Opinion
04-22-00032-CV
08-24-2022
IN THE INTEREST OF N.M.R., a Child
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2019PA01170 Honorable Martha Tanner, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellants K.H., Mother, and L.R., Father, appeal the trial court's order terminating their parental rights to their child, N.M.R. Mother and Father challenge the legal and factual sufficiency of the evidence supporting the statutory predicate grounds and that termination is in N.M.R.'s best interest. Mother also argues-because the termination of her parental rights was based on alleged insufficient evidence-the trial court's conservatorship determination was an abuse of discretion. We affirm in part and reverse in part.
To protect the identity of a minor child in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and the child using the child's initials. 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.
Background
The Department of Family and Protective Services ("the Department") removed N.M.R. from Mother's and Father's care several months after N.M.R.'s birth because N.M.R. and Mother both tested positive for marijuana at N.M.R.'s birth, and the Department had concerns of domestic violence between Mother and Father.
Based on these reasons and concern for the child's welfare, on June 7, 2019, the Department filed a petition for termination of parental rights and sought removal of the child. N.M.R. was placed in a foster home.
During the pendency of this case, the Department offered Mother and Father multiple services, including drug assessments and treatment, drug testing, domestic violence classes, and individual counseling. Mother and Father both made progress under the family-based services, but neither of them successfully completed all the services to the satisfaction of the Department. Moreover, at trial, Mother and Father reported that after completing domestic violence classes, no further incidents occurred between Mother and Father. By the time of trial, Mother-who tested positive for marijuana at N.M.R.'s birth-was no longer using any illegal substance. Father, on the other hand, continued to struggle with drug use throughout the case.
On August 17, 2021 and December 10, 2021, the trial court held a bench trial. The trial court heard testimony from Nicolette Riebe and Jennifer Ziarmal, the Department's caseworkers, and Mother and Father.
On December 11, 2021, the trial court rendered its order terminating Mother's and Father's parental rights to N.M.R but later reformed its order and signed an order of termination on February 1, 2022. Specifically, the trial court terminated Mother's and Father's parental rights based on statutory grounds (D), (E), and (O) in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The trial court also found that it was in N.M.R's best interest to terminate Mother's and Father's parental rights. See id. § 161.001(b)(2). Mother and Father appealed.
The trial court reformed its December 11, 2021 final order on January 5, 2022 and then signed its reformed order February 1, 2022. We will refer to the February 1, 2022 reformed order of termination when referring to the trial court's final order.
Standard of Review
A parent's rights to the "companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Therefore, we strictly scrutinize parental termination proceedings and strictly construe the involuntary statutes in favor of the parents. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "the rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003).
Due to the severity and permanency of terminating parental rights, the Department must prove its case by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'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.
This burden of proof requires a heightened standard of review. See Tex. Fam. Code Ann. §§ 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 re S.R., 452 S.W.3d 351, 358 (Tex. App.-Houston [14th Dist.] 2014, pet. denied).
"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 J.F.C., 96 S.W.3d 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." 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.).
Statutory Ground for Termination
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department must prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) 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.
Only one predicate ground finding under section 161.001(b)(1) is necessary to support a termination judgment when there is also a finding that termination is in the child's best interest. A.V., 113 S.W.3d at 362. Therefore, our analysis is usually complete if we conclude that the evidence is sufficient to support any single predicate ground. Because the findings under section 161.001(b)(1)(D) and (E) have consequences for termination of parental rights as to other children, termination on these grounds implicates significant due process concerns for Mother and Father. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M); In re N.G., 577 S.W.3d 230, 234 (Tex. 2019). When challenged, due process requires us to review the trial court's findings under both sections 161.001(b)(1)(D) and (E) of the Texas Family Code. See In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) ("[W]hen a trial court makes a finding to terminate parental rights under section 161.001(b)(1)(D) or (E) and the parent challenges that finding on appeal, due process requires the appellate court to review that finding and detail its analysis.").
Here, the trial court found evidence establishing Mother and Father "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" and "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[.]" See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). While both subsections D and E focus on endangerment, they differ regarding the source and proof of endangerment. 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 D concerns the child's living environment, rather than the conduct of the parent, though parental conduct is certainly relevant to the child's environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). Under subsection E, the cause of the endangerment must be the parent's conduct and must be the result of a conscious course of conduct rather than a single act or omission. Id.
Statutory Subsection D
The statutory ground for termination found in subsection D allows for termination of parental rights if the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(D). The child's "environment" encompasses the suitability of the child's living conditions and the conduct of parents or others in the home. S.R., 452 S.W.3d at 360. "Inappropriate, abusive, or unlawful conduct by a parent or other persons who live in the child's home can create an environment that endangers the physical and emotional well-being of [the child] as required for termination under subsection D." Id. "'[A] parent need not know for certain that the child is in an endangering environment; awareness of such a potential is sufficient.'" In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.-San Antonio 2017, no pet.) (quoting In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no pet.)). Subsection D permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. denied).
Under Subsection D, the trial court examines "evidence related to the environment of the child[ ] to determine if the environment was the source of endangerment to the child[ ]'s physical or emotional well-being." J.T.G., 121 S.W.3d at 125. Parental conduct, however, is a factor that contributes to the child's environment. Id. The period relevant to a review of conduct and environment under statutory ground D is prior to the child's removal by the Department. In re J.R., 171 S.W.3d 558, 569 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
Statutory Subsection E
Subsection E permits termination if the parent has "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 Ann. § 161.001(b)(1)(E). Under subsection E, endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment[.]" Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Instead, to endanger means to expose the child to loss or injury or to jeopardize his or her emotional or physical well-being. Id. The trial court must determine "whether evidence exists that the endangerment of the child's physical well-being was the direct result of [the parent's] conduct, including acts, omissions, or failures to act." In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.-Fort Worth 2011, pet. denied). "'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.'" R.S.-T., 522 S.W.3d at 110 (quoting In re S.M.L., 171 S.W.3d at 477). "Courts may further consider parental conduct that did not occur in the child's presence, including conduct before the child's birth or after he was removed from a parent's care." A.B.R., 2020 WL 1159043, at *3. "[E]ndangering conduct is not limited to actions directed towards the child." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Statutory Grounds Supporting Parental Termination
Mother
In Mother's first issue, she argues the evidence is legally and factually insufficient to support the termination of her parental rights under subsection 161.001(b)(1)(O). Mother, however, does not challenge the trial court's findings under subsections 161.001(b)(1)(D) or 161.001(b)(1)(E); and consequently, we do not address them. Our decision to not address them does not run afoul of the Texas Supreme Court's decision in N.G., because the court also made it clear in its holding that requiring a reviewing court to review subsections 161.001(b)(1)(D) and 161.001(b)(1)(E) even when another statutory ground sufficiently supports termination is predicated on whether the party challenged those grounds on appeal. N.G., 577 S.W.3d at 235; see also In re K.A., No. 02-19-00099-CV, 2019 WL 4309168, at *11 n.4 (Tex. App.-Fort Worth Sept. 12, 2019, pet denied) (mem. op.) (holding its decision to not address the sufficiency of the evidence with respect to subsections 161.001(b)(1)(D) and 161.001(b)(1)(E) did not run afoul of N.G. because appellant failed to challenge the trial court's findings with respect to those subsections). Because, along with a best interest finding, a finding of only one predicate ground alleged under section 161.001(b)(1) is sufficient to support termination, we overrule Mother's first issue. See A.V., 113 S.W.3d at 362; In re J.F.G., III, 500 S.W.3d 554, 560 (Tex. App.-Texarkana 2016, no pet.). Accordingly, Mother's first issue is overruled.
Father
Father, on the other hand, challenges the legal and factual sufficiency of the evidence supporting the trial court's termination of his parental rights under subsections 161.001(b)(1)(D), (E), and (O). Because the same evidence relates to subsections D and E, we combine our analysis of these predicate grounds for termination. See A.B.R., 2020 WL 1159043, at *3 (citing J.T.G., 121 S.W.3d at 126).
The Department's concerns in this case were Mother's and Father's use of illegal substances, especially Mother's use of marijuana during pregnancy, as well as domestic violence between Mother and Father.
Recently, the Texas Supreme Court addressed whether "a parent's knowledge of the other parent's drug use during pregnancy and corresponding failure to attempt to protect the unborn child from the effects of that drug use can contribute to an endangering environment and thus support an endangerment finding." In re J.W., 645 S.W.3d 726, 749 (Tex. 2022). The supreme court agreed that sufficient evidence of a father's awareness of a mother's drug use during pregnancy coupled with his failure to attempt to protect his unborn child from the effects of drug use-such as reporting mother or assisting mother in taking substance abuse treatment-could support an endangerment finding; however, the supreme court cautioned against "attributing any and all known dangers posed to a child during the mother's pregnancy to the other parent." Id. at 749-50. Rather, the facts and circumstances of each case dictate the outcome of the case. Id. at 750 & n.13 ("[I]f a parent actively participates in creating or maintaining a dangerous environment during the pregnancy, e.g., does drugs with the pregnant mother, encourages her drug use, or supplies drugs, [the supreme court] see[s] no reason why such conduct would not qualify as endangerment under Subsection (D).").
According to the Department's caseworker Riebe, Mother suffers from mental illness- bipolar disorder, anxiety, and depression. Riebe testified Mother explained to her that during her pregnancy with N.M.R., Mother did not want to receive assistance for her mental illness; but rather took Xanax and smoked marijuana to help her. At trial, Mother acknowledged using marijuana during pregnancy. She also acknowledged she and N.M.R. tested positive for marijuana at N.M.R's birth. Father testified he knew Mother used marijuana during pregnancy and that it was not safe for his unborn child, but because he too was smoking marijuana with Mother during that time, he did nothing to dissuade Mother from using it.
Moreover, Father claimed at trial he had last used marijuana at the beginning of 2021; however, he tested positive for drugs in May of 2021. Father testified he did not know what he tested positive for but claimed he had only ever used marijuana. Nonetheless, the Department's caseworker Ziarmal testified that based on discussions with Mother, Father also used and sold "Benzo" and cocaine in addition to using marijuana. Ziarmal also testified that throughout the case, Father was very inconsistent with drug testing. See In re M.K.E., No. 01-22-00001-CV, 2022 WL 2251650, at *10 (Tex. App.-Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.) ("When a parent is under a court order to drug test and fails to submit to such testing, a trier of fact may conclude that the parent refused to do so because of continued drug use.").
Father testified about the domestic violence allegations between Mother and Father. Father explained he was incarcerated twice for allegations involving Mother, once for assaulting her by choking in 2019, for which he received three years' probation, and the other for an alleged assault in April 2020 that Father claimed was dismissed. Specifically, Father claimed the 2020 case- stemming from allegedly dragging Mother with his car-was dismissed. Father testified the majority of his recent behaviors, such as not attending visitation with his daughter and failure to take court ordered drug tests, resulted from having an outstanding warrant for his arrest because he could not afford a GPS monitor required as a condition of his 2019 probation.
Riebe and Ziarmal also testified about the Department's domestic violence concerns between Mother and Father. In addition to the 2019 incident on the day before N.M.R.'s removal, Riebe testified about an incident occurring after N.M.R.'s removal wherein Mother reportedly went to the hospital after a window was broken at Mother's and Father's apartment. Mother explained she kicked the window during an argument with Father. According to Ziarmal, Mother also told her about the April 2020 incident where Father allegedly dragged Mother with a vehicle.
At trial, Mother and Father denied having an ongoing romantic relationship although Mother was pregnant with Father's baby and due within weeks. Ziarmal testified to finding Father unclothed at Mother's residence in May 2021 and seeing them together at a restaurant around August 2021. Mother, who separately rode the bus in August, and Father both explained they were at the nearby restaurant eating breakfast before their visitations with N.M.R. when Ziarmal saw them.
In sum, both the Department's caseworkers, and Mother and Father to some extent, testified about Father's knowledge of Mother's marijuana use during her pregnancy with N.M.R., Father's on-going drug use, and Mother's and Father's domestic violence towards each other. See J.O.A., 283 S.W.3d at 345 (explaining a parent's drug use and its effect on his or her parenting may qualify as an endangering course of conduct); 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.) ("Continued illegal drug use [by the parent] . . . is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct[.]"); R.S.-T., 522 S.W.3d at 110 ("'Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment." (quoting In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.))). While the domestic violence was not directed at N.M.R., the trial court could have formed a firm belief or conviction the exposure of the violence created an environment that endangered the child. See R.S.-T., 522 S.W.3d at 110 ("'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.'" (quoting S.M.L., 171 S.W.3d at 477)).
Moreover, Father's previous incarceration for domestic violence and probation violation, exposing Father to the possibility of future incarceration, introduces an element of instability into the child's life. See S.S. v. Tex. Dep't of Fam. & Protective Servs., No. 03-22-00123-CV, 2022 WL 2500337, *6 (Tex. App.-Austin July 7, 2022, n.p.h.) (mem. op.). The court may also consider evidence of the parent's conduct both before and after the child's birth, including conduct occurring after the child was removed from the parent's care, which in this case, included Father's continued drug use and domestic violence concerns between Father and Mother. 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.).
Therefore, viewing all the evidence in the light most favorable to the trial court's judgment, we conclude a reasonable trier of fact could have formed a firm belief or conviction Father "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" and "engaged in conduct . . . which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Thus, the evidence is legally sufficient to support these findings. Further, after considering the entire record, including any disputed or contrary evidence, we conclude the evidence is factually sufficient to support the trial court's termination under subsections 161.001(b)(1)(D) and (E) of the Texas Family Code.
Having determined the evidence is legally and factually sufficient to support the trial court's findings on these statutory grounds, we need not consider whether the evidence would support termination under subsection (O). See A.V., 113 S.W.3d at 362.
Father's challenge to the sufficiency of the evidence supporting the statutory predicate grounds found by the trial court in terminating Father's parental rights to N.M.R. is overruled.
Best Interest of The Child
When considering the best interest of the 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 her best interest as well. Tex. Fam. Code Ann. § 263.307(a). Because of the strong presumption that maintaining the parent-child relationship is in the child's best interest and the due process implications of terminating a parent's rights without clear and convincing evidence that termination is in the child's best interest, "the best interest standard does not permit termination merely because a child might be better off living elsewhere. Termination should not be used to merely reallocate children to better and more prosperous parents." In re W.C., 98 S.W.3d 753, 758 (Tex. App.-Fort Worth 2003, no pet.); see In re E. N.C. , 384 S.W.3d 796, 809 (Tex. 2012).
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 Tex. Fam. Code Ann. § 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. Likewise, a lack of evidence on one factor cannot be used as if it were clear and convincing evidence supporting a termination finding. E. N.C. , 384 S.W.3d at 808. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dept. of Protective & Regulatory 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; ... (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 .... See 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 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.
Domestic violence may be considered in analyzing the best interest of the child. See Tex. Fam. Code Ann. § 263.307(b)(7) (specifying "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" as a factor to review in trial court's best-interest finding); J.O.A., 283 S.W.3d at 345 ("[E]ndangering conduct is not limited to actions directed towards the child."). Father was convicted of assaulting Mother and is currently on probation that includes a condition he have no contact with Mother, which by the parties' own admissions, he has violated. Because Mother also claimed she was a perpetrator and caused some of the disagreements, Ziarmal required Mother take a different, twenty-six-week course addressing both victims and perpetrators. Mother testified she began taking this course, in addition to the nine-week course she had already completed, before trial.
Mother's and Father's drug use also factor into the trial court's best interest finding. A parent's drug use supports a positive finding on the third Holley factor that termination is in the best interest of the child. D.M.M., 2019 WL 546029, at *8. The factfinder can give "great weight" to the "significant factor" of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.- Dallas 2007, no pet.); see also In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at *6 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (mem. op.) ("Drug abuse and its effect on the ability to parent can present an endangering course of conduct."); In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015 at *9 (Tex. App.-Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.) (explaining a parent's continued drug use under court scrutiny demonstrates a parent's inability to care for children and such failure over prolonged period is pattern court can find will likely continue such that permanency can only be achieved through termination and adoption). Father's past and ongoing drug use, in addition to allowing Mother to use illegal substances during her pregnancy with N.M.R., supports the trial court's best interest finding.
With respect to Mother, the Department's concern focused on her marijuana use. Mother acknowledged her marijuana use during pregnancy with N.M.R. was not safe, but claimed she smoked marijuana to treat her mental illness. During the pendency of the case, Mother sought mental health treatment and took medication prescribed by her doctor. Thus, while Mother also acknowledged the dangers of smoking marijuana, Mother testified she is committed to staying sober and staying on appropriate medication to address her mental illness. Ziarmal testified she was aware Mother had sought mental health services, but she had not visited Mother at her residence to assure Mother's compliance with taking her prescribed medications. A month before trial, Mother was drug tested and the Department had no concerns as to the results. Nevertheless, Mother still voluntarily restarted a Lifetime Recovery program and completed it a month before trial.
While the amendment to section 262.116 of the Texas Family Code does not apply in this case, as the case was filed prior to the effective date of the amendment, and the circumstances were different because Mother used marijuana during her pregnancy causing N.M.R. to test positive for marijuana at birth, we note that after September 1, 2021, the Department may not remove a child based on evidence a parent tested positive for marijuana unless the Department has evidence that such use caused significant impairment to the child's physical or mental health or emotional development. Act of Apr. 28, 2021, 87th Leg., R.S., ch. 8, §§ 15, 16 (2021) (codified as Tex. Fam. Code Ann. § 262.116(a)(7)).
"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)). This not only includes the domestic violence and drug use concerns addressed above, but also with respect to Father, the 2019 assault of Mother, to which Father pled guilty to and is currently serving a three-year probation, and the outstanding warrant for his arrest for violating probation, subjects Father to the potential of further incarceration.
N.M.R. was six-months old at the time of removal and three years old at the time of trial, and therefore had been in foster care for over two years. When, as here, a child is too young to express her desires, the trial court may consider whether the child has bonded with current caregivers, is well cared for by them, and has spent minimal time with the parent. See In re D.A.B., No. 04-19-00629-CV, 2020 WL 1036433, at *7 (Tex. App.-San Antonio Mar. 4, 2020, no pet.) (mem. op.). According to Ziarmal, N.M.R. is doing well and has bonded with her caregivers, her foster mother and sister who is about the same age, and the caregivers have expressed a desire to adopt N.M.R. 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 children are in a "stable and nurturing environment" supported the trial court's best-interest determination).
We note that while Mother raised concerns with the Department regarding N.M.R.'s care in foster care, Mother's complaints were determined to be unfounded. Other concerns regarding N.M.R.'s speech delays and potty training were being addressed by the foster family and the Department.
However, Riebe testified before she removed N.M.R., the child was always clean and dressed, and Mother had bonded with N.M.R. With respect to Mother's visitations with N.M.R. after removal, Ziarmal testified Mother was very consistent with her visits, the visits were appropriate, and Mother paid attention to and engaged with N.M.R. at every visit. According to Ziarmal, Mother brought toys, clothing, and food. Ziarmal expressed no concerns during Mother's visits. Ziarmal explained that N.M.R. appears to know her mother and is bonded with Mother too.
Mother also testified she has bonded with N.M.R. and that she was prepared for N.M.R. to live with her along with the new baby she was expecting. In fact, while not required by the Department, Mother testified she took parenting classes through Catholic Charities because when the Department removed N.M.R. she was only six months old; and, as a new mom, Mother wanted to be more informed.
Additionally, while the Department had previous concerns about Mother's housing, at the time of trial, Mother lived in a two-bedroom apartment for which rent and utilities were paid several months in advance. According to Ziarmal, Mother's apartment included a room for N.M.R. that "looks like a little girls', a little toddler's room. [It] has a toddler bed and toys." Ziarmal testified she confirmed Mother had a safe and stable home and had been living at the apartment complex for approximately eight months. Mother testified about her ability to meet N.M.R.'s needs now and in the future by working and utilizing public benefits. Mother also explained the various skills she learned from counseling and domestic violence classes on how to appropriately respond in situations. By the time of trial, Mother had reengaged with a new therapist after her last therapist stopped working with the Department's cases.
Father also had bonded with N.M.R. during his visits, but he had not visited with N.M.R. in the four months preceding trial because of the warrant for his arrest and his fear he would be arrested in front of his daughter.
While not formally diagnosed with autism, N.M.R. exhibited speech developmental delays and was not potty trained. Mother testified she planned to seek out assistance for N.M.R.'s needs and development. Without further explanation and in conclusory testimony, Ziarmal stated Mother could not take care of N.M.R.'s physical and emotional needs. See In re L.C.L., 599 S.W.3d 79, 88 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) ("[T]he existence of the [child's] disorders and disabilities [do not] constitute evidence of Mother's inability to provide for the child[]'s emotional or physical needs.").
While Mother remedied the Department's concerns regarding lack of housing by the time of trial, we also note the testimony surrounding Mother's stay at a shelter during the pendency of the case. Mother explained she stayed at a shelter and engaged in a variety of life skills classes until she left to visit her mother the night the February 2021 winter storm affected San Antonio. Mother testified she was unable to return to the shelter due to lack of transportation during the winter storm. When she attempted to return to the shelter after the storm, the shelter claimed she abandoned her stay. When Mother lost her place at the shelter, the Department changed its goal from reunification to termination. Ziarmal testified that during the three months Mother lived in the shelter, the Department proceeded with the goal to reunify N.M.R. with Mother. Ziarmal further testified that when Mother lost her place at the shelter, the Department changed its goal and sought termination of Mother's parental rights to N.M.R.
Regarding Father, he provided no evidence suggesting where he would live with N.M.R., how he would take care of her, or how he would address N.M.R.'s special needs. Moreover, Father explained he could not maintain stable employment because of his arrest warrant.
Having analyzed the evidence, we now determine whether a reasonable factfinder could form a firm belief or conviction that terminating Mother's and Father's parental rights are in the N.M.R.'s best interest. Due process requires clear and convincing evidence to sever the parent-child relationship. See J.F.C., 96 S.W.3d at 263. Therefore, we conclude, based on the trial evidence, no rational factfinder could form a firm belief or conviction that terminating Mother's parental rights is in N.M.R.'s best interest. The record evidence falls short of the requisite legal standard and fails to support termination of Mother's parental rights. See In re K.N.J., 583 S.W.3d 813, 827 (Tex. App.-San Antonio 2019, no pet.) ("The evidence must therefore permit a factfinder to reasonably form a firm conviction or belief that appellant should no longer be in [N.M.R.'s] li[fe] as [her] mother, not merely that appellant should not have custody."); see also In re B.D.A., 546 S.W.3d 346, 393 (Tex. App.-Houston [1st Dist.] 2018, pet. denied) (Massengale, J., dissenting on rehearing) ("The law sets a high evidentiary bar for termination of parental rights. We do not alleviate the plight of Texas . . . children by lowering the bar and perpetuating diminished judicial expectations of the proof that must be presented by the Department."). Accordingly, we sustain Mother's second issue.
With respect to Father, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Father's parental rights is in the child'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 an appellate 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 finding regarding Father. Father's challenge to the sufficiency of the evidence to support the trial court's best-interest finding is overruled.
Conservatorship
In her third issue, Mother argues the trial court abused its discretion in making its conservatorship finding. Mother argues this court should reinstate pre-suit conservatorship status. Mother additionally argues, if she is not immediately reunified with N.M.R., her possessory conservatorship rights should be restored to allow her to receive services and complete her service plan. Mother's appellate brief contains no further argument or analysis on this issue.
The trial court appointed the Department as N.M.R.'s permanent managing conservator based on its findings that appointment of any of the parents as a permanent managing conservator was not in N.M.R.'s best interest and such appointment would significantly impair N.M.R.'s physical health or emotional development. See Tex. Fam. Code Ann. § 153.131(a) (authorizing appointment of Department as nonparent managing conservator if trial court finds "appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development").
While Mother challenged the sufficiency of the evidence terminating her parental rights, she did not challenge the trial court's findings that her appointment as managing conservator would significantly impair N.M.R.'s physical health or emotional development. See J.A.J., 243 S.W.3d at 615-17 (holding parent must specifically challenge trial court's section 153.131 findings because such a challenge not subsumed within parent's challenge to termination order). Therefore, we affirm the trial court's order as to conservatorship.
Accordingly, Mother's third issue is overruled.
Conclusion
Based on the foregoing, we affirm the trial court's final order terminating Father's parental rights to N.M.R.
Because there is legally insufficient evidence that termination of Mother's parental rights is in N.M.R.'s best interest, we reverse the trial court's order terminating Mother's parental rights to N.M.R., and render judgment denying the Department's petition for termination of Mother's parental rights to N.M.R. See In A.L.H., 468 S.W.3d at 474. We affirm the trial court's order appointing the Department as N.M.R.'s sole managing conservator. See J.A.J., 243 S.W.3d at 612- 13.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART