Opinion
No. 04-16-00461-CV
12-21-2016
IN THE INTEREST OF C.R.L. and A.E.V., Children
MEMORANDUM OPINION
From the 452nd Judicial District Court, Mason County, Texas
Trial Court No. 155592
Honorable Robert Rey Hofmann, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Jason Pulliam, Justice AFFIRMED
Appellant "Jade" appeals the trial court's order terminating her parental rights to her children C.R.L. and A.E.V. Jade does not argue that the evidence was insufficient to support the trial court's findings that she violated multiple statutory grounds for termination. Instead, she asserts the trial court erred when it denied her motion for directed verdict and the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating her parental rights is in her children's best interests.
To protect the minor's identities, we refer to the mother and the children by aliases. See TEX. R. APP. P. 9.8.
The trial court's order also terminated the parental rights of the unknown father of C.R.L. and of the alleged father of A.E.V. Because neither father filed a notice of appeal, we do not recite the facts or analyze the issues pertaining solely to the fathers. --------
Having reviewed the evidence under the applicable standards, we conclude Jade was not entitled to a directed verdict and the evidence is both legally and factually sufficient to support the finding. Thus, we affirm the trial court's order.
BACKGROUND
Jade is the mother of C.R.L. and A.E.V., the children who are the subject of this suit. Jade testified she and the children were living with her boyfriend in his parents' home. On June 2, 2015, Jade's boyfriend called her and asked her to find his drugs he had misplaced somewhere in the home. Jade looked for the drugs, but she did not find them. Later in the day, when her then two-year-old child brought Jade a vacuum sealed bag that Jade believed contained methamphetamine, Jade called the Mason County Sheriff's Office. As a result of the incident, her boyfriend's parents told Jade she must move out, and she did.
Initially, Jade and the Department agreed to a temporary placement home for the children, but the placement ended after only a few days. Then, after Jade admitted to a Department investigator that she and her boyfriend both used methamphetamine, the boyfriend had been violent with her, and she had no place to take the children, the Department removed the children and started a service plan for Jade. During the plan period, Jade lived in at least eight different places in the twelve months from the children's removal until her trial.
The Department moved to terminate Jade's rights to her children based on multiple grounds and for the best interests of the children. At trial, Jade and other witnesses testified about Jade's background, her actions during the period her children were in the Department's care, and her ability to care for the children. When the Department rested, Jade moved for a directed verdict, which the trial court denied. Thereafter, the trial court heard testimony from two of Jade's friends; it also heard testimony from the CASA volunteer—who addressed the children's current well- being and their development in foster care. After all parties rested, the trial court ordered Jade's parental rights to C.R.L. and A.E.V. terminated.
Jade appeals. She argues the evidence is neither legally nor factually sufficient to support the trial court's finding that terminating her parental rights is in the children's best interests.
STANDARDS OF REVIEW
If the Department moves to terminate a parent's rights to a child, the Department must prove by clear and convincing evidence that (1) the parent committed one of the grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).
A. Legal Sufficiency
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "'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., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court "'determines [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true,'" the evidence is legally sufficient. See id. (quoting In re J.F.C., 96 S.W.3d at 266).
B. Factual Sufficiency
Under a clear and convincing standard, the evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C. H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266; accord In re H.R.M., 209 S.W.3d at 108.
BASES FOR TERMINATION
A. Jade's Course of Parental Conduct
The trial court found by clear and convincing evidence that Jade's conduct was grounds for termination under subparagraphs (D), (E), (O), and (P) of section 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1). On appeal, Jade does not challenge the trial court's statutory grounds findings.
B. Best Interests of the Children
Instead, Jade challenges the legal and factual sufficiency of the evidence that terminating her parental rights is in her children's best interests. See id. § 161.001(b)(2). We briefly review the law pertaining to determining the best interest of the child. The factors a court uses to ascertain the best interest of the child may include the following:
(B) the emotional and physical needs of the child now and in the future;Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (footnotes omitted); accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
. . .
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Applying each standard of review, we examine the evidence pertaining to the best interest of each of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re E.N.C., 384 S.W.3d at 807; In re J.F.C., 96 S.W.3d at 284.
EVIDENCE OF BEST INTEREST OF THE CHILDREN
At the bench trial, the trial court heard testimony from Jade, her friends, Department case workers, and the CASA volunteer.
A. Jade's Testimony
Jade testified to the following facts.
1. Drug Discovery Incident
On June 5, 2015, her boyfriend called her. He was away from the home, and he was "freaking out because he thought his parents were going to find his drugs in the house." He told Jade he had misplaced his drugs, they were somewhere in the house, and he wanted her to look for them. She did, but did not find them. Later that day, when Jade's then two-year-old child brought her a bag of drugs, she "grabbed it and freaked out and called the police." She said, until that morning, she was not aware that her boyfriend was using methamphetamine. She insisted she was sober: she "was not using meth . . . and didn't drink alcohol" because she was "100 percent breastfeeding my [infant child]." She added that "at that time I was clean and sober for 14 months."
2. Relationship with her Boyfriend
Although she had lived with her boyfriend in his parents' home for about two years, Jade said she was trying to leave the relationship because her boyfriend was being verbally and mentally abusive. One issue between Jade and her boyfriend was that, although A.E.V.'s birth certificate listed her boyfriend as the father, genetic testing revealed he was not. Further, as a result of Jade calling the police, her boyfriend's parents told her she and her children must move out of the home.
3. Frequent Moves, Multiple Residences
The night of the incident, Jade stayed with "someone she barely knew," but then moved into the home where her children had been placed. She was in that home for only about five days, because the placement ended, and she had to move out. Thereafter, she moved a number of times. Jade recounted the places she lived from June 2015 through June 2016; she listed eight different locations which included six locations in Texas and two in Florida. In Texas, she lived with an aunt and a grandmother—when she was "bouncing . . . back and forth, back and forth" for about three months. Later she lived in an apartment that she sublet from a man, "but he actually got a forcible detainer too on him so he had to leave," and she had to move. After that, she lived in other locations, including a Florida jail for three days and a Florida in-patient drug rehabilitation facility for about fourteen days. Thereafter, she moved in with a woman in Texas for three days. After that, about three to four weeks immediately preceding trial, she moved in with the Delmas family—where she was presently living.
4. Employment History
Jade stated she has a job; she works for a company where she does "whatever my old boss needs me to do. Our company shut down, so right now we're . . . just doing side work, cleaning houses, doing lawns." She did not provide the Department with pay stubs because she does not receive any: "We get paid in cash."
5. Compliance with Service Plan
Jade noted her service plan required her to take medication as prescribed, but she was not prescribed any medications. She attended all but two of her anger management classes. She was only allowed one class absence, but she got an extra assignment to make up for missing one class. She did not get a completion certificate, but she "had everything completed." There were no domestic violence classes available in the county in which she was living, so she did not attend a domestic violence class. She was required to participate in substance abuse assessment and follow all recommendations of the assessment. The assessment recommended outpatient therapy, and she had been involved with that for the six weeks prior to trial. She attended fifty-six AA meetings in sixty days and she had a sponsor, but she did not provide the attendance sheets to the Department because her sponsor had them. She also attended all the required parenting classes, but she does not have a certificate of completion. She tried to submit to drug testing but could not because the Department did not have her test paperwork in order. She acknowledged that the one UA sample she submitted tested positive for methamphetamine, but she stated she "did not do meth."
B. Responding Caseworker's Testimony
Annie Barker, a family-based worker for the Department, was the Department's representative that responded to Jade's call to the police. Barker testified to the following facts.
When Barker arrived at Jade's home, Jade was very upset, and it was very difficult to communicate with her. Jade was holding infant A.E.V. in her arms and moving rapidly and erratically in the small bedroom where she was standing. Jade "had the baby on one arm and would basically turn and [the baby's head would] just barely miss like the door facing or barely miss the chest of drawers."
Jade told Barker about drugs being in the home and that Jade and her boyfriend used meth the previous night. Jade also said her boyfriend had been violent with her in the past. Because her boyfriends' parents were insisting that Jade and the children leave the home, Barker arranged for a family to take the children that night. The children were taken to the placement home, and Jade left to stay with someone else.
After that evening, Barker had no further involvement in this case.
C. Department Investigator's Testimony
David Estrada, an investigator with the Department, testified to the following facts. He interviewed Jade in the children's placement home a few days after the incident. Jade admitted she used methamphetamine within the previous four weeks with her boyfriend in the home where she and the children had been living. Because the family with whom the children had been placed advised Jade that she and the children could no longer stay with them, Estrada asked Jade if she had a place to go. She indicated she did not, and the Department did not have another placement at that time. Based on Jade's statement that "she was going to leave with the children," Jade's drug use, her boyfriend's drug use and domestic violence, and Jade's lack of suitable housing for the children, Estrada recommended that the children be removed, and the Department took custody of the children.
D. Department Case Worker's Testimony
Brianne Chapman, a conservatorship worker for the Department, testified as follows.
1. Classes
Jade had a service plan; it required her to take classes on parenting, anger management, and domestic violence, and to attend Alcoholics Anonymous or Narcotics Anonymous meetings. The classes provide certificates of completion to those that successfully complete the requirements but Jade did not provide Chapman with any certificates of completion. The AA/NA classes provide signed attendance sheets, but Jade never submitted any. Jade was also assigned to attend therapy sessions. She attended a few times, but she did not complete the assigned sessions.
2. Psychological Examination
Chapman made an appointment for Jade to receive a psychological examination with Dr. James Shinder. Dr. Shinder met with Jade, and Chapman read a letter from Dr. Shinder which included the following remarks:
It was readily evident from the time of [Jade's] arrival that she did not wish to complete this testing. She was highly derogatory toward CPS personnel and the courts and explained that she was being court-ordered to complete this evaluation. She explained that she was instructed by her attorney to obtain written documentation in regard to her having presented for this evaluation and wanted this to be signed prior to participating in the testing.Dr. Shinder explained to Jade that he would sign a letter for her after she completed the examination, but not in advance. He added the following:
[Jade] was not willing to address the circumstances and stated that she was discussing this matter with her attorney. She was using her cell phone throughout this time. . . .
. . .
It appeared that on this date she was not willing to realistically address the demands of the evaluation.
. . .
The extreme nature of her behavior on this date is basis for substantial concern given the circumstances of CPS['s] intervention. I regret that this evaluation was not completed; however, . . . extensive effort was made to attempt to address this situation with [Jade], but she was unrelenting in her perspective.
3. Drug Tests
Jade was required to submit to random drug tests as arranged by the Department, but she provided a sample for only one test, in December 2015, and that sample tested positive for methamphetamine. The court suspended Jade's visitations with her children until she completed three clean urinalysis drug tests, one clean hair follicle test, and a psychological evaluation. Because Jade did not complete the requirements to regain visitations, her visits remained suspended through the time of trial.
4. Safe, Stable, Suitable Housing
Another one of Jade's service plan requirements was to maintain safe and stable housing that is suitable for her children. Jade moved often and, during the twelve months' period Jade's children were in Department custody, Jade gave Chapman eleven different addresses for mail delivery.
5. Visits with the Children
During the period Jade could visit her children, Chapman scheduled Jade for fifteen visits with her children, but Jade attended only eight visits. During those visits, Jade brought items for the children including diapers, baby wipes, and clothing. Jade's visits were suspended in December 2015 because her UA sample tested positive for methamphetamine. Jade could have regained permission to visit her children, but she did not take the necessary steps, and she had not seen her children for the seven months before trial.
6. Recommendation to the Court
Chapman believed terminating Jade's parental rights to her two children was in the children's best interests. Chapman explained that the children were three and one years old respectively, they were not able to care for themselves, and Jade's drug use with the children present in the home and the evidence of her continued drug use endangered the children. Further, Jade had not provided pay stubs to show she was gainfully employed, and she had not provided evidence of safe and stable housing suitable for the children. The children have bonded with the foster mother, they are very happy in the foster home, and the three-year-old has never asked Chapman about Jade.
E. Chris Delmas's Testimony
Chris Delmas testified on Jade's behalf. He is her friend; he has known her for about two weeks and they have a platonic relationship. He and Jade are both living in his parents' home, and because Jade does not have a car, he sometimes drives Jade to AA and NA classes. Since he met Jade, he has never seen her use drugs or alcohol, and she has been lucid and coherent.
F. CASA Volunteer's Testimony
The CASA volunteer testified to the following facts. She was assigned to the case in late June 2015, and she visited the children in their foster home at least once each month. The children are very well adjusted in the home. C.R.L. is protective of A.E.V. and can hold and feed A.E.V. without assistance. The children play nicely with the other two children in the foster home. C.R.L. is very attentive to the foster parents, and C.R.L. responds to their requests.
The CASA volunteer opined that it would be in the children's best interests to terminate Jade's parental rights to them. When the court asked the CASA volunteer if she had anything else to say to the court, the CASA volunteer added:
Just to reiterate that termination is in the best interest of the children. It doesn't appear that the mother has done the things she's supposed to do, that the Court has asked her. It doesn't appear that she has complied with any of that and is not willing to provide a safe atmosphere for the children . . . .
G. Derrick Cooper's Testimony
The last witness was Derrick Cooper; he testified to the following facts. About eighteen months before the trial, Jade lived with him for four or five months. They did not have a romantic relationship, but he was able to observe Jade interacting with her children. She was a loving, caring mother. She fed, changed, and bathed the children regularly. He never saw her use drugs or alcohol, and he never saw any signs for concern in Jade's care for her children.
MOTION FOR DIRECTED VERDICT
After the Department rested, Jade moved for a directed verdict on the basis that there was no evidence to support a finding that terminating Jade's parental rights to her children was in the children's best interests; the trial court denied the motion. On appeal, Jade argues the "Department did not present any direct testimony in its case-in-chief that termination of the parent-child relationship was in the best interest of the children."
A motion for directed verdict is appropriate if there is no evidence of an essential element of a claim or defense. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). We use a legal sufficiency standard to review a trial court's denial of a motion for directed verdict. City of Keller, 168 S.W.3d at 823; King Ranch, 118 S.W.3d at 750-51. We review the "evidence in the light most favorable to the nonmovant." City of Keller, 168 S.W.3d at 824. If "there is any evidence of probative value to raise an issue of material fact on the question presented," the movant is not entitled to a directed verdict. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 217 (Tex. 2011).
When Jade moved for a directed verdict, the trial court had heard testimony from Jade and three Department witnesses. The testimony included Jade's drug use, her boyfriend's drug use and domestic violence, C.R.L.'s discovery of drugs in the home, Jade's failure to comply with service plan requirements, Jade's UA sample that tested positive for methamphetamine, and the children's happy and well-adjusted conditions in their foster home. Viewing the evidence in the proper light, see City of Keller, 168 S.W.3d at 824, we conclude there was ample "evidence of probative value to raise [issues] of material fact on [the best interest of the children]," and the trial court did not err when it denied Jade's motion, see Exxon Corp., 348 S.W.3d at 217.
JADE'S PARENTAL RIGHTS
In this bench trial, the trial court was the factfinder, and it was "the sole judge of the credibility of the witnesses and the weight to be given their testimony." See Alonso v. Alvarez, 409 S.W.3d 754, 757 (Tex. App.—San Antonio 2013, pet. denied); see also Thompson v. Smith, 483 S.W.3d 87, 93 (Tex. App.—Houston [1st Dist.] 2015, no pet.) ("In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses."). The trial court heard testimony from Jade and others regarding Jade's actions and the children's circumstances, and it could "believe one witness and disbelieve another." See City of Keller, 168 S.W.3d at 819 (factfinder's province).
The trial court could have disbelieved Jade's testimony that she had not used drugs for fourteen months prior to the incident, and believed the Department workers' testimony that Jade told them she and her boyfriend were both using methamphetamine during the month prior to the incident—a time when Jade testified she was "100 percent breastfeeding" her two-month-old child A.E.V. See Holley, 544 S.W.2d at 372 (factors (B), (C), (H), (I)). The trial court could have believed the testimony that Jade failed to submit to random drug tests as required, and that the one test she took—six months into her service plan—was positive for methamphetamine. See id. (factors ((B), (C), (H), (I)). The court could have disbelieved Jade's testimony that she substantially completed many of her classes, and believed Chapman's testimony that Jade did not provide any completion certificates from any of the required classes, did not provide any signed attendance sheets from any AA/NA classes, and Dr. Shinder's report that Jade refused to complete the psychological examination as required by the court. See id. (factors ((B), (C), (H), (I)).
From this evidence, the trial court could have reasoned that if Jade regained conservatorship of her children, she would continue to use methamphetamine and would again put her children's needs at risk and endanger her children. See id. (factors (B), (C), (H)). Given Jade's admissions that she moved frequently, the court could also have reasoned that Jade failed to provide a safe and stable home that was suitable for her two small children. See id. (factors (B), (C), (H), (I)).
The court could also have believed the testimony that C.R.L. and A.E.V. were very well adapted to their foster home, they were progressing normally, and they fit in well with the other two children and the foster parents. The court could have believed that the foster parents were providing a safe, stable environment for the children, and that the children's present and future physical health and emotional development would be best protected in the foster parents' home. See id. (factors (B), (C), (D), (G)).
Reviewing the evidence under the two standards, we conclude the trial court could have formed a firm belief or conviction that terminating Jade's parental rights to C.R.L. and A.E.V. was in the children's best interests, and the court could have resolved the disputed evidence in favor of its findings. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 27. Therefore, we conclude the evidence is legally and factually sufficient to support the trial court's findings and order. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 27.
CONCLUSION
Jade does not challenge the trial court's findings that her course of conduct comprises multiple bases to terminate her parental rights. Instead, she argues the trial court erred when it denied her motion for directed verdict and the evidence is neither legally nor factually sufficient to support the trial court's finding by clear and convincing evidence that terminating her parental rights is in the children's best interests.
Having examined the evidence under the applicable standards of review, we conclude there was ample evidence pertaining to the best interests of the children when the trial court denied Jade's motion for directed verdict, and the evidence pertaining to the trial court's findings is both legally and factually sufficient for the trial court to have found by clear and convincing evidence that terminating Jade's parental rights to C.R.L. and A.E.V. was in the children's best interests.
We affirm the trial court's order.
Patricia O. Alvarez, Justice