); see generally In re D.M., 452 S.W.3d at 471 (factfinder can infer future endangering conduct based on parent's past conduct when assessing child's best interest).
J.H.G.'s child advocate volunteer testified that it was not in J.H.G.'s best interest to terminate Father's parental rights because J.H.G.'s placement options were limited due to his behavioral and medical issues. J.H.G.'s caseworker, however, testified that despite the lack of a permanent placement for the eleven-year old boy, termination of Father's parental rights was, nevertheless, in his best interest because it would provide DFPS with "more options in terms of finding placements," and, given Father's drug use and criminal conduct, termination would also allow J.H.G. to "grow up in a stable and drug free environment."
Although his caseworker acknowledged that there was a bond between Father and J.H.G., she also testified that the bond was not strong because "[J.H.G.] didn't have a relationship with his father until this case." She further testified that J.H.G. told her "that he likes visiting with [his] father due to that's the only contact he has at this time. He stated that he prefer[s] to visit with his mother but [DFPS] cannot find his mother. And he prefer[s] to visit with his siblings which he has been doing." The caseworker also testified that Father's visits with J.H.G. were inconsistent and that Father had not visited the boy in over a month prior to the termination of Father's parental rights. J.H.G. did not testify at trial, but the record reflects that he told his child advocates' volunteer that he wanted to live with Father.
In light of the record demonstrating Father's ten year history with criminal conduct and drug use, the trial court had sufficient evidence to find that terminating his parental rights was in the child's best interest, particularly in light of J.H.G.'s need for a safe, stable, supportive and predictable environment. After considering the relevant factors under the appropriate standards of review, we hold that the evidence is factually sufficient to support the trial court's finding that termination of the parent-child relationship is in J.H.G.'s best interest.
With regard to the factual sufficiency of the evidence, the record reflects that J.H.G. had developed a bond with Father, enjoyed visiting with him, and had expressed a desire to live with Father. J.H.G.'s child advocate volunteer testified it was not in J.H.G.'s best interest to terminate Father's parental rights because the child's placement options were limited due to his behavioral and medical issues. There is also evidence that Father was employed for eight months and owned a home by the time of trial, and that he had complied with his service plan and participated in the rehabilitative services offered to him by DFPS. Despite Father's improved conduct and the recent relationship he developed with his eleven-year old son, the record demonstrates that this evidence was not so significant that it weighed heavily against termination or outweighed the danger Father's history demonstrated that he posed to J.H.G., as evidenced by Father's extensive criminal history that spanned over ten years and included both violent and non-violent crimes, and his illegal drug usage, including drug use that occurred after paternity was confirmed and while J.H.G. was in DFPS's custody. In light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the best interest finding is not so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination of Father's parental rights is in J.H.G.'s best interest. See In re J.F.C., 96 S.W.3d at 266-67. After considering the relevant factors under the appropriate standards of review, we hold that the evidence is factually sufficient to support the trial court's finding that termination of the parent-child relationship is in J.H.G.'s best interest.
We overrule Father's challenge to the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of Father's parental rights was in J.H.G.'s best interest.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Jennings, Huddle and Lloyd.