Opinion
04-21-00517-CV
05-18-2022
IN THE INTEREST OF J.S.R., J.A.R., Jr., A.A.R., and M.S., Children
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA01748 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Irene Rios, Justice
MEMORANDUM OPINION
IRENE RIOS, JUSTICE
Appellant Mother appeals the trial court's order terminating her parental rights to her children, Jane, Jack, Adam, and Mona (collectively, "the children"). Appellant Father appeals the trial court's order terminating his parental rights to his child, Mona. Mother and Father each challenge the sufficiency of the evidence supporting the trial court's best-interest findings. In his second issue, Father argues the trial court abused its discretion when it did not grant him conservatorship of Mona. We affirm the trial court's order.
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 children using the pseudonyms "Jane," "Jack," "Adam," and "Mona." See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2). The trial court's order terminated both Mother's and Father's parental rights to the children.
The father of Jane, Jack, and Adam does not appeal the trial court's order terminating his parental rights to those children.
Background
The Department of Family and Protective Services ("the Department") first became involved in the underlying case when Mona tested positive for methamphetamines at birth.
On August 26, 2020, the Department filed a petition seeking temporary managing conservatorship of Mona and termination of Mother's and Father's parental rights. On September 8, 2020, the Department filed its first amended petition also seeking temporary managing conservatorship of Jane, Jack, and Adam and termination of Mother's parental rights to those children. The trial court granted the Department temporary managing conservatorship, and the Department placed the children with their maternal aunt.
On October 14, 2021, the trial court held a bench trial. The trial court heard testimony from Michelle Castillo, the Department's caseworker, Mother, and Father.
The trial court also heard testimony from Jane, Jack, and Adam's father; however, his testimony is not relevant to this appeal.
On November 17, 2021, the trial court signed an order terminating Mother's and Father's parental rights to Mona, and Mother's parental rights to Jane, Jack, and Adam. Specifically, the trial court terminated Mother's parental rights based on statutory grounds (O), (P), and (R), and Father's parental rights based on statutory grounds (N), (O), and (P) in subsection 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (P), (R). The trial court also found that it was in the respective children's best interests to terminate Mother's and Father's parental rights. See id. § 161.001(b)(2). Mother and Father appeal.
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 Interests
Mother challenges the sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the best interests of the children. Father challenges the sufficiency of the evidence to support the trial court's finding that termination of his parental rights was in the best interest of Mona.
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.
Emotional and Physical Dangers to the Children
"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." In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied) (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.- San Antonio 1998, pet. denied)). "Continued illegal drug use [by the parent] . . . is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct, and that termination is in the best interest of the child." See In re D.M.M., No. 14-16-00664-CV, 2017 WL 61847, at *5 (Tex. App.-Houston [14th Dist.] Jan. 5, 2017, pet. denied) (mem. op.); see also Tex. Fam. Code Ann. § 263.307(b)(8) (stating one of the factors to consider in a best interest determination is "whether there is a history of substance abuse by the child's family or others who have access to the child's home"). "This court considers a parent's conduct before and after the Department's removal of the children." In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied).
According to Castillo, the children came into the Department's care because Mona tested "positive at birth for methamphetamines." Mother and Father each completed a drug treatment program. After completion of their respective drug treatment programs, Mother and Father relapsed into illegal drug use together.
Following the relapse, the Department attempted to enroll Mother in another drug treatment program. However, Mother was discharged from the program due to lack of attendance. The drug treatment program allowed Mother to restart the program, but Mother was discharged again because she tested positive for methamphetamines. Mother missed approximately seven out of twelve random drug tests, though Castillo admitted Mother told Castillo Mother would be unable to make the appointments because she did not have transportation. Finally, Castillo testified that Mother is currently eight months pregnant and still testing positive for methamphetamines. Because of Mother's inability to remain sober, Castillo testified Mother has not been able to address the issues that led to the children being placed into the Department's care.
Mother admitted she relapsed and stated she knew her continuing drug use would jeopardize her parental rights, but described her drug use as "a mistake." While Mother did request a referral for inpatient drug treatment before trial-and had an appointment scheduled with OSARafter the trial-"evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices." See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (rejecting an appellate court's attempt to attribute greater weight to parent's recent improvements and less to parent's past challenges in its legal sufficiency review).
Outreach, Screening, Assessment, & Referral
Father was in and out of drug treatment programs throughout the case and was eventually referred to an inpatient drug treatment program. However, Father "walked out" the same day he started the inpatient program because "it would be too long for him[]" to complete. Castillo testified Father missed approximately seven random drug tests and Father's most recent two drug tests were a concern for the Department. Father responded he missed drug tests because he did not have transportation.
Castillo testified she doesn't believe Father can support Mona's emotional needs because "[h]e needs to . . . become sober . . . before he can take care of [Mona]." Father also admitted he relapsed into drug use but did not immediately restart drug treatment because he didn't have a way to contact the Department. He further testified he did not contact the Department due to his "miscommunication and mistakes."
Here, the trial court could have concluded Mother's and Father's continued illegal drug use posed an emotional and physical danger to the children and that termination of their rights was in the best interests of their respective children. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.- Fort Worth 2003, no pet.) ("Parental and caregiver illegal drug use and drug-related criminal activity likewise supports the conclusion that the children's surroundings endanger their physical or emotional well-being." (citing In re S.D., 980 S.W.2d at 763)); see also D.M.M., 2017 WL 61847, at *5. Accordingly, this factor weighs in favor of termination.
Emotional and Physical Needs of the Children and Plans for the Children
"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 at 693. 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.
Here, the trial court could have concluded that Mother's and Father's illegal drug use compromises their ability to support the children's emotional and physical needs. See In re K.M., No. 04-08-00037-CV, 2008 WL 2923655, at *2 (Tex. App.-San Antonio July 30, 2008, pet. denied) (mem. op.) (holding mother was "unable to provide for the emotional and physical needs of her children" because of her continued illegal drug use); see also J.L.B., 2017 WL 4942855, at *7 ("A factfinder may infer from a parent's past inability or unwillingness to meet a child's physical and emotional needs an inability or unwillingness to meet a child's needs in the future.").
While Castillo testified the children have bonded with Mother and Mona has bonded with Father, she also stated that maternal aunt is able to meet all the children's needs and the placement with maternal aunt is a long-term placement that could lead to adoption. See In re D.M., 452 S.W.3d 462, 472 (Tex. App.-San Antonio 2014, no pet.) ("The stability of the proposed home environment is an important consideration in determining whether termination is in the child[ren]'s best interest[s]."). Castillo further testified there are no medical concerns with the children and the children are on track in school and "doing well." See In re A.M.M., 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.-San Antonio May 6, 2020, pet. denied) (mem. op.) (indicating evidence the child is "thriving in the current placement" in a "stable and nurturing environment with a planned adoption" supported the trial court's best-interest determination). Accordingly, this factor weighs in favor of termination.
Abilities, Acts, and Omissions of the Parents and Excuses
Castillo testified Mother's service plan required her to take and pass random drug tests and participate in drug treatment, domestic violence classes, anger management classes, a psychological evaluation, counseling, and visitation with the children. Castillo testified Mother engaged in her parenting classes, the psychological evaluation, and consistently attended visitation with the children.
As mentioned above, however, Mother failed some of her drug tests and did not show up for approximately seven drug tests throughout the case. While Mother completed her first drug treatment program, she relapsed and has failed to complete a second drug treatment program. Castillo further testified Mother did not complete her domestic violence classes, anger management classes, or counseling. See Tex. Fam. Code Ann. § 263.307(b)(10), (11) (stating a court should consider the parent's willingness to seek out, accept, and complete counseling services, and effect positive environmental and personal changes when making a best-interest determination). Mother testified she was unable to attend her domestic violence classes, anger management classes, and drug tests because she lacked transportation. Mother further testified she is currently working on all her remaining services. "However, a trial court is not bound to accept the truth or accuracy of a parent's testimony, either as to past actions or future intentions." See D.M., 452 S.W.3d at 472.
While Castillo did not testify to all the services Father was required to participate in, she testified the Department's main concern was with Father's illegal drug use. Castillo stated Father's main service was to complete drug treatment "because that's what he's struggling with." As mentioned above, the Department was concerned with Father's two most recent drug tests and Castillo testified Father had missed approximately seven drug tests during the case. Father testified he missed some of the drug tests because he lacked transportation. Although Father completed his first drug treatment, he admitted he "didn't learn anything from that class[.]" Castillo testified Father relapsed and-when he was re-referred to an inpatient drug treatment program-Father chose not to participate because it would take too long to complete. Castillo testified Father just recently began an outpatient program. But see J.O.A., 283 S.W.3d at 346 ("[E]vidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices.").
Castillo further testified Father is unable to support Mona's physical needs because "[h]e hasn't had a stable job" in the fourteen months the case has been pending, "so [she is] not sure . . . he's going to be able to keep the job" he claims to have recently obtained. Castillo did testify, however, that Father completed his domestic violence classes, psychological evaluation, and parenting classes.
Here, evidence of Mother's and Father's unwillingness to engage in their services to address their drug addiction supports the trial court's finding that termination of their parental rights is in the children's best interests. Further, the trial court-as the sole judge of the credibility of the witnesses and the weight to be given their testimony-was not bound to accept the truth of Mother's and Father's excuses for noncompliance with their service plans. See HealthTronics, Inc., 382 S.W.3d at 582.
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 Mother's parental rights is in the children's best interests and termination of Father's parental rights is in Mona'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 a reviewing 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 findings.
Mother's sole issue is overruled. Father's first issue is also overruled.
Conservatorship
In his second issue, Father argues he should be named Mona's managing conservator. However, because we have determined the trial court did not err in terminating Father's parental rights, Father no longer has any legal rights with respect to Mona and cannot challenge the portion of the termination order that relates to appointment of a conservator for Mona. See In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *7 (Tex. App.-San Antonio May 15, 2019, pet. denied) (mem. op.); In re E.O.R., No. 04-18-00248-CV, 2018 WL 5808293, at *5 (Tex. App.- San Antonio Nov. 7, 2018, no pet.) (mem. op.); In re L.T.P., No. 04-17-00094-CV, 2017 WL 3430894, at *6 (Tex. App.-San Antonio Aug. 9, 2017, pet. denied) (mem. op.).
Father's second issue is overruled.
Conclusion
The judgment of the trial court is affirmed.