Opinion
No. 04-21-00534-CV
04-06-2022
In the INTEREST OF J.R.M., a Child
APPELLANT ATTORNEY: Joseph Bohac, 111 Soledad, Ste. 300, San Antonio, TX 78205, Dennis L. Moreno, Law Office of Dennis L. Moreno, 7800 IH-10 West, Ste. 535, San Antonio, TX 78230-4712. APPELLEE ATTORNEY: Nathan E. Morey, 101 W. Nueva, Suite 525, San Antonio, TX 78205, Jonathan Mason, Bexar County District Attorney's Office, 300 Dolorosa, 5th Floor, San Antonio, TX 78205, Jeffrey Martinez, Attorney at Law, P.O. Box 691671, San Antonio, TX 78248.
APPELLANT ATTORNEY: Joseph Bohac, 111 Soledad, Ste. 300, San Antonio, TX 78205, Dennis L. Moreno, Law Office of Dennis L. Moreno, 7800 IH-10 West, Ste. 535, San Antonio, TX 78230-4712.
APPELLEE ATTORNEY: Nathan E. Morey, 101 W. Nueva, Suite 525, San Antonio, TX 78205, Jonathan Mason, Bexar County District Attorney's Office, 300 Dolorosa, 5th Floor, San Antonio, TX 78205, Jeffrey Martinez, Attorney at Law, P.O. Box 691671, San Antonio, TX 78248.
Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice, Liza A. Rodriguez, Justice
Opinion by: Patricia O. Alvarez, Justice
In this parental rights termination case, the trial court terminated Mom's parental rights to her child J.R.M.i On appeal, Mom challenges the legal and factual sufficiency of the evidence supporting the trial court's finding on the best interest of the child.
Because the evidence was legally and factually sufficient under the heightened evidentiary standards to support the trial court's finding, we affirm the trial court's order.
BACKGROUND
When Mom could not care for J.R.M., she arranged for her cousin to take in J.R.M. J.R.M. lived with Mom's cousin's family beginning in May 2020, but in January 2021, the Department received a referral indicating that J.R.M. had inappropriately touched another child in the home. Because Mom was then incarcerated on charges of human trafficking and prostitution, J.R.M. was placed in a foster home.
The Department created a service plan for Mom, which included a psychological evaluation, completing courses in parenting and domestic violence, and obtaining and maintaining stable housing and employment. Mom completed the psychological evaluation, but she did not submit to any drug testing, complete the parenting or domestic violence courses, or provide proof of stable housing or employment.
After a less than half-day bench trial on the merits, the trial court found by clear and convincing evidence that Mom's course of conduct met the grounds in Family Code subsections 161.001(b)(1)(N), (O), and (P), and that terminating Mom's parental rights was in J.R.M.’s best interest. The trial court terminated Mom's parental rights to J.R.M. and appointed the Department as J.R.M.’s permanent managing conservator, and Mom filed a notice of appeal.
Before we address Mom's sole issue, we briefly recite the applicable evidentiary and appellate review standards.
EVIDENCE REQUIRED , STANDARDS OF REVIEW
"[I]n a bench trial, the judge as the trier of fact weighs the evidence, assesses the credibility of witnesses and resolves conflicts and inconsistencies." In re S.J.R.-Z. , 537 S.W.3d 677, 691 (Tex. App.—San Antonio 2017, pet. denied) ; accord In re F.M. , 536 S.W.3d 843, 844 (Tex. App.—San Antonio 2017, no pet.).
On review, an appellate court must not "substitute its own judgment for that of a reasonable factfinder." In re Commitment of Stoddard , 619 S.W.3d 665, 668 (Tex. 2020) ; accord In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006).
The evidentiary standard the Department must meet and the statutory grounds the trial court must find to terminate a parent's rights to a child are well known, as are the legal and factual sufficiency standards of review. We apply these standards here.
Clear and Convincing Evidence. If the Department moves to terminate a parent's rights to a child, the Department must prove by clear and convincing evidence that the parent's acts or omissions met one or more of the grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code and terminating the parent's rights is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b) ; In re J.F.C. , 96 S.W.3d 256, 261 (Tex. 2002). The same evidence used to prove the parent's acts or omissions under section 161.001(b)(1) may be used in determining the best interest of the child under section 161.001(b)(2). In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002) ; In re D.M. , 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) ; see also Tex. Fam. Code Ann. § 161.001(b). The trial court may consider a parent's past deliberate conduct to infer future conduct in a similar situation. In re D.M. , 452 S.W.3d at 472.
Statutory Grounds for Termination. The Family Code authorizes a court to terminate the parent-child relationship if, inter alia, it finds by clear and convincing evidence that the parent's acts or omissions met certain criteria. See Tex. Fam. Code Ann. § 161.001(b). Here, the trial court found Mom's course of conduct met grounds (N), (O), and (P):
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) 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; [and]
(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or
(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance.
Id. § 161.001(b)(1).
Factual Sufficiency. Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H. , 89 S.W.3d at 25 ; accord In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C. , 96 S.W.3d at 266 ; accord In re H.R.M. , 209 S.W.3d at 108.
BEST INTEREST OF THE CHILD
In her only issue, Mom argues the evidence was legally and factually insufficient to support the trial court's finding that terminating her parental rights is in J.R.M.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2).
A. Unchallenged Statutory Grounds Findings
When accompanied by a best interest of the child finding, a single statutory ground finding is sufficient to support a parental rights termination order. In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003) ; In re R.S.-T. , 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.).
Here, the trial court found Mom constructively abandoned the child, failed to comply with her Family Service Plan, and used a controlled substance in a manner that endangered the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), (P).
Mom does not challenge the grounds findings; she challenges only the best interest finding.
B. Best Interest of the Child Factors
The Family Code statutory factors and the Holley factors for best interest of the child are well known. Applying each standard of review and the applicable statutory and common law factors, we examine the evidence pertaining to the best interest of the child.
Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in determining the best interest of a child:
(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, the child's parents, other family members, or others who have access to the child's home;
(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, including providing the child and other children under the family's care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
(C) guidance and supervision consistent with the child's safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child's needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.
Tex. Fam. Code Ann. § 263.307(b) ; see In re A.C. , 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors).
Holley Factors. The Supreme Court of Texas identified the following factors to determine the best interest of a child in its landmark case Holley v. Adams :
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C. , 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).
The trial court heard the following testimony regarding Mom's course of conduct, including, e.g., her history of substance abuse, her criminal history and pending criminal charges, her interactions with J.R.M., her ability to provide for J.R.M.’s needs, and J.R.M.’s placement.
C. Mom's Ability to Meet Child's Needs
1. Mom's Service Plan
Mom's service plan required her to complete a psychological evaluation, and complete courses in parenting and domestic violence. The plan also required Mom "to find a stable job so that she will be able to show the Department proof that she is able to maintain a stable home for [J.R.M.] to be safe in." The plan did not expressly require random drug testing—that testing was required by the court's February 5, 2021 order. The case worker reviewed with Mom the plan, and the trial court's requirement that Mom submit to random drug testing. Mom acknowledged that the case worker reviewed the plan with her.
2. Indicia of Parent-Child Relationship
During the great majority of the time this case was pending, Mom lived in Arizona, but she did not provide her address to the Department. She visited with J.R.M. only virtually, she had not seen him in person for over one year, and J.R.M. does not have a bond with Mom.
Though she denied her guilt, Mom admitted she was previously arrested for human trafficking and prostitution, and she has those same charges pending against her in Louisiana. The caseworker noted that while J.R.M. was still in Mom's care, she allowed him to be cared for by an adult male who had a criminal history of abusing a child. See TEX. FAM. CODE ANN. § 263.307(b)(1), (7), (11), (12) ; Holley , 544 S.W.2d at 372 (factors (B), (C), (D), (G), (H)).
3. Safe, Stable Housing
Under her service plan, Mom was required to establish and maintain stable housing for J.R.M. Although the caseworker counseled with Mom about the plan requirements, Mom failed to provide her home address, which was in Arizona, until shortly before trial, and the Department was not able to verify that Mom lived at that address or had safe, stable housing for J.R.M. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12) ; Holley v. Adams , 544 S.W.2d 367, 372 (Tex. 1976) (factors (B), (C), (D), (G), (H)).
4. Providing for Child's Needs
Under her service plan, Mom was also required to provide proof of stable employment. When asked how she could provide for her children, Mom testified that she was self-employed as a hair stylist, but she did not provide proof of employment or income as required. Further, during the case, Mom did not provide any support for J.R.M. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12), (13) ; Holley , 544 S.W.2d at 372 (factors (B), (C), (D), (G), (H), (I)).
5. Substance Abuse
Mom had a history of drug abuse, and she was admonished in her service plan and by the trial court that if she did not comply with her plan's requirements, she could lose her parental rights to J.R.M. Despite the trial court's order for her to submit to random drug testing, Mom denied that she had to be drug tested, and it is undisputed that Mom did not submit to even a single drug test. See TEX. FAM. CODE ANN. § 263.307(b)(1), (8), (10), (11), (12) ; Holley , 544 S.W.2d at 372 (factors (B), (C), (D), (H)).
6. J.R.M.’s Placement
J.R.M. is currently living with his great aunt. The great aunt is ensuring all of J.R.M.’s needs are met, including his physical and emotional needs, and she will be able to meet them in the future. The great aunt is willing to continue caring for J.R.M. indefinitely, and she wants to adopt him. J.R.M. is bonded to his great aunt, and he is very happy living with her. See TEX. FAM. CODE ANN. § 263.307(b)(1), (12), (13) ; Holley , 544 S.W.2d at 372 (factors (A), (B), (C), (D), (F), (G)).
D. Ad Litem's Recommendation
The ad litem recommended that it was in J.R.M.’s best interest that Mom's rights be terminated so that J.R.M. could continue to live with his great aunt and be adopted by her. See TEX. FAM. CODE ANN. § 263.307(b)(1), (7), (8), (10), (11), (12) ; Holley , 544 S.W.2d at 372 (factors (B), (C), (D), (F), (G), (H)).
E. Sufficient Evidence
The trial court could have believed the testimony that Mom, despite her denial, had an ongoing substance abuse problem and she failed to complete any drug testing to avoid detection; she failed to provide proof of safe, stable housing; she failed to show stable employment; she failed to have meaningful contact with J.R.M.; and she was at risk of future incarceration for pending charges of human trafficking and prostitution. See In re S.J.R.-Z. , 537 S.W.3d at 691 ; In re F.M. , 536 S.W.3d at 844. It could also have believed the testimony that J.R.M. is doing well living with his great aunt and that she is meeting his present needs and would meet his future needs sufficient for him to thrive. See In re S.J.R.-Z. , 537 S.W.3d at 691 ; In re F.M. , 536 S.W.3d at 844.
Having reviewed the evidence under the appropriate standards, we conclude the trial court could have "reasonably form[ed] a firm belief or conviction" that it was in J.R.M.’s best interest for Mom's parental rights to be terminated. See In re H.R.M. , 209 S.W.3d at 108 (citing In re C.H. , 89 S.W.3d at 25 ). Therefore, the evidence was legally and factually sufficient to support the trial court's best-interest-of-the-child finding. See TEX. FAM. CODE ANN. § 161.001(b)(2) ; In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002).
We overrule Mom's sole issue.
CONCLUSION
For the reasons given above, we affirm the trial court's order.
DISSENTING OPINION
Dissenting Opinion by: Liza A. Rodriguez, Justice
This case was originally referred to the Department not because of any action or inaction by Mom, but because of an alleged incident of sexual misconduct by J.R.M. against another family member. Prior to the Department becoming involved, Mom had left J.R.M. in the care of her cousin in Texas while she sought to re-locate the family to Arizona. At trial, the caseworker acknowledged through her testimony that Mom, during her absence, had placed J.R.M. with an appropriate caregiver. According to the caseworker, before the Department's involvement, J.R.M. was healthy and going to school. The caseworker also testified that following the Department's investigation, no charges for neglect were brought against any of J.R.M.’s care providers with whom Mom had left J.R.M. Further, the caseworker agreed she had no concerns about Mom's mental health. Therefore, the undisputed evidence shows that Mom was meeting J.R.M.’s best interest before J.R.M.’s removal.
There is "a strong presumption that the child's best interest is served by maintaining the parent-child relationship." In re D.L.W.W. , 617 S.W.3d 64, 81 (Tex. App.—Houston [1st Dist.] 2020, no pet.). "Thus, we strictly scrutinize termination proceedings in favor of the parent." Id. ; In re N.L.D. , 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.). "And because of the strong presumption in favor of maintaining the parent-child relationship and the due process implications of terminating a parent's rights to her minor child without clear and convincing evidence, ‘the best interest standard does not permit termination merely because a child might be better off living elsewhere.’ " In re D.W.L.L. , 617 S.W.3d at 81 (quoting In re J.G.S. , 574 S.W.3d 101, 121-22 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) ) (internal quotations omitted). "Termination of parental rights should not be used as a mechanism to merely reallocate a child to better and more prosperous parents." In re D.W.L.L. , 617 S.W.3d at 81 ; see also In re J.G.S. , 574 S.W.3d at 121-22.
"Moreover, termination is not warranted ‘without the most solid and substantial reasons.’ " In re D.W.L.L. , 617 S.W.3d at 81 (quoting Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976) ) (internal quotations omitted). In parental-termination proceedings, the Department's "burden is not simply to prove that a parent should not have custody of her child; [it] must meet the heightened burden to prove, by clear and convincing evidence, that the parent should no longer have any relationship with her child whatsoever." Id. ; see In re K.N.J. , 583 S.W.3d 813, 827 (Tex. App.—San Antonio 2019, no pet.). Based on this record, the sparse evidence presented by the Department was conclusory and therefore no evidence at all. See In re A.H. , 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (explaining that conclusory "best interest" testimony such as a caseworker's testimony that a child would be better off with a new family, even if uncontradicted, does not amount to more than a scintilla of evidence and does not meet the clear and convincing standard). Other than the caseworker, no other witnesses were called by the Department, nor were any exhibits admitted during the forty-five-minute-long trial.
With regard to the finality of placement, the caseworker averred that the placement at the time of trial, as well as the initial placement where J.R.M. was left in the care of Mom's maternal cousin, were both meeting J.R.M.’s needs. According to the caseworker's testimony, the current placement was not interested in becoming "licensed," which the caseworker agreed was ultimately necessary for adoption. When asked about J.R.M.’s relationship with Mom, the caseworker stated that J.R.M. was "somewhat shy" and "wasn't interested in speaking about [Mom]," speculating that "maybe it's because they don't have a bond." The record does not indicate whether the caseworker ever witnessed any interaction between Mom and J.R.M. and presents no evidence to support her conclusion that J.R.M. did not have a bond with Mom. The caseworker did agree that Mom communicated with J.R.M. virtually during the time she had been away, including contacting the placement every couple of weeks.
The caseworker also stated in a conclusory fashion that J.R.M. was "very happy with his placement," but did not testify about whether any bond existed between J.R.M. and the placement, nor did she testify about any changes in particular emotional or physical needs of J.R.M. from the time before removal to the time after the Department became involved. The caseworker agreed generally that the placement would be able to meet J.R.M.’s emotional and physical needs now and in the future and that there were no medical or other concerns with the placement but did not elaborate on how she came to that conclusion. Likewise, other than to say he was aligned with the Department's position in seeking to terminate Mom's parental rights, no rationale was given by the ad litem as to why he believed it was in J.R.M.’s best interest.
With regard to the emotional and physical danger to the child now and in the future, Mom admitted during her testimony to having been arrested for a criminal offense. However, it was undisputed that she was out on bond and that the charges for which she was arrested were still pending. Further, there was no evidence that J.R.M. was endangered by Mom's arrest for alleged criminal activity. The caseworker testified that Mom had a "past history of drug use;" however, according to her testimony, she based this belief on statements Mom made during her psychological evaluation. The record does not reflect the type of drug or time frame involved in Mom's drug use, nor was she asked during her testimony. The caseworker also testified that in the past Mom had J.R.M. "around people that have had criminal history against children and in unsafe environments." However, when asked to specify the person to whom she was referring, she responded "it was a male adult." She could not recall the person's name. The caseworker also stated that no charges were brought against this person for allegedly assaulting J.R.M.
Because the long-term effects on a child whose relationship is forever and irrevocably severed from their parent are at stake, I urge the trial court and the parties to more completely develop the trial evidence in the future so that the depth of the appellate record is commensurate with the finality and gravity of parental termination. See In re E.F. , 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.) ("Given the constitutional rights of the parents in these proceedings, the future placement of the children involved, and the effect such placement will have on their lives, however, we urge the trial court and the parties to more completely develop the evidence at trial, so the appellate record is commensurate with the finality of parental termination.").
In reviewing the record, I conclude that there is insufficient evidence to support the trial court's best-interest finding in this case. As noted, the undisputed evidence shows that Mom was meeting J.R.M.’s best interest. The testimony presented at trial by the Department, and relied upon by the trial court, is conclusory and thus cannot be considered evidence. Therefore, I would reverse the portion of the trial court's judgment that terminated mom's parental rights. For these reasons, I respectfully dissent.
i We use aliases to protect the child's identity. See Tex. Fam. Code Ann. § 109.002(d) ; Tex. R. App. P. 9.8.