Opinion
04-22-00425-CV
01-04-2023
IN THE INTEREST OF S.L.W., a Child
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-00440 Honorable Susan D. Reed, Judge Presiding
Sitting: Irene Rios, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellant Mother appeals the trial court's order terminating her parental rights to her child, S.L.W. Mother challenges the sufficiency of the evidence supporting the trial court's finding that termination was in S.L.W.'s best interest. We affirm.
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and the child as "the child" or using the pseudonym "S.L.W." See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2). The trial court's order terminates Mother's, presumed Father's, and alleged Father's parental rights to the child, but only Mother appeals the trial court's order.
Background
The Department of Family and Protective Services ("the Department") became involved in the underlying case in February 2021, when it received a referral alleging Mother was using drugs and abusing alcohol while caring for S.L.W., Mother would leave the child unattended with strangers, and Mother was giving the two-year old child sleep medication so he would sleep through the day. The Department sought removal after Mother refused to comply with a safety plan and refused drug testing.
On March 16, 2021, the Department filed a petition seeking temporary managing conservatorship of the child and termination of Mother's parental rights. On June 15, 2022, the trial court held a bench trial. The trial court heard testimony from Consuelo Rosas, a master investigator with the Department; Chabrea Taylor, the Department's caseworker; Chanda Esparza, Mother's therapist; E.E., the child's foster mother; the presumed Father; and Mother.
On June 16, 2022, the trial court entered an order terminating Mother's parental rights to S.L.W. Specifically, the trial court terminated Mother's parental rights based on statutory grounds (E), (O) and (P) in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (O), (P). The trial court also found it was in S.L.W.'s best interest to terminate Mother's parental rights. See id. § 161.001(b)(2). Mother appeals.
Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas 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. 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.
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 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 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 In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[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.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn, 433 S.W.3d at 823-24.
Best Interest
Mother argues the evidence is legally and factually insufficient to support a finding that termination of her parental rights is in S.L.W.'s best interest.
When considering the best interest of a 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 the child's best interest. Tex. Fam. Code Ann. § 263.307(a).
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 id. § 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. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. 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; (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 . . .; and (13) whether an adequate social support system . . . is available to the child.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 also 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. Desires of the Child, Plans for the Child, and Stability of the Home
"When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent." In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied).
Here, S.L.W. was only two years old at the time of trial. Chabrea Taylor-the Department's caseworker-testified S.L.W. is currently placed with a maternal relative. Taylor stated the placement "is the only home that [S.L.W.] has known for [nearly] the entire second year of his life[,]" he is "very attached to both" his foster mother and foster father, and he is bonded with them. See Tex. Fam. Code Ann. § 263.307(b)(2) (stating a best-interest factor considered by the trial court is "the frequency and nature of out-of-home placements"). According to Taylor, S.L.W. "follows [the foster parents] around the house or he's usually [laying on them]" when Taylor visits the foster home. Taylor further stated S.L.W. "seems very comfortable in the [foster] home" and its "a natural environment for him to be in." Taylor testified the foster parents were tending to S.L.W.'s special needs and it would be "detrimental to [S.L.W.] if he was removed from the [foster parents'] home." See In re D.M., 452 S.W.3d 462, 472 (Tex. App.-San Antonio 2014, no pet.) ("The stability of the proposed home environment is an important consideration in determining whether termination is in the child's best interest."). Taylor further testified relative adoption by the foster family is the Department's plan for the child and the foster parents have "expressed a long-time commitment to [S.L.W.]" 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 child is "thriving in the current placement" in a "stable and nurturing environment with a planned adoption" supported the trial court's best-interest determination.).
In contrast, Mother has only had supervised visitation with S.L.W. during the pendency of the case-spanning more than half of S.L.W.'s life. Of the forty visits scheduled with the child, Mother missed sixteen visits and was late for twelve visits. E.E.-S.L.W.'s foster mother-testified she would try to help Mother out and care for S.L.W. even before he was removed from Mother's care and officially placed in E.E.'s care.
S.L.W. was fourteen months old when the Department removed him from Mother's care.
Based on these factors, the trial court could have reasonably formed a firm belief or conviction that termination of Mother's parental rights was in S.L.W.'s best interest.
Parental Abilities and Emotional and Physical Needs
"The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." Dupree, 907 S.W.2d at 87. "This court considers a parent's conduct before and after the Department's removal of the child[]." S.J.R.-Z., 537 S.W.3d at 693. A child's young age renders him vulnerable if left in the custody of a parent who is unable or unwilling to protect him or attend to his needs. Id.
Chanda Esparza, Mother's therapist, testified Mother has struggled to show her that she can protect S.L.W. and provide him with a safe home-like environment. Esparza opined Mother has failed to exhibit emotional stability, financial stability, or residential stability.
When they spoke about Mother's criminal past, Esparza stated Mother would deny or minimize her participation in the criminal activities. See In re J.J.O., No. 04-18-00425-CV, 2018 WL 5621881, at *2 (Tex. App.-San Antonio Oct. 31, 2018, no pet.) (mem. op.) ("A parent's criminal activities and history are relevant to a best[-]interest analysis."). Esparza opined this minimization or denial is significant in regard to Mother's emotional stability because "it's very difficult for [Mother] to be able to act in a different way" if she's "not able to fully acknowledge and take responsibility for [her] own personal actions."
Regarding financial stability, Esparza testified that Mother has "had a few jobs since January [2022]." Taylor testified Mother claimed to have a job at the time of trial, but she had not provided Taylor with proof of employment. Mother acknowledged her employment woes, stating she began her current job three weeks before trial and was dismissed from her previous job after only two months. Prior to those two jobs, Mother stated she was unable to work for six months due to a broken ankle.
Esparza testified that Mother has not made any improvement regarding her residential stability. Esparza expressed a concern that Mother "was staying with a paramour whom she had just met" when the therapy sessions began in January 2022. After Esparza addressed those concerns with her, Mother ended the relationship and moved out of the paramour's home. However, Esparza stated Mother is now at her third residence in six months.
Taylor testified that Mother has had ten different residences in the fifteen months the case has been pending. Although Mother testified she has only had four residences during this time period, it was the trial court's province to weigh the conflicting evidence and determine the credibility of the witnesses providing the conflicting testimony. See HealthTronics, Inc., 382 S.W.3d at 582. Taylor opined Mother "hasn't demonstrated that she can maintain any type of stability in regard[] to housing or employment" and "she's not understanding the importance of stability."
Mother's current apartment lease was admitted into evidence. However, the impact of this evidence was minimal considering Mother entered the lease less than a month before trial.
S.L.W. is suspected of being autistic, but-because he is only two years old-he has only been diagnosed with a developmental delay. S.L.W. is currently receiving Early Childhood Intervention services, speech therapy, occupational therapy, and physical therapy to improve his developmental delay. Taylor testified S.L.W.'s foster parents are accommodating speech therapy, occupational therapy, and physical therapy twice a week in their home, indicating the foster family is caring for S.L.W.'s special needs. E.E. testified that, while in her care, S.L.W. is "growing" and is "up to 30 words" in his speech therapy with a goal of "50 words" at his next evaluation. See In re S.D., 980 S.W.2d 758, 764 (Tex. App.-San Antonio 1998, pet. denied) (holding it was in the children's best interests to place them "in a stable environment where they can receive proper care for their special needs").
Finally, Taylor testified Mother is unable to meet S.L.W.'s emotional and physical needs because she "hasn't demonstrated that she has the ability to make the proper decisions to be able to actually care for [S.L.W.], especially when it just comes to being able to show up to see him for visitation[.]" Esparza stated she has not been able to observe any positive changes in Mother's residential or financial stability and Mother is not ready to provide a stable home for S.L.W.
Based on these factors, the trial court could have reasonably formed a firm belief or conviction that termination of Mother's parental rights was in S.L.W.'s best interest.
Emotional and Physical Dangers and History of Substance Abuse
"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 S.D., 980 S.W.2d at 763). "Continued illegal drug use [by the parent] . . . is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct, and that termination is in the best interest of the child." See 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.); see also Tex. Fam. Code Ann. § 263.307(b)(8) (stating one of the factors to consider in a best interest determination is "whether there is a history of substance abuse by the child's family or others who have access to the child's home"). "This court considers a parent's conduct before and after the Department's removal of the children." S.J.R.-Z., 537 S.W.3d at 693.
One of the concerns that brought the child into the Department's care was an allegation that Mother was using illegal drugs and abusing alcohol while caring for the child. Mother completed her drug assessment, but drug treatment was not recommended because Mother denied using illegal drugs. Taylor explained the drug assessment is wholly based on the parent's truthfulness and cooperation. She further explained the Department is unable to make a referral for drug treatment or drug counseling unless such treatment or counseling is recommended following the drug assessment. However, Mother's safety plan required her to take random drug tests when requested by the Department. Taylor testified Mother only took two out of the fourteen random drug tests requested by the Department. One of the drug tests taken on April 28, 2022- less than two months before trial-produced a concerning result. Following the concerning result, Taylor instructed Mother she would need to participate in another drug assessment. Mother initially denied drug use, but later stated it was "a one-time incident." The record does not reflect that Mother took a second drug assessment and Taylor concluded Mother has not "successfully addressed the issues that brought S.L.W. into care."
The trial court also heard testimony that Mother was charged with "interfering with child custody" and arrested during the pendency of the case for a bond violation. "A parent's criminal activities and history are relevant to a best[-]interest analysis." See J.J.O., 2018 WL 5621881, at *2. "Criminal conduct, prior convictions, and incarceration affect[] a parent's life and h[er] ability to parent, thereby subjecting h[er] child to potential emotional and physical danger." Id.; see also E.D., 419 S.W.3d at 620 (holding a factfinder in a parental termination case may judge a parent's future conduct by her past conduct).
Mother testified that she wouldn't relinquish custody of her older daughter to the father of the child, who has sole managing custody.
Based on these factors, the trial court could have reasonably formed a firm belief or conviction that termination of Mother's parental rights was in S.L.W.'s best interest.
Programs, Acts or Omissions, Excuses for Acts or Omissions, Willingness to Effect Positive Change
Mother's service plan, which was admitted into evidence, required Mother to obtain stable housing and employment, complete parenting classes, complete a drug and alcohol assessment, attend and participate in Narcotics Anonymous/Alcoholics Anonymous ("NA/AA") classes, take random drug and alcohol tests, participate in a psychological evaluation, attend and actively engage in therapy, and participate and complete the National Alliance on Mental Illness ("NAMI") program. The plan is signed by Mother and Taylor stated she went over the plan with Mother.
Taylor testified that Mother completed the parenting classes, the first drug assessment requested, the psychological evaluation, the NAMI program, and-at the time of trial-Mother was engaged in therapy. However, as mentioned above, Mother has not obtained stable housing or employment and did not comply with her random drug testing requirements. There was no testimony on whether Mother participated in NA/AA classes.
In addition, Mother missed sixteen of the forty visits with S.L.W. and was late to twelve of the visits she did attend. Mother testified she was late to visits because the transportation provided by the Department did not get her to the visitation in time, but she later admitted there were "a couple of times that [she] was late on [her] own." Mother also stated she missed visitations because she had interviews for jobs. However, Mother later admitted she only missed three visits due to job interviews. Mother testified the remaining missed visits were because she was either sick or did not have transportation.
Although Mother is currently engaged in therapy, Esparza expressed concern that Mother did not begin therapy until January 2022 and stated the delay showed that Mother lacked urgency to address the problems that brought S.L.W. into the Department's care. Mother testified she made several attempts to contact her first therapist and she engaged in therapy as soon as the Department referred her to Esparza. When asked about Mother's progress, Esparza stated that Mother has not met her treatment goals.
Regarding the missed drug tests, Mother explained she was unable to facilitate transportation to the testing facility because the Department's requests to test came without notice. However, Mother often contradicted this testimony and stated she missed drug tests because she "had other things scheduled." Taylor testified on one occasion a scheduled visitation with S.L.W. was cancelled at the last minute-presumably by the foster parents-but the Department's transporter had already arrived to take Mother to the visit. In that instance, Taylor asked Mother to take a drug test since the transporter was already there. Mother replied that she had "something else that was planned and wasn't able to." Here, the trial court heard testimony that Mother was ready and able to attend a visitation with S.L.W., but unable to take a drug test during the same period of time as the cancelled visitation because she had "something else that was planned."
Taylor opined termination of Mother's parental rights is in S.L.W.'s best interest because Mother "hasn't been able to address any of the allegations that brought S.L.W. into [the Department's] care[,] [s]he doesn't accept any responsibility for her actions or lack of actions in regard[] to caring for [S.L.W.] or the actions that . . . [created] an unsafe environment[,] [s]he hasn't demonstrated that she can maintain any type of [stable housing or employment,]" and there is continued drug use. Although Mother's testimony presented an excuse for each of her shortcomings, the trial court expressly stated on the record that it did not find Mother's testimony "real credible" when rendering its decision. See Coburn, 433 S.W.3d at 823-24 (holding we defer to the trial court's judgment regarding credibility determinations because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal").
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Mother's parental rights is in S.L.W.'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.
Conclusion
The trial court's order terminating Mother's parental rights to S.L.W. is affirmed.