Opinion
No. 04-16-00058-CV
05-25-2016
IN THE INTEREST OF M.L. JR., a Child
MEMORANDUM OPINION
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-PA-00628
Honorable Richard Garcia, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Jason Pulliam, Justice AFFIRM
Elida R. appeals the trial court's order terminating her parental rights to her son, M.L., Jr. In her sole issue on appeal, Elida asserts the evidence is legally and factually insufficient to support the trial court's finding that termination is in M.L.'s best interest. We affirm.
To protect the identity of minor children, we refer to the child by his initials and his mother as Elida. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). Although the trial court terminated both parents' parental rights, Elida is the only parent to appeal the trial court's judgment. Therefore, this court will only discuss the trial court's judgment as it pertains to her.
BACKGROUND
Elida was the first witness to testify at the termination hearing. She stated M.L. was born on August 9, 2014, she was using methadone while she was pregnant, and she tested positive for hydro-codeine at the time. Elida contended the hydro-codeine was prescribed for her despite her being pregnant. As a result of his mother's drug usage, M.L. tested positive for opiates and methadone when he was born, and because he was going through withdrawal, he was placed on a morphine drip. Elida said the Department of Family and Protective Services ("the Department") did not remove M.L. from her care when he was born because she was already on a family service plan. However, she admitted that because she was not engaged in any services under the plan, the Department removed M.L. in March 2015 and filed its petition for conservatorship and termination of parental rights.
After a reset from November 2015, the termination hearing commenced on December 18, 2015. --------
Elida said the first service she engaged in after the Department removed M.L. was to attend narcotics anonymous classes. She went to eight classes, but did not complete the program. She testified she did not remember whether she took illegal substances on April 14, 2015 or whether the Department had her do a drug test. She claimed she was taking codeine prescribed for her in April and September of 2015 for abdominal pain and a kidney infection. She said she provided the prescriptions to the Department. Elida stated that, in June and July of 2015, she used codeine, Zofran, and Tramadol, all of which were prescribed through the emergency room at the Baptist Medical Center. She did not know the name of the prescribing physician. Again, she said she gave the prescriptions to the Department. In August 2015, she underwent a drug assessment, but did not return after the assessment for outpatient treatment until one month before the original date set for the termination hearing to commence (November of 2015). At the November 2015 assessment, outpatient treatment was again recommended, but Elida said she thought she should have inpatient treatment. When asked why she needed inpatient treatment, Elida stated she did not think she needed the help, but she wanted to "stay away from" the prescribed medications because everyone was giving her a "hard time."
Elida said she visited with her son, but she also missed visits because she was unable to submit to four drug tests because of her work schedule. She said she cleans the house and office for someone who pays her in cash. Elida stated she has stable housing for M.L. because she resides with a roommate in a house, and she pays $250 in rent. Elida admitted she has not provided the Department or the child's attorney with her address because she is "working on getting a new apartment." As to the house she shares with a roommate, Elida said she has been there for four months. When first asked for the roommate's name, Elida responded, "It's just a friend." Elida had to be asked a second time if she knew the roommate's name before she identified the woman as Sarah [V.]. In addition to Sarah, Sarah's husband and two children also live at the house. When first asked for the husband's name, Elida responded, "I really don't speak to them. It's just the roommate. I speak to her because she is the one that rented me the room. I don't get involved with them. I only talk to her." When asked a second time if she knew the husband's name, Elida responded, "It's Chris. Chris [G.], I believe, yeah." Elida said she knew Sarah and Chris did not have criminal records because she "talk[ed] to the wife a lot."
Elida stated she engaged in some services such as parenting and counseling. She admitted she has not given any money to M.L., although she has bought him clothes and toys. She said she earns $350 per week.
The next witness was the child's father, Moses L., who was incarcerated at the time of the hearing and participated telephonically. Moses said he took "full responsibility" for Elida being on drugs because "she was a good chick when [he] met her and [he] got her on drugs [specifically, heroin]. . . ." Moses described Elida as a good person who made bad choices. Moses stated he had no family with whom M.L. could be placed, and he would like Elida to have M.L.
Finally, the Department caseworker, Karina N., testified. Karina testified that Elida has not completed every requirement of her service plan. As for drug treatment, she said Elida started drug treatment in August 2015, but was dropped from the program because she stopped attending. She said Elida resumed drug treatment in November 2015, which is when the termination hearing was originally scheduled to commence. Also in November, Elida began a psychosocial assessment, but she completed only half the program and was discharged from counseling based on "no-shows." According to Karina, Elida had only four visits with her son during the pendency of the case. Elida was entitled to weekly visitation if her drugs tests were negative. Elida completed only nine drugs tests, but she was not allowed visitation. Karina did not explain why Elida was not allowed visitation after all of the drugs tests, but she said she allowed for two visits because, although she did not have the drug test results, she knew Elida had submitted to the drug tests.
Karina admitted Elida gave her prescriptions for drugs, but she said they were unreadable and outdated; therefore, she could not verify that hydro-codeine, Tramadol, and Zofran had been prescribed for Elida. According to Karina, Elida did not show up for twenty requested drug tests. Karina said she has not been able to verify Elida's employment, and Elida has not provided any verification, including a letter from her employer, that she is employed. Although Karina asked Elida to provide her with the address of her current residence, Elida has not done so. Karina said she has not been able to verify that Elida registered for or participated in parenting classes.
Karina next described M.L.'s condition. She said he was "delayed" when he first came into the Department's care, he has shown some progress but his speech must be evaluated, he does not chew his food instead he just swallows, and he has been diagnosed with pica, which is a condition where people eat nonedible things. She said M.L. will try to eat his clothes, diaper, and crib. As a result of this condition, M.L. must have a one-on-one caregiver to attend him, including checking him frequently in the night to ensure he is not choking on something. During the day, M.L. must sit in a chair wearing jeans, without which he will pick at his skin. M.L. cannot wear a shirt because he will try to eat it. Karina said the Department has not told Elida about this condition. When asked if Elida "offered, or inquired, or been around enough to know [M.L.'s] needs at this time," Karina responded, "No."
Karina testified terminating Elida's parental rights was in M.L.'s best interest because Elida has made no effort to obtain a secure placement for the child, no effort to stay drug-free, no effort to provide the child with a safe environment, and no effort to meet M.L.'s needs. Karina did not believe Elida had shown any progress or made any positive changes since the case began. Karina believed Elida posed a physical danger to M.L. because Elida has not proven she can care for the child, nor has she proven she can stay off drugs. Karina was not aware of any specific parenting skills possessed by Elida that would allow Elida to care for M.L., and Elida has not taken advantage of all the programs offered by the Department that would help her improve her lifestyle and make her an appropriate parent. Karina said Elida told her she had no support system to help her care for M.L. However, Karina said she spoke to Elida's aunt who said she travelled frequently, but could provide some support for the child. The aunt did not say she could be a support for Elida. Karina stated that M.L.'s present foster parents are willing to adopt him, although they would need extra care for the child. Karina said that during the nine months of the case, Elida had two other homes, other than her current address.
On cross-examination, Karina admitted Elida had done some of her service plan requirements. For example, Elida told Karina she was employed, but Karina had not yet verified the employment. Karina admitted Elida may be attempting to comply with some of her plan requirements, but she [Karina] was not provided with any paperwork and had yet to verify what actions Elida may have taken. Karina admitted that she has not observed any of the visits Elida had with her son, although she believes the two do not have a "real relationship."
After Karina's testimony, all sides rested, closed, and, on January 8, 2016, the trial court terminated Elida's parental rights on the grounds that termination was in M.L.'s best interest, and Elida (1) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department for not less than six months, and (a) the Department had made reasonable efforts to return the child to the mother; (b) the mother had not regularly visited or maintained significant contact with the child; and (c) the mother had demonstrated an inability to provide the child with a safe environment; (2) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child's removal from the mother under Chapter 262 for the abuse or neglect of the child; (3) 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 (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; and (4) been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription. TEX. FAM. CODE ANN. § 161.001(b)(1) (N), (O), (P), (R) (West Supp. 2015). On appeal, Elida challenges only the best interest finding.
BEST INTEREST
A trial court may order termination of the parent-child relationship only if the court finds by clear and convincing evidence one or more statutory grounds for termination and that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(1), (2); § 161.206(a) (West 2014). "'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." Id. § 101.007. We review the sufficiency of the evidence to support the termination of parental rights under the well-established standards for legal and factual sufficiency of the evidence. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
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 § 263.307(a). In determining whether a child's parent is willing and able to provide the child with a safe environment, the court should consider: (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 or other agency; (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; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id. § 263.307(b) (West Supp. 2015).
Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (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 for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that 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.
Finally, evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(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. 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 her past conduct and determine whether termination of parental rights is in the child's best interest. Id.
In this case, M.L. was born with symptoms of withdrawal due to Elida's ingestion of drugs during her pregnancy. As a result, he was born "delayed" and must undergo speech evaluation. M.L. was only about eighteen months old at the time of the termination hearing and, therefore, too young to state his own desires. He suffered from a condition (pica) that caused him to try to eat non-edible items, he did not chew his food, he needed almost constant attention, and his clothing had to be carefully selected due to the pica condition. Elida said she was willing to complete counseling services, but she was discharged from counseling because she missed several appointments. Although there was no evidence of abusive or assaultive conduct or a history of substance abuse by M.L.'s family (with the exception of Elida's own drug use), Elida provided little information about the family with whom she was staying other than to say she knew Sarah and Chris did not have criminal records because she "talk[ed] to the wife a lot." Elida knew little else about her roommate's family.
With the exception of an aunt who could provide limited support for M.L., there was no other extended family or friends to help Elida. Karina testified Elida possessed no parenting skills helpful to M.L. Elida has not "offered, or inquired, or been around enough to know [M.L.'s] needs at this time." Elida said she attended some parenting classes, but Karina did not verify that Elida participated in parenting programs available to her. During the pendency of the case, Elida provided Karina with two prior addresses, and Elida admitted she has not provided the Department with her current address because she is "working on getting a new apartment." Elida missed several visits with her son due to her failure to take drug tests. Elida continues to use drugs she contends are prescribed, although she never provided the Department with current prescriptions. Elida stated she did not think she needed help with her use of drugs, but she wanted to "stay away from" the prescribed medications because everyone was giving her a "hard time."
The record contains almost no information about the foster family, although they have expressed a willingness to adopt M.L. provided they receive assistance.
CONCLUSION
After considering the statutory factors and the Holley factors and viewing the evidence in the light most favorable to the trial court's best interest finding, we conclude the trial court could reasonably have formed a firm conviction that termination of Elida's parental rights is in M.L.'s best interest. Thus, the evidence is both legally and factually sufficient to support this finding. Accordingly, we overrule Elida's issue on appeal and affirm the trial court's Order of Termination.
Jason Pulliam, Justice