Opinion
04-21-00256-CV
12-08-2021
IN THE INTEREST OF N.M.A., N.Y.M.H.A. and D.M.A., Children
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA01667 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice.
AFFIRMED
A.A. appeals the trial court's order terminating his parental rights to his children N.M.A. (born 2018), N.Y.M.H.A. (born 2019), and D.M.A. (born 2020). A.A. argues the evidence is legally and factually insufficient to support the trial court's findings under Texas Family Code section 161.001(b)(1)(E). We affirm the trial court's order.
To protect the privacy of the minor children, we use initials to refer to the children and their parents. Tex. Fam. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
Background
In 2019, shortly after N.Y.M.H.A.'s birth, the Texas Department of Family and Protective Services received a referral regarding N.M.A. and N.Y.M.H.A. The referral arose from concerns that A.A and the children's mother, D.C., lacked stable housing and suffered from untreated mental health conditions. While the Department was investigating the May 2019 referral, it discovered evidence of domestic violence between A.A. and D.C. The Department removed N.M.A. from her grandfather's home, where she was living at the time, and it removed N.Y.M.H.A. from the hospital where she was born. The Department subsequently obtained temporary managing conservatorship over the children, placed them in foster care, and filed a petition to terminate A.A. and D.C.'s parental rights.
D.M.A. was born approximately a year after the Department removed N.M.A. and N.Y.M.H.A. Because A.A. and D.C. had not addressed the issues that led to the older children's removal, the Department took D.M.A. into custody from the hospital after her birth. The Department then obtained temporary managing conservatorship over D.M.A., placed her into the same foster care as her sisters, and filed a second petition to terminate A.A. and D.C.'s parental rights. The trial court eventually consolidated the two termination proceedings.
The Department created a family service plan requiring A.A. to, inter alia, attend domestic violence and parenting classes, engage in individual and couple's therapy, undergo a psychological evaluation and drug testing, and obtain stable housing and employment as a condition of reunification. A.A. completed a psychological evaluation, but he did not complete any other tasks in his service plan. The Department ultimately pursued termination of A.A.'s parental rights.
Ten months after D.M.A.'s removal and twenty-four months after N.M.A. and N.Y.M.H.A.'s removal, the trial court held a one-day bench trial at which A.A. was represented by counsel but did not personally appear. The trial court heard testimony from six witnesses: (1) Department caseworker Cindy Lima-Caceres, who removed N.M.A. and N.Y.M.H.A.; (2) Department caseworker Sherie Blauser-Leckie, who worked on this case "for about a year"; (3) Department caseworker Mari Anne Themann, who removed D.M.A.; (4) the court-appointed special advocate; (5) Ammie Martinez, the Department's legal caseworker; and (6) D.C. At the conclusion of trial, the court signed an order terminating A.A.'s parental rights pursuant to section 161.001(b)(1)(E), (N), (O), and (P) and finding that termination of A.A.'s parental rights was in the best interest of the children. A.A. appealed.
The trial court also terminated D.C.'s parental rights. That portion of the order is not at issue in this appeal.
Analysis
The "issues presented" section of A.A.'s brief purports to challenge the legal and factual sufficiency of the evidence supporting the trial court's findings under section 161.001(b)(1)(E) and (P). However, the remainder of his brief does not present any argument or authority as to subsection (P). Accordingly, only A.A.'s complaints regarding subsection (E) are preserved for our review. See TEX. R. APP. P. 38.1; In Interest of B.T.D., No. 01-16-00582-CV, 2017 WL 343613, at *8 (Tex. App.-Houston [1st Dist.] Jan. 20, 2017, no pet.) (mem. op); Selva v. Pinnacle Partners Fin. Corp., No. 04-19-00521-CV, 2011 WL 915737, at *1 n.1 (Tex. App.-San Antonio Mar. 16, 2011, no pet.) (mem. op.).
Standard of Review
The involuntary termination of a natural parent's rights implicates fundamental constitutional rights and "divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). "As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent." Id. The Department had the burden to prove, by clear and convincing evidence, both that a statutory ground existed to terminate A.A.'s parental rights and that termination was in the best interest of the children. TEX. FAM. CODE ANN. § 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). "'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." TEX. FAM. CODE ANN. § 101.007; In re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court's order of termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In reviewing the legal sufficiency of the evidence to support the trial court's findings, 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.O.A., 283 S.W.3d 336, 345 (Tex. 2009). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting evidence. 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. The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346.
Applicable Law
In his sole issue on appeal, A.A. challenges the legal and factual sufficiency of the evidence to support the trial court's predicate findings. In general, assuming a best interest finding, only one predicate ground under section 161.001(b)(1) is necessary to support a judgment of termination. In re A.V., 113 S.W.3d at 362; In re A.R.R., No. 04-18-00578-CV, 2018 WL 6517148, at *1 (Tex. App.-San Antonio Dec. 12, 2018, pet. denied) (mem. op.). When, as here, the trial court terminates a parent's rights on multiple predicate grounds, we may affirm on any one ground. In re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611-12 (Tex. App.-San Antonio 2012, no pet.). Accordingly, to be successful on appeal, an appellant must challenge all the predicate grounds upon which a trial court based its termination order. In re S.J.R.-Z., 537 S.W.3d at 682.
When an appellant does not challenge all the grounds that may support an order of termination, we typically do not address the sufficiency of the evidence of any of the predicate grounds for termination. See In re A.V., 113 S.W.3d at 361-62; In re S.J.R.-Z., 537 S.W.3d at 682. Instead, we must accept the validity of the unchallenged grounds and affirm the termination order. See In re A.V., 113 S.W.3d at 361-62; In re S.J.R.-Z., 537 S.W.3d at 682. However, because termination under subsection 161.001(b)(1)(D) or (E) may have implications for a parent's rights to other children, appellate courts must address a parent's challenge under those subsections. In re N.G., 577 S.W.3d 230, 236-37 (Tex. 2019). Therefore, we will consider A.A.'s sufficiency argument as to subsection (E) even though he does not challenge termination under subsections (N), (O), and (P). See In re A.B.R., No. 04-19-00631-CV, 2020 WL 1159043, at *2 (Tex. App.- San Antonio Mar. 11, 2020, pet. denied) (mem. op.).
Subsection (E) allows a trial court to terminate a parent's rights if it finds by clear and convincing evidence that the parent "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 § 161.001(b)(1)(E). Under subsection (E), the trial court determines whether there is evidence that a parent's acts, omissions, or failures to act endangered the child's physical or emotional well-being. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). "It is not necessary that the parent's conduct be directed at the child or that the child actually be injured; rather, a child is endangered when the environment or the parent's course of conduct creates a potential for danger which the parent is aware of but disregards." In re R.S.-T., 522 S.W.3d 92, 110 (Tex. App.-San Antonio 2017, no pet.). Courts may further consider parental conduct that did not occur in the child's presence, including conduct before the child's birth or after the child was removed from a parent's care. In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *4 (Tex. App.-San Antonio Aug. 21, 2019, pet. denied) (mem. op.).
Termination under subsection (E) may not be based on a single act or omission, but instead must be supported by evidence of "a voluntary, deliberate, and conscious course of conduct by the parent." In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.-San Antonio 2007, no pet.). In conducting a subsection (E) analysis, a trial court may consider "[d]omestic violence, want of self-control, and propensity for violence" as evidence of endangerment to a child. In re R.S.-T., 522 S.W.3d at 110 (internal quotation marks omitted).
Application
Lima-Caceres testified that the Department's pre-removal investigation revealed evidence of domestic violence between the children's parents. Lima-Caceres also testified that A.A. threatened to kill her if she removed the children and that she had to call the police to assist her in removing N.Y.M.H.A. from the hospital because A.A. "was very hostile with" her.
Blauser-Leckie testified that in 2017, 2019, and 2020, A.A. was arrested for assault, terroristic threats, and injury to a family member. She explained that all three arrests involved the children's mother, D.C.
Themann testified that D.C. "acknowledged that there was domestic violence in the relationship." She further testified that when she removed D.M.A. in 2020, the parents had not resolved any of the issues that had led to N.M.A. and N.Y.M.H.A.'s removal in 2019, including the domestic violence.
Martinez testified that A.A. "physically assaulted" D.C. while this case was pending. Martinez also testified that her review of the case file shows there have been "many domestic violence incidents" between D.C. and A.A., and she explained that she "just see[s] repeated patterns from the last two years. Everything I've read, it's just a cycle." She further testified, "I don't think [A.A.]'s safe around the children."
It is true, as A.A. notes in his brief, that there is conflicting evidence on this issue. For example, Blauser-Leckie testified there were no new incidents of domestic violence between A.A. and D.C. while she was assigned to this case. Additionally, Themann testified that A.A. denied any domestic violence in his relationship with D.C. However, as the factfinder, the trial court had the sole authority to resolve any conflicts in the evidence, and we must presume it resolved that conflict in favor of its finding if it reasonably could have done so. See In re J.P.H., 196 S.W.3d 289, 294 (Tex. App.-Eastland 2006, no pet.) (citing In re J.F.C., 96 S.W.3d at 266).
A.A. also argues the Department failed to meet its burden because it did not present any evidence of "specifics as to the [domestic violence] allegations or to the present or future danger to any of the children." We disagree. It is well-established that "[a] parent's abusive or violent conduct can produce a home environment that endangers a child's well-being." In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.). As noted above, the Department presented evidence that between 2017 and 2020, A.A. was arrested three times for violent or threatening acts directed at the children's mother. See In re R.S.-T., 522 S.W.3d at 110. While at least one of those arrests preceded the births of all three children, A.A.'s most recent arrest occurred while this case was pending. Moreover, Blauser-Leckie and Martinez both testified that A.A. did not complete the domestic violence classes and individual therapy his service plan required to address the violence in his relationship with D.C. The trial court could properly consider A.A.'s failure to complete those portions of the service plan as part of its endangerment analysis. See In re M.B., No. 02-15-00128-CV, 2015 WL 4380868, at *12 (Tex. App.-Fort Worth July 16, 2015, no pet.) (mem. op.). Finally, Blauser-Leckie testified A.A. and D.C. "were in a relationship for much of the time that I had the case," and Martinez testified that she believes A.A.'s presence in D.C.'s life precluded the establishment of a safe and stable home for the family. Based on this evidence, the trial court could have reasonably formed a firm conviction or belief in the existence of an ongoing cycle of domestic violence between A.A. and D.C. See In re T.N.S., 230 S.W.3d at 439 (subsection (E) requires evidence of course of conduct). The trial court also could have reasonably concluded that this cycle of violence threatened the children's physical or emotional well-being. See In re R.S.-T., 522 S.W.3d at 110. A.A. has not cited any authority holding that the Department was required to present evidence about the specific details of that violence, and we have found none.
A.A. also notes that because the Department removed N.Y.M.H.A. and D.M.A. immediately after their births, they were never in his custody. However, where there is evidence that one parent has committed domestic violence against the other, that evidence can support a finding of endangerment "even against a child who was not yet born at the time of the conduct." In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.-Eastland 2010, pet. denied). This is because "endangering conduct is not limited to actions directed towards the child." In re J.O.A., 283 S.W.3d at 345. Additionally, a factfinder applying subsection (E) "may infer from past conduct endangering the well-being of the child that similar conduct will recur if the child is returned to the parent." In re M.B., 2015 WL 4380868, at *12. Where, as here, the evidence shows A.A. both denied the existence of any domestic violence and refused to participate in services meant to address that violence, the trial court could have reasonably inferred that such violence would continue if the children were returned to A.A. See id.
In addition to the Department's evidence of domestic violence, the Department presented evidence that A.A. lacked stable housing throughout this case. "A parent's conduct that exposes a child to a life of uncertainty and instability endangers the child's physical and emotional wellbeing." In re L.P., No. 04-20-00140-CV, 2020 WL 5027385, at *11 (Tex. App.-San Antonio Aug. 26, 2020, pet. denied) (mem. op.). The Department initially removed N.M.A. and N.Y.M.H.A., at least in part, because A.A. and D.C. "were homeless" and "going from place to place." At one point during this case, A.A. and D.C. "were staying with a friend" who "didn't want to share any information with the Department as to where they lived." A.A. and D.C. "were not willing to go to [a] shelter at the time," but chose to remain with their friend instead. Blauser-Leckie testified that when she was assigned to the case, A.A. was still "living with friends and didn't have a place of his own." The Department's caseworkers testified that this issue remained unresolved throughout this case, even though A.A.'s service plan required him to obtain stable housing. See In re M.B., 2015 WL 4380868, at *12.
When viewed in the light most favorable to the judgment, the evidence presented at trial would allow a reasonable factfinder to form a firm belief or conviction that A.A. engaged in a voluntary, deliberate, and conscious course of conduct that endangered the children's physical or emotional well-being. Furthermore, the contrary evidence is not so significant that a factfinder could not reasonably have formed a firm belief or conviction on this point. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding under section 161.001(b)(1)(E). See In re J.F.C., 96 S.W.3d at 266. We therefore overrule A.A.'s sole issue on appeal.
Conclusion
We affirm the trial court's order of termination.