Opinion
04-22-00812-CV
05-10-2023
IN THE INTEREST OF S.E.J., S.D.J., and J.J., Children
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2021PA00964 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Patricia O. Alvarez, Justice
AFFIRMED
In this parental rights termination case, the trial court terminated Mom's parental rights to her children S.E.J., S.D.J., and J.J. Mom challenges the legal and factual sufficiency of the evidence in support of the trial court's findings on statutory grounds (N), (O), and (P), as well as the best interests of the children.
We use aliases to protect the children's identities. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8.
Having reviewed the evidence under the applicable standards of review, we conclude it was legally and factually sufficient to support the trial court's findings. We affirm.
Background
Mom was referred to the Department of Family and Protective Services after her two-year-old son shot himself in the leg. As part of the intake, the Department's investigator noted concerns about Mom's history of drug use.
Dad did not appeal. We recite only the facts that pertain to Mom and the children.
The Department's caseworker created a service plan for Mom, which Mom signed and confirmed she understood. Mom's ordered services included completing a drug assessment and any recommended treatment, completing a parenting class, completing individual counseling, and providing proof of stable employment and safe housing for the children.
At the one-day bench trial on Mom's parental rights, which took place over a year after Mom was required to begin work on her service plan, Mom asked for more time to complete her plan requirements. The trial court denied her request. The Department's caseworker testified, and Mom also testified. Both the Department and the children's attorney ad litem recommended termination of Mom's parental rights. The trial court adopted the recommendation and terminated Mom's parental rights to her three children.
On appeal, Mom argues that the evidence was neither legally nor factually sufficient to support the trial court's findings under subsections (N), (O), or (P) and as to the children's best interests.
Evidence Required, Standards of Review
The evidentiary standardsi the Department must meet and the statutory groundsii the trial court must find to terminate a parent's rights to a child are well known, as are the legaliii and factualiv sufficiency standards of review. We apply them here.
Concerning the testifying witnesses, the trial court was the "sole judge[] of the credibility of the witnesses and the weight to give their testimony." See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); cf. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). We begin with Mom's statutory grounds argument.
Statutory Grounds for Terminating Mom's Parental Rights
A. Statutory Ground Finding Required
A single statutory ground finding, when accompanied by a best interest of the child finding, is sufficient to support a parental rights termination order. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.-San Antonio 2017, no pet.). The Department argues the evidence was sufficient to support the trial court's finding on each ground, i.e., (N), (O), and (P). We begin with ground (O).
B. Section 161.001(b)(1)(O)
A trial court may order termination of the parent-child relationship if it finds the following by clear and convincing evidence:
1) The child was removed under chapter 262 from the parent due to abuse or neglect;
2) the child was "in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result;"
3) a court order "specifically established the actions necessary for the parent to obtain the return of the child;" and
4) the parent failed to comply with the provisions of the court order.Tex. Fam. Code Ann. § 161.001(b)(1)(O); accord In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013); see also Tex. Fam. Code Ann. § 262.001 (authorizing removal of child by the Government in a suit affecting the parent-child relationship).
Of these elements, Mom challenges the trial court's finding that she failed to comply with the provisions of the court order that established the actions necessary to regain custody and conservatorship of her children.
C. Provisions of the Court Order
The trial court's order was filed in the court on August 5, 2021, and incorporated Mom's July 2021 family plan by reference. The order required the following actions:
a. Maintain a safe, stable home.
b. Maintain stable employment.
c. Submit to and fully cooperate with a drug and alcohol assessment.
d. Engage in drug treatment classes, including inpatient/outpatient treatment, a relapse prevention plan, and NA/AA meetings.
e. Provide NA/AA meeting attendance logs to the assigned caseworker.
f. Locate a sponsor and communicate with the sponsor on a weekly basis.
g. Provide the sponsor's contact information to the assigned caseworker.
h. Submit to random drug/alcohol tests within 24 hours of the assigned caseworker's instruction to comply.
i. Submit to and fully cooperate with a psychological evaluation with a Department-contracted provider.
j. Follow all recommendations, including diagnosis, diagnostic tests, counseling, medication, and submit to a comprehensive psychiatric evaluation if needed.
k. Engage in and complete a parenting program through an approved service provider.
l. Actively participate in weekly court-ordered visitation.
m. Confirm visitation 24 hours prior with the assigned caseworker.
D. Mom's Compliance
1. Caseworker's Testimony
a. Accomplishments
Mom's caseworker testified that, at the time of trial, Mom was engaged in services. Mom completed the parenting class, domestic violence class, a psychological assessment, and a psychiatrist visit. Mom was also participating in outpatient drug treatment and had submitted to random drug testing.
b. Failures
Mom did not begin participating in drug tests until October 2021, two months after her service plan became an order of the court. She did not begin outpatient drug treatment until February 2022. Mom participated in the drug tests inconsistently and showed mixed results. Mom would test positive for marijuana, then negative, then negative/diluted. In June 2022, three months before trial, Mom tested positive for cocaine, benzodiazepines, and marijuana. The following month, Mom tested positive for marijuana. In August and September, Mom tested negative for drug use.
Mom engaged in therapy inconsistently, and she maintained inconsistent contact with her caseworker. Mom regularly had no phone and no housing. She did not maintain consistent employment until August 2022. She only provided items such as diapers or food for her children when she visited, and her visits were inconsistent. She did not visit with her children between April and September 2022. The caseworker testified that Mom attributed the visitation lapse to her strained relationship with her sister and to her lack of transportation. The caseworker stated that she offered to help with transportation in July or August 2022, but that Mom canceled the visit. The caseworker also stated that she had offered multiple times to drive the children to the Department to visit with Mom, but that Mom had not preferred that option due to the children still being very young to travel the distance to the Department.
2. Mom's Testimony
When asked about the Department's characterization of her case status, Mom expressed frustration. Mom blamed her sister, the children's caregiver during Mom's case with the Department, for being frequently unavailable for visits. Mom blamed her caseworker for not offering transportation assistance earlier in her case. Mom stated that she had a successful visit with her children the weekend before trial, but she took exception when asked whether she would consider working with her sister to meet the children's needs in the future. During the trial, Mom explicitly rejected the idea of sharing custody of her children with her sister.
When asked about drug treatment, Mom testified that, during the month and a half before trial, she was consistently participating. Mom added that she had maintained consistent employment for three months leading up to trial, but that her caseworker had not asked for documentation from her employer.
Regarding housing, Mom testified that she had been living with a friend but was unaware that she should attempt to join the lease. Mom also testified that she is homeless, which she explained created logistical difficulties for her in reaching out to her caseworker.
Mom testified that, overall, she felt she had made improvements since the beginning of her case with the Department, because she was actively engaged in her service requirements at the time of trial and because her last two drug test results were negative.
Mom denied needing any mental health intervention, because she believed she was successfully caring for her children before they were removed from her. She testified that the reason she needed more time to complete her services was because she had been delayed in completing them by external obstacles, such as arrest warrants.
3. Conclusion
Although Mom managed to become engaged in services before trial, the testimony shows that she was unable to complete her service plan. First, the testimony was silent as to Mom's NA/AA attendance logs, a sponsor, and contact with a sponsor. Next, Mom's ability to maintain stable housing as required by her family plan was unclear in the record. The caseworker testified that Mom was evicted from her last address and became homeless. Mom disputed the caseworker's testimony, stating that she lived at her last address for six years before an electrical fire forced her to leave her home. Mom testified that she was living with a friend at the time of trial who planned to help her house her children, but Mom also still referred to herself as being homeless. Additionally, Mom's compliance with drug testing appears to have been inconsistent overall, as was her compliance with counseling. But the main provision that Mom failed to comply with was the requirement that she actively participate in weekly visits with her children. Both Mom and the caseworker testified that Mom did not visit with her children between April and September 2022, despite testimony that her caseworker was available to facilitate visits. Based on the record, we conclude that the evidence was legally and factually sufficient to support the trial court's findings regarding subsection (O). See Tex. Fam. Code Ann. § 161.001(b)(1)(O); In re E.C.R., 402 S.W.3d at 240. Because only a single statutory ground finding is needed to support an order terminating a parent's rights to a child, In re A.V., 113 S.W.3d at 362, we need not address the other statutory grounds, see Tex. R. App. P. 47.1; In re R.S.-T., 522 S.W.3d at 111. We overrule Mom's statutory grounds arguments.
Best Interest of the Child
Mom argues the evidence was legally and factually insufficient to support the trial court's finding that terminating her parental rights was in her children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(2). In our review, we consider the Texas Family Code statutory factorsv and the Holley factors.vi These standards are well known, and we examine the evidence pertaining to the best interest of the child in the context of both. We also consider evidence that proves a statutory ground for termination as likewise probative on the issue of best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
The trial court heard the following testimony.
A. Relevant Statutory Factors
1. Children's Ages and Vulnerabilities
When the children were removed from Mom, S.E.J. was three years old, and S.D.J. and J.J. were two years old. As mentioned, Mom was referred to the Department after two-year-old J.J. shot himself in the leg. Then, the Department learned that three-year-old S.E.J. was not potty-trained and that he exhibited speech delay. When the children were placed with their maternal aunt, the aunt helped J.J. convalesce, which required a significant amount of physical help since J.J. was confined to a cast. S.E.J. began speech therapy. He started to show progress in the areas he had lagged in previously: he became potty-trained, and he began speaking.
The children's aunt worked full-time and cared for her own children. Even so, she ensured that Mom's children were up to date on their doctor's appointments. When Mom's caseworker updated Mom on the children's well-being, Mom responded that she was sure the children were in good hands. Mom did not inquire further, which Mom's caseworker interpreted as a lack of responsibility towards the children.
Overall, the evidence regarding Mom's understanding and care for her children's vulnerabilities weighs in favor of the trial court's best-interest finding. See Tex. Fam. Code Ann. § 263.307(b)(1); Interest of Z.R.F.M., No. 04-22-00217-CV, 2022 WL 3046939, at *4 (Tex. App.-San Antonio Aug. 3, 2022, pet. denied) (mem. op.).
2. Magnitude, Frequency, Nature of Harm to the Children
J.J.'s gunshot injury that led to Mom's Department referral was significant. This factor weighs in favor of the trial court's best-interest finding. See Tex. Fam. Code Ann. § 263.307(b)(3); In re S.N., 272 S.W.3d 45, 54 (Tex. App.-Waco 2008, no pet.).
3. Whether Mom has a history of substance abuse
The record shows that Mom has a history of substance abuse. She told her caseworker that she uses marijuana as a stress reliever, and several of her drug tests showed positive results for drug use. See Tex. Fam. Code Ann. § 263.307(b)(8); In Interest of B.R., 456 S.W.3d 612, 616 (Tex. App.-San Antonio 2015, no pet.).
4. Mom's Willingness and Ability to Participate in Counseling and Cooperate with the Department
Over the course of Mom's case, she was required to participate in a psychological assessment and counseling. By the time of trial, Mom had participated in the psychological assessment, which resulted in a recommendation for Mom to take medication. But Mom's participation in counseling was inconsistent, and she did not follow through with the recommendation to take medication for her mental health issues. Mom denied needing any mental health intervention, despite the recommendation to seek further care. This factor weighs in favor of the trial court's best-interest determination. See Tex. Fam. Code Ann. § 263.307(b)(10); In Interest of J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).
5. Mom's Willingness and Ability to Effect Positive Changes
Mom's track record with her service plan showed a pattern. She would have a phone and a phone number, but then break her phone and lose touch with her caseworker. She would live with a friend, but then leave the friend's home and become homeless again. She would test positive for drugs, and then negative. Close to trial, Mom began work as a convenience store clerk; she moved into a friend's home where there was enough room for the children; and her last two drug test results were negative. But given Mom's history of inconsistent progress, her ability to effect positive change was unclear at trial, especially because Mom continued to deny that she needed to address her mental health issues. Despite her pendulum swing in a positive direction close to trial, the overall evidence of Mom's ability to effect positive changes weighs in favor of the trial court's finding. See Tex. Fam. Code Ann. § 263.307(b)(11); In Interest of M.T., 516 S.W.3d 607, 614 (Tex. App.-San Antonio 2017, no pet.).
6. Whether Mom Demonstrates Adequate Parenting Skills
This factor includes a parent's ability to understand their children's needs and capabilities, to provide a safe physical home environment, and to guide and supervise the children consistent with their safety. See Tex. Fam. Code Ann. § 263.307(b)(12). Based on the items discussed under the first factor, the children's ages and vulnerabilities, this factor weighs in favor of the trial court's best-interest finding. Further, Mom's conflicts with her sister during visits apparently stemmed from Mom's inability to redirect the children when they would misbehave, for example, when they would hit Mom. So, despite Mom's completion of the parenting class requirement, the caseworker testified that Mom could not demonstrate an ability to apply any learned parenting skills to her children. This problem was exacerbated by Mom's failure to consistently visit her children. See Tex. Fam. Code Ann. § 263.307(b)(12); In Interest of S.J.R.-Z., 537 S.W.3d 677, 694 (Tex. App.-San Antonio 2017, pet. denied).
7. Whether an Adequate Social Support System of Family and Friends is Available
Mom rejected working with her sister to meet the children's needs. Her sister had the support of the children's grandmother and their second aunt. At the children's placement with their aunt, they regularly saw their family and lived and played with their cousins. Mom would have an adequate support system of family if she did not choose conflict over reunification. But because she refused to work with her sister for the children's benefit, this factor weighs in favor of the trial court's best-interest finding. See Tex. Fam. Code Ann. § 263.307(b)(13); In Interest of J.M.T., 519 S.W.3d at 271.
B. Relevant Holley Factors
1. Desires of the Children
At trial, parties did not discuss the young children's desires, but the Department's caseworker confirmed that the children are bonded to their aunt and cousins. "Evidence that a child is well-cared for by [her] foster family, is bonded to [her] foster family, and has spent minimal time in the presence of a parent is relevant to the best interest determination under the desires of the child factor." Interest of U.G.G., 573 S.W.3d 391, 402 (Tex. App.-El Paso 2019, no pet.) (citing In re R.A.G., 545 S.W.3d 645, 652-53 (Tex. App.-El Paso 2017, no pet.). This factor weighs in favor of the trial court's best-interest finding. See Holley, 544 S.W.2d at 372 (factor (A)).
2. Emotional and Physical Needs of the Children Now and in the Future
At trial, Mom stated that she worked as a convenience store clerk and had been so employed for several months. She also stated that she was living with a friend who was willing to help her regain custody of her children. But Mom's caseworker stated that she did not believe Mom could meet her children's needs because Mom's psychological diagnosis requires medication that Mom does not take and denies needing.
While the record reflects that Mom made efforts close to the time of trial to be able to provide for her children's needs, it also showed that her caseworker and the children's attorney ad litem did not believe Mom was ready to be responsible for her children's emotional and physical needs. Based on Mom's attitude towards her mental health status, this factor weighs in favor of the trial court's findings. See Holley, 544 S.W.2d at 372 (factor (B)).
3. Emotional and Physical Danger to the Children Now and in the Future
"A fact finder may measure a parent's future conduct by her past conduct and determine that it is in a child's best interest to terminate her parental rights." In re J.D., 436 S.W.3d 105, 119 (Tex. App.-Houston [14th Dist.] 2014, no pet.). Based on the items discussed under the children's ages and vulnerabilities, this factor weighs in favor of the trial court's findings. See Holley, 544 S.W.2d at 372 (factor (C)).
4. Child's Placement (Parental Abilities and Home Stability)
At the children's placement with their extended family, the children were thriving. All the cousins played and got along well. J.J. had begun behavioral therapy, and the children were attending a charter school. Their aunt was working on becoming a licensed caregiver. This factor weighs in favor of the trial court's findings. See Holley, 544 S.W.2d at 372 (factors (D), (G)).
5. Plans for the Children by these Individuals or by the Agency Seeking Custody
The caseworker and the trial judge expressed their past hope that Mom would accomplish the necessary improvements to reunite with her children. When that did not occur, the caseworker testified that she expected the children's aunt would adopt them. At trial, the Department recommended termination of Mom's parental rights to facilitate the aunt's adoption of her niece and nephews. See Holley, 544 S.W.2d at 372 (factor (F)).
6. Mom's Acts or Omissions and her Excuses
Mom's inconsistency in visiting her children was a serious omission during a case that was initially designed to reunite Mom's family. Mom's excuses for being unable to visit her children do not tip the best-interest scale in her favor. See Holley, 544 S.W.2d at 372 (factors (H), (I)).
C. Sufficient Evidence on Best Interest Finding
Having reviewed the evidence under the appropriate standards, we conclude the trial court could have reasonably formed a firm belief or conviction that it was in S.E.J.'s, S.D.J.'s, and J.J.'s best interests for Mom's parental rights to be terminated. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (citing In re C.H., 89 S.W.3d at 25); see also Tex. Fam. Code Ann. § 263.307(a) ("In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest."). Therefore, the evidence was legally and factually sufficient to support the trial court's best-interest-of-the-child finding. See Tex. Fam. Code Ann. § 161.001(b)(2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We overrule Mom's best interest argument.
Conclusion
The evidence supporting the trial court's findings-that Mom did not complete her service plan requirements and that it was in the children's best interests to terminate Mom's parental rights-was legally and factually sufficient. Therefore, we affirm the trial court's judgment.
i Clear and Convincing Evidence. 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's acts or omissions met one or more 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); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The same evidence used to prove the parent's acts or omissions under section 161.001(b)(1) may be used in determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.); see also Tex. Fam. Code Ann. § 161.001(b). The trial court may consider a parent's past deliberate conduct to infer future conduct in a similar situation. In re D.M., 452 S.W.3d at 472.
ii Statutory Grounds for Termination. The Family Code authorizes a court to terminate the parent-child relationship if, inter alia, it finds by clear and convincing evidence that the parent's acts or omissions met certain criteria. See Tex. Fam. Code Ann. § 161.001(b). Here, the trial court found Mom's course of conduct met the following criteria or grounds:
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child; [and] (P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance.Id. § 161.001(b)(1).
iii 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 that [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).
iv Factual Sufficiency. Under a clear and convincing standard, 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 at 25; 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.
v Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in determining the best interest of a child:
(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, the child's parents, other family members, or others who have access to the child's home;
(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;
(9) whether the perpetrator of the harm to the child is identified;
(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;
(12) whether the child's family demonstrates adequate parenting skills, including providing the child and other children under the family's care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
(C) guidance and supervision consistent with the child's safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child's needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.Tex. Fam. Code Ann. § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors).
vi Holley Factors. The Supreme Court of Texas identified the following factors to determine the best interest of a child in its landmark case Holley v. Adams:
(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency 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. 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).