Opinion
04-22-00471-CV
01-04-2023
IN THE INTEREST OF N.N.M., J.J.C. Jr. a/k/a J.J.S.-M., Children
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-00916 Honorable Kimberly Burley, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
This appeal arises from the trial court's order terminating the parental rights of appellant K.N.M., the biological mother of N.N.M. and J.J.C. (collectively "the children"). By one issue, K.N.M. argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(2). We affirm.
We refer to the children and the children'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 May 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 K.N.M. to the children, who were seven and three years old at the time. Also in May 2021, the trial court signed a temporary order that removed the children from K.N.M.'s custody and appointed the Department as their temporary managing conservator. Upon removal, the children began living with their maternal grandmother. K.N.M. executed a service plan. The service plan was adopted and incorporated into a court order. Ultimately, the Department proceeded to a bench trial, at which K.N.M. did not appear. Tiffany Najera, a Department case worker, testified at the bench trial.
The Department also sought to terminate the parental rights of the children's fathers. The fathers are not parties to this appeal.
Najera testified that, in April 2021, the children's grandmother became concerned for their welfare after a visit to K.N.M.'s apartment, and she made a referral to the Department. The grandmother was prompted to make a departmental referral because she allegedly witnessed K.N.M. under the influence of "ice" in the presence of the children and "the apartment was in unlivable conditions for the family."
"'Ice' is a street name for methamphetamine hydrochloride." Rivera v. State, No. 2-05-056-CR, 2006 WL 743030, at *2 n.4 (Tex. App.-Fort Worth Mar. 23, 2006, pet. ref'd) (mem. op., not designated for publication); see also Ex parte Lane, 303 S.W.3d 702, 715 n.7 (Tex. Crim. App. 2009) (describing "ice" as "the form of methamphetamine that is smoked").
After the Department became the children's temporary managing conservator, K.N.M. executed a service plan. The service plan required K.N.M. to, among other things, attend individual counseling, participate in classes on parenting and family violence prevention, find employment and stable housing, successfully complete an inpatient drug treatment program, and submit to drug testing when requested. According to Najera, K.N.M. received an "unsuccessful discharge" from the inpatient drug treatment program and submitted to only one drug test, which occurred in October 2021. Najera testified that the test "c[a]me up positive, with very high levels for methamphetamines, high levels of amphetamines, and [a] high level for marijuana." Since October 2021, Najera has asked K.N.M. to submit to a drug test on six occasions, but K.N.M. refused all six requests. Najera further testified that K.N.M. has not completed any family violence prevention class, and in her estimation, K.N.M. has not demonstrated that she has a safe and stable home for the children. K.N.M. "did not show for a lot of the visits [with her children] during the case." During the time Najera has served as a caseworker for the children, K.N.M. has been involved in two domestic violence incidents. Nevertheless, K.N.M. refused to separate from the boyfriend who allegedly caused each domestic violence incident. Overall, in Najera's estimation, K.N.M. has not properly addressed the issues that led the Department to intervene.
After the children's removal from K.N.M.'s custody, they were placed with their maternal grandmother, where they have remained. The children are, according to Najera, very bonded with and loving towards their maternal grandmother. Najera further observed that the maternal grandmother is very attentive to the children. When N.N.M. was placed with her maternal grandmother, she was one academic year behind. However, since placement, she has caught up because of tutoring and by the maternal grandmother ensuring daily school attendance. Najera testified that she believes that termination of K.N.M.'s parental rights is in the best interest of the children. Najera recommended that the children be adopted by their maternal grandmother, which is a goal shared by the children. Nevertheless, J.J.C., who was four years old at the time of trial, expressed that he would like "some visits with his mom."
At its conclusion, the trial court found by clear and convincing evidence that K.N.M.'s parental rights to the children should be terminated on the basis of Section 161.001(b)(1)(E), (N), (O), and (P) of the Texas Family Code. Tex. Fam. Code Ann. § 161.001(b)(1)(E), (N), (O), (P). It further found by clear and convincing evidence that termination of K.N.M.'s parental rights was in the children's best interest. Id. § 161.001(b)(2). The trial court signed a final judgment terminating the parental rights of K.N.M. She timely appealed from the termination order.
Generally, these provisions allow a trial court to terminate the parent-child relationship if the court finds by clear and convincing evidence that, among other things, 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 Ann. § 161.001(b)(1)(E), constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department for not less than six months, id. § 161.001(b)(1)(N), failed to comply with specific provisions of a court order, id. § 161.001(b)(1)(O), or used a controlled substance in a manner that endangered the health or safety of the child. Id. § 161.001(b)(1)(P).
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 id. 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 Texas 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 Department 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. In re 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. Desires of the Children
At the time of trial, N.N.M. was eight years old and J.J.C. was four years old. Both children, as Najera recalled, want to be adopted by their maternal grandmother, although J.J.C. expressed that he would like "some visits with his mom." The trial court may have reconciled J.J.C.'s request for "some visits with his mom" with Najera's recollection of the children's desire for adoption as visits following termination and adoption. See In re 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."). We conclude that the first Holley factor weighs in favor of terminating K.N.M.'s parental rights. See In re R.J., No. 06-21-00028-CV, 2021 WL 3728269, at *6 (Tex. App.-Texarkana Aug. 24, 2021, no pet.) (considering desires, as expressed by adults, of children who were between approximately eight and eleven years old where there was "no testimony that any of the children wanted to be returned to" the parent who was the subject of a termination proceeding and finding that the first Holley factor strongly favored termination).
2. Emotional and Physical Needs/Danger, Parental Abilities, and Improper Parent-Child Relationship
Najera testified that the only drug test K.N.M. took "c[a]me up positive, with very high levels for methamphetamines, high levels of amphetamines, and [a] high level for marijuana." Additionally, K.N.M. has refused all six subsequent requests to submit to a drug test while the Department's termination petition was pending. "A factfinder may reasonably infer from a parent's refusal to take a drug test that the parent was using drugs." In re E.M., 494 S.W.3d 209, 222 (Tex. App.-Waco 2015, pet. denied); accord In re D.G., No. 04-22-00044-CV, 2022 WL 1751370, at *4 (Tex. App.-San Antonio Jun. 1, 2022, pet. denied) (mem. op.).
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), K.N.M.'s parental abilities (the fourth factor), the stability of her home (the seventh factor), and the acts or omissions which may indicate an improper parent-child relationship (the eight factor). See Holley, 544 S.W.2d at 371-72; see also In re S.A.M., No. 04-18-00607-CV, 2019 WL 573469, at *5 (Tex. App.-San Antonio Feb. 13, 2019, pet. denied) (mem. op.) ("Drug use tends to establish a course of conduct endangering the emotional and physical well-being of the child."). "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.)).
There is also the issue of K.N.M. being involved in two domestic violence incidents while Najera served as the Department's caseworker, which implicates the third factor. As Najera recalled, K.N.M. refused to separate from the boyfriend who allegedly caused each domestic violence incident. See In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (acknowledging that even though the child was not the intended victim, domestic violence between parents was evidence of physical and emotional danger to the child).
3. Available Programs
Najera testified that K.N.M. has not completed any family violence prevention class, which was a program outlined in the service plan. Additionally, K.N.M. was unsuccessfully discharged from an inpatient drug treatment program. K.N.M.'s failure to avail herself of this departmental program 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).
D. Disposition: Best Interest
K.N.M.'s drug use - both documented and presumed, failure to avail herself of available programs, and the desires of the children supports the trial court's termination finding under the first, second, third, fourth, seventh, and eighth Holley factors.
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 K.N.M.'s parental rights was in N.N.M.'s and J.J.C.'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 have reasonably formed a firm belief or conviction that termination was in the children'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). K.N.M.'s sole issue is overruled.
III. Conclusion
We affirm the trial court's parental termination order.