Opinion
No. 04-17-00797-CV
04-25-2018
IN THE INTEREST OF D.J.O. AND I.N.V., CHILDREN
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-01430
Honorable Peter Sakai, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
Appellant Father appeals the trial court's order terminating his parental rights to his two children, D.J.O. and I.V.N. The only issue presented on appeal is whether the evidence is legally and factually sufficient to support the trial court's finding that termination was in the children's best interest. We affirm the trial court's order.
Mother voluntarily relinquished her parental rights to her children R.J.R., D.J.O., and I.V.N. Appellant is the alleged father of D.J.O. and I.V.N., and it is with regard to those children that appellant's parental rights were terminated. Accordingly, this appeal addresses only the portion of the trial court's order terminating appellant's parental rights to the children D.J.O. and I.V.N.
BACKGROUND
On June 30, 2016, the Texas Department of Family and Protective Services ("Department") filed a petition to terminate parental rights. On the date the petition was filed, D.J.O. was nearly three years' old and I.V.N. was approximately six-and-a-half months' old. A bench trial was held on November 27, 2017.
Department caseworker Claudia Cruz testified the Department received a referral on November 9, 2015, alleging abuse by Mother because I.V.N. experienced tremors associated with methadone withdrawal. Later, it was confirmed that both I.V.N. and Mother tested positive for methadone, benzodiazepines (Xanax), and cocaine at the time of I.V.N.'s birth. The Department referred the family for services.
Cruz testified that on December 11, 2015, the Department received another referral, alleging Mother had been involved in an altercation with Father's sister, Jenny, resulting in law enforcement officers being called to the home for a domestic dispute. Mother told officers Father hit her with a baby carrier, but she later recanted that statement. The Department held a safety network meeting with Mother, Father, and others where it was decided Father would be the safety plan for Mother and Mother would not be alone with the children.
In April 2016, Department caseworker Lorena Ramos received a phone call from I.V.N.'s home-health therapist. The therapist informed Ramos that when the therapist went to the home, the children were alone with Mother, which was in violation of the family safety plan. When Ramos subsequently conducted a home visit, she found Father sitting in the driver's seat of his vehicle, with the ignition engaged and music playing loudly, his nieces in the back seat, and an open container of beer in his hand. A six-pack of alcohol sat beside Father in the front passenger seat. Law enforcement officers were called to the home.
On June 28, 2016, law enforcement officers were called to the home following a domestic violence incident during which Father struck Mother and knocked her to the ground. According to Ramos's affidavit, Mother also related the domestic abuse had been occurring for "a few months" and specifically described an incident during which Father "pinned her against the wall by her throat, choking her and then let her fall and threw the stroller at her and began to push it down on top of her."
Father left the home before officers arrived, and in the course of their investigation, officers discovered marijuana plants growing in the house. According to Ramos's affidavit, the marijuana plants belonged to Father, and Mother admitted Father used marijuana. However, at trial, Mother testified she couldn't say Father was growing the plants because she "never saw him go and, you know, do whatever he had to do to grow them, but they were there." Father testified the marijuana plants "were just there."
On June 28, 2016, the Department initiated a new safety plan through which Mother agreed she would not allow Father access to the home or children. However, the next morning, on June 29, 2016, Mother told Ramos that Father went to the home and collected the children to take them to daycare. The children were removed from their parents' custody, and the Department filed its original petition on June 30, 2016.
Department caseworker Norma Hayes testified Father was required to engage in "[d]rug treatment, drug assessment, drug counseling," psychosocial counseling, and psychological counseling if it was recommended by the counselor, as well as parenting classes. Father was also required to maintain, and provide proof of, stable employment. Hayes testified that although Father completed the initial drug assessment and treatment, he tested positive two months following completion of those particular services. After testing positive, Father was ordered by the trial court to undergo an additional drug assessment by submitting to both urinalysis ("UA") and hair follicle testing, but Father did not do so.
Between February 2017 and the date of trial, Father tested negative seven times, but failed to report for twelve UA tests. Hayes testified there were also issues with the hair follicle testing because Father did not have enough hair to submit for that type of testing. The referral for testing was renewed from June to July 2017, but in July, Father again did not have enough hair sufficient for testing. Hayes testified this was unusual because when Father tested positive for cocaine in February 2017 via a hair follicle test, there was no problem with the length or existence of Father's hair. Father testified he did not deliberately cut or shave his hair short, and he denied having used cocaine.
Father also testified he was employed. However, according to Hayes, Father had not provided proof of employment as required. Father additionally testified that he was not able to obtain an appointment for testing and that completing his services conflicted with his work schedule. Father testified that when he visited with his children they ran to him and hugged him, and they were always sad to see him leave. Hayes observed, however, that the children were more affectionate and bonded with their foster parents, who hoped to adopt the children. According to Hayes, the foster parents helped the children maintain a relationship with their half-sibling, who is not a subject of this appeal, and had enrolled the children in flag football and dancing.
After considering all the evidence and the parties' arguments, the trial court terminated Father's parental rights to the children D.J.O. and I.V.N. This appeal followed.
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
To terminate parental rights pursuant to section 161.001 of the Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial court found clear and convincing evidence of three predicate grounds to terminate Father's parental rights and also found termination of Father's parental rights was in the best interest of the children.
When reviewing the sufficiency of the evidence, we apply the well-established standards of review. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In re J.P.B, 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency).
BEST INTERESTS
In determining whether a child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Family Code section 263.307(b). See TEX. FAM. CODE ANN. § 263.307(b). We also apply the non-exhaustive Holley factors to our analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Evidence that proves one or more statutory ground for termination may constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(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.
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 v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Both children were very young at the time of trial, and there was no direct evidence of the children's desires. However, there was evidence the children bonded with their foster parents and were well-cared for by their foster parents. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (factfinder may consider whether children have bonded with foster family and are well-cared for when children are too young to express their desires). Further, there was evidence Father did not have a stable residence during the pendency of the case. Id. (a stable permanent home for a child is an important consideration). Although Father testified he was employed, he did not provide proof of employment as required. Additionally, evidence was presented of Father's history of drug use and failure to submit to drug testing, despite being ordered by the trial court to undergo further drug assessment. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (evidence that the appellant failed to comply with the court-ordered service plan supported the trial court's best-interest determination).
Viewing the evidence in the light most favorable to the trial court's finding, we conclude the evidence is legally sufficient to support a firm belief or conviction that termination of Father's parental rights was in the children's best interest. In re J.P.B., 180 S.W.3d at 573. Having given due consideration to the disputed evidence in the case, we reach the same conclusion regarding the factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Any evidence favoring a decision contrary to the trial court's decision "is not so significant that no reasonable juror could have formed a firm belief or conviction" that termination of Father's parental rights is in the best interest of the child. In re K.M.L., 443 S.W.3d 101, 117 (Tex. 2014).
CONCLUSION
We overrule Father's sole issue on appeal and affirm the trial court's order terminating Father's parental rights.
Irene Rios, Justice