Opinion
04-22-00262-CV
10-26-2022
IN THE INTEREST OF M.Z.L., a Child
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-00478 Honorable Kimberly Burley, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
AFFIRMED
This appeal arises from the trial court's order terminating the parental rights of appellant P.T.L., the biological father of M.Z.L. By one issue, P.T.L. argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of P.T.L.'s parental rights is in the best interest of M.Z.L. Tex. Fam. Code Ann. § 161.001(b)(2). We affirm.
We refer to the child and the child's family members by their initials in accordance with the rules of appellate procedure. See Tex. R. App. P. 9.8(b)(2).
I. Background
In March 2021, the Texas Department of Family and Protective Services (hereinafter the "Department") initiated the underlying proceeding by filing a petition to terminate the parental rights of P.T.L. and A.I.G. to their fifteen-month-old child, M.Z.L. The termination petition was preceded by an investigation that was, in turn, prompted by a referral alleging neglectful supervision of M.Z.L., fighting between P.T.L. and A.I.G., and drug use. After the Department filed its termination petition, the trial court signed a temporary order appointing the Department as M.Z.L.'s temporary managing conservator, and M.Z.L. began living with a foster family. P.T.L. executed a family service plan that allowed for random drug testing and required his participation in individual therapy and domestic violence prevention classes. The family service plan was adopted and incorporated into a court order.
Ultimately, the Department's termination petition proceeded to a bench trial. Although P.T.L. and A.I.G. were provided with notice of the trial, neither appeared. Nonetheless, they were each represented by separate counsel at trial. Allison Debra Boroda, a Department case worker, and M.Z.L.'s foster mother testified at the bench trial. At its conclusion, the trial court found by clear and convincing evidence that P.T.L. failed to comply with specific provisions of a court order and that termination of his parental rights was in M.Z.L.'s best interest. Tex. Fam. Code Ann. § 161.001(b)(1)(O), (b)(2). P.T.L. timely appealed from the termination order.
The termination order also terminated the parental rights of A.I.G. She, however, did not appeal the termination of her parental rights and is not a party to this appeal.
II. Discussion
A. Standard of Review
A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in a child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2). 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.
We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). In reviewing the legal sufficiency of the evidence, 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." Id. at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. In reviewing the factual sufficiency of the evidence, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. "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.
B. Applicable Law: Best Interest
It is the burden of the party seeking termination to establish that termination is in the child's best interest. See In re J.F.C., 96 S.W.3d at 266. In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The set of factors is not exhaustive, and no single factor is necessarily dispositive of the issue. Id. at 372; In re A.B., 269 S.W.3d 120, 126 (Tex. App.-El Paso 2008, no pet.).
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. See Holley, 544 S.W.2d at 371-72.
We recognize 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) (per curiam). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a). Thus, we also consider the factors set forth in section 263.307(b) of the Family Code. Id. § 263.307(b). Additionally, evidence that proves one or more statutory grounds for termination may be probative of a child's best interest, but it does not relieve the State of its burden to prove best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
In conducting a best interest analysis, we consider direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.- San Antonio 2013, pet. denied). Additionally, a factfinder may measure a parent's future conduct by her past conduct in determining whether termination of parental rights is in the child's best interest. Id. In analyzing the evidence within the Holley framework, evidence of each Holley factor is not required before a court may find that termination is in a child's best interest. C.H., 89 S.W.3d at 27. Moreover, in conducting our review of a trial court's best interest determination, we focus on whether termination is in the best interest of the child, not the best interest of the parent. In re D.M., 452 S.W.3d 462, 470 (Tex. App.-San Antonio 2014, no pet.).
C. Analysis: Best Interest
1. Drug Use
P.T.L. admitted to Boroda that he continues to be a heavy marijuana user. Corroborating P.T.L.'s admission, Boroda testified that she has smelled marijuana on P.T.L. during their visits and that she has noticed a strong marijuana smell in P.T.L.'s apartment. Boroda also noted that P.T.L. failed to submit to between twenty-five and thirty drug tests.
Illicit drug use is relevant to multiple Holley factors, including the children's emotional and physical needs now and in the future (the second factor), the emotional and physical danger to the children now and in the future (the third factor), P.T.L.'s parental abilities (the fourth factor), the stability of P.T.L.'s home (the seventh factor), and the acts or omissions which may indicate an improper parent-child relationship (the eighth factor). See Holley, 544 S.W.2d at 371-72. "Additionally, a parent's illegal drug use exposes [a] child to the possibility that the parent may be impaired or imprisoned." In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op.) (citing In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.-Houston [14th Dist.] 2017, no pet.)).
2. Anger Management
Boroda expressed concern regarding P.T.L.'s temper, and as an example, she pointed to an episode that occurred during one of P.T.L.'s supervised visits. During a visit, P.T.L. alleged that M.Z.L. was injured. When the caseworker who was supervising the visit disagreed and took M.Z.L. away, P.T.L. "physically grabbed [the caseworker] and . . . pulled her to him and told her to put down his child." Although Boroda did not personally witness the encounter, immediately afterwards, she observed a "swollen red mark" on the caseworker's arm. Boroda also reviewed what she termed "threatening text messages" that P.T.L. sent to the caseworker in question. Boroda did acknowledge that P.T.L. completed three-quarters of the supervised visits with M.Z.L. that the family service plan envisioned and that many of these visits were positive, noting that on occasion P.T.L. would make M.Z.L. laugh. Nevertheless, Boroda expressed concern about P.T.L.'s temper, testifying that she had not "seen any evidence of [P.T.L.] being able to control his behavior when he is in a high stress situation."
Evidence of P.T.L.'s outburst with the Department caseworker supervising his visit with M.Z.L., even if the outburst was not directed at M.Z.L., supports the trial court's best-interest finding under the third Holley factor-emotional and physical danger to the children now and in the future. See Holley, 544 S.W.2d at 371-72; see also Tex. Fam. Code Ann. § 263.307(b)(12)(E) (providing that a court may consider whether a parent has adequate parenting skills to protect a child from repeated exposure to violence although violence may not be directed at the child); In re M.C.L., No. 04-17-00408-CV, 2017 WL 5759376, at *4 (Tex. App.-San Antonio Nov. 29, 2017, no pet.) (mem. op.) (assessing in relation to the third Holley factor a father's statement that "he loses his temper and he loses his cool and he says things that he sometimes regrets.").
3. Available Programs
Although P.T.L. was given the opportunity to participate in crafting a family service plan, he did not do so. P.T.L. also failed to complete several family service plan requirements. Specifically, he was discharged from a counseling program because of too many absences, and he failed to complete parenting and domestic-violence prevention classes or a drug assessment.
P.T.L.'s failure to avail himself of the counseling program and parenting and domestic-violence prevention classes implicates the fourth Holley factor - the parental abilities of the individuals seeking custody. Holley, 544 S.W.2d at 371-72. It also implicates the fifth Holley factor - the programs available to assist the individuals seeking custody to promote the child's best interest. Id. "A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of his child that he does not have the ability to motivate himself to seek out available resources needed now or in the future." In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied); see also Tex. Fam. Code Ann. § 263.307(b)(10), (11) (providing courts may consider willingness and ability of the child's family to seek out, accept, and complete counseling services and willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time); Holley, 544 S.W.2d at 371-72 (listing parental abilities of an individual seeking custody and programs available to assist the individual as a best-interest factor).
4. Stability of the Home
P.T.L.'s disengagement from the family service plan stood in contrast to the actions of M.Z.L.'s foster parents. At the time of trial, M.Z.L. was living with foster parents who wanted to adopt him. Boroda opined that M.Z.L.'s foster parents had been meeting his physical, emotional, and medical needs. As an example, Boroda noted that M.Z.L.'s foster parents were providing him with skills and occupational therapy. Boroda observed that M.Z.L. has "a great relationship with his foster brother and foster sister," and that he is "very connected or attached to his foster mom and runs to her for comfort or just to - to be held."
M.Z.L.'s foster mother testified that she wants to adopt M.Z.L. Foster mother has observed a blossoming in M.Z.L.'s social skills since he was placed in his foster home, relaying that:
I know from the beginning for about a month he just kind of sat on the sidelines. He didn't really want to engage with anybody. When all the other kids would play together he would kind of just more sit back and watch. Now he actually engages very well with other kids. He gets along really well with the other kids.Since his placement, M.Z.L.'s speech and developmental skills have also improved. Foster mother recounted that when M.Z.L. was first placed with her family, his speech and developmental skills were behind for a child of his age. With the help of therapy, M.Z.L. has made progress with these skills.
Boroda's and foster mother's testimony regarding M.Z.L.'s life with his foster family implicates the seventh Holley factor - the stability of the home or proposed placement. See Holley, 544 S.W.2d at 371-72 (listing the stability of the home as a best-interest factor); In re G.V., No. 14-02-00604-CV, 2003 WL 21230176, at *5 (Tex. App.-Houston [14th Dist.] May 29, 2003, pet. denied) (mem. op.) (noting the stability that a proposed placement promises "weigh[s] heavily in the court's finding that termination is in the best interest" of a child).
C. Disposition: Best Interest
Our review of the evidence regarding P.T.L.'s drug use, anger management issue, failure to avail himself of available programs, and the relative stability of M.Z.L.'s foster home yields that the second, third, fourth, fifth, seventh, and eighth Holley factors weigh in favor of termination. Accordingly, after viewing all of the evidence in the light most favorable to the best-interest finding, we conclude that the trial court could have formed a firm belief or conviction that termination of P.T.L.'s parental rights was in M.Z.L.'s best interest. See In re J.F.C., 96 S.W.3d at 266. We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court's best-interest finding or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in the child's best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); see also In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) (recognizing an appellate court need not detail the evidence if affirming a termination judgment). P.T.L.'s sole issue is overruled.
III. Conclusion
We affirm the trial court's parental termination order.