Opinion
NO. 01-18-00043-CV
07-03-2018
IN THE INTEREST OF A. R. R. AKA A. R. R., A. M. R. AND A. R. R., CHILDREN
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2017-00427J
MEMORANDUM OPINION
The mother and father of three children appeal from the trial court's order terminating their parental rights. The father's appeal challenges the legal and factual sufficiency of the evidence supporting (1) the predicate grounds for termination, (2) the finding that termination of his parental rights was in the children's best interest, and (3) appointment of the Department as the sole managing conservator of the children. See TEX. FAM. CODE §§ 153.131, 161.001(b)(1)(D), (E), (O), (b)(2), 161.207, 263.404. The mother's appeal challenges the factual sufficiency of the evidence supporting the finding that termination of her parental rights is in the children's best interest. See id. § 161.001(b)(2). We conclude that legally and factually sufficient evidence supports the challenged findings and therefore affirm.
Background
The mother and father, who are not married, have three children: a son born in September 2013, a son born in January 2016, and a daughter born in January 2017. The Department became involved with the family in January 2016, based on a report that the mother was having panic attacks and suicidal ideation. The mother would bang her head against the wall during panic attacks. During the period of investigation by the Department, the mother refused several requests by the Department for a drug test. For the drug tests that were conducted, the mother tested positive for marijuana in February, March, April, May, and June of 2016. She tested positive for marijuana during her hospitalization for the birth of the second child.
While the family was working with the Department's family-based services, the family left Texas to visit the mother's family in West Virginia in July, and planned to return in two weeks. The Department could not reach the family upon their return. When the Department reached the father in September, he refused to disclose where the family was living.
The Department received another referral in December 2016, when the mother was hospitalized during her pregnancy with the third child. She refused a drug test in the emergency room. At the hospital, the mother complained about suicidal ideation and threatened to hang herself. Also in connection with the hospital visit, the Department received a referral for neglectful supervision of the oldest child, who presented with a black eye.
Department workers interviewed both the mother and father during the mother's hospitalization. Neither was employed, and the family did not have a stable living arrangement. They were living in a condominium that family members had purchased for them with the plan that the father would renovate it. The condominium did not have any water or electricity. The mother, father, and oldest child were toileting outdoors.
The mother told a Department interviewer that the father had slapped and pushed her. She later denied the abuse, and she told the interviewer that the father did not really abuse her because he was trying to restrain her from banging her head against the wall. The mother reported in medical records that "she often hits her head against things when she experiences a panic attack." The mother disclosed to a nurse, however, that the father "has pushed her and slapped her." The nurse "witnessed bruises on the patient's legs" that the mother told the nurse were caused by the father. A social worker who interviewed the mother indicated that the mother "was not truthful about the information she provided." Her health care providers diagnosed the mother with anxiety disorder, and though the mother "seem[ed] to minimize the true extent to her problem" they opined that the mother "does not exhibit any acute psychiatric symptoms that will cause immediate danger to herself and others."
In January 2017, the Department received another referral about the family—for alleged physical neglect of the two older children. The two children had been sick for weeks with a cough and possible flu, but they had not been taken to see a doctor. The children played outside in the cold without jackets. The oldest child had a laceration above his left eye, for which he did not receive medical treatment. The mother described the child as "clumsy" on social media, and the father stated that the laceration was caused when the child hit his face on the counter.
After this referral, the Department continued to investigate the family's home conditions. The Department confirmed that the father and mother were not employed. The condominium was unclean and without any beds. The family slept together on the floor. Until the condo had running water, the family bathed at a neighbor's home and would fill buckets of water to bring back to the condominium. In medical records, the mother described the condominium as "a construction zone with mold everywhere."
Later in January 2017, the third child was born. The mother tested positive for marijuana, as she did at the child's second birth. The Department received another referral—for another bruise on the oldest child, under his right eye. The father explained that the second child had fallen on the four-year-old child while he was mopping, and the mop handle hit his eye, causing the bruise. The two older children had multiple insect bites on their bodies, including their faces. The mother explained that the bites resulted because the children disobeyed her request not to sit in an ant pile. The Department interviewed the oldest child at the hospital. He stated that received the bruise under his eye because "he fell." He also stated that he received a scar on his nose when "he fell."
The Department initiated this suit at the end of January. The Department was awarded temporary conservatorship of the children, and the mother and father each signed a family service plan, which the trial court incorporated as its order. The plan required drug testing.
During the course of the suit, both the mother and father tested positive multiple times for marijuana or marijuana metabolite. The father did not complete individual and group substance-abuse therapy, and neither parent completed parenting classes. The mother began, but failed to complete, therapy.
Trial was to the court in November 2017. The Department introduced the drug testing results for the father, which indicated that he tested positive for marijuana and marijuana metabolite in February 2017, that he failed to appear for testing in March 2017 as ordered, and that he tested positive for marijuana or marijuana metabolite in April, May, June, August, and September 2017.
The introduced lab reports indicating that the mother tested positive for marijuana or marijuana metabolite during the pendency of the suit in February, March, April, May, June, August, and September 2017. The Department introduced medical records for the mother, including an emergency room visit in December 2016, when the mother was 20 weeks pregnant. The records indicated that the mother presented to the emergency department with suicidal ideation, and again in January 2017, for panic attacks, suicidal ideation with "plan of hanging," and stated that "she constantly thinks about hurting herself but does not want to die or hurt her unborn baby." The mother reported that the father engaged in "constant emotional abuse and occasional physical abuse," but she stated that "he is a good father and has never been abusive with their two sons." The mother also reported that the father has Asperger's syndrome and that he can't understand why she is stressed. The mother "begins to have panic attacks and [the father] tries to restrain her so she doesn't leave and harm herself."
A Department caseworker was the only witness to testify at the trial. She testified that the Department received a referral in January 2016, based on the mother's mental health issues, the oldest child's bruise, and the mother's positive marijuana test results when she delivered the second child. The parents agreed to work services with the Department. But in July 2016, the Department lost contact with the parents, who had left for West Virginia and did not inform the Department of their return. The second encounter with the Department occurred in December 2016, when the mother presented to the emergency room with suicidal ideation and no stable residence. The mother refused a drug test. At the time, the family residence had no water or electricity.
The caseworker opined that an adult who bangs her head against the wall and has suicidal ideation while she is pregnant needs professional help and cannot be trusted to care for very young children who are totally dependent on an adult's care. She agreed that the mother and father display a substance abuse problem with respect to marijuana, because both continued to use it even while subject to court-ordered drug testing and a parenting plan. They are habitual marijuana users, whom she described as "literally addicted." She learned that the mother and father had sold the condo and moved to a hotel before the trial, and planned to move to a new apartment later that week. She stated that the parents do not have stable housing for the children.
The caseworker agreed that the mother began working her services, but she did not complete them. The therapist indicated to the caseworker that the parents cannot complete therapy in a timely fashion because their attendance is "scattered." Therapy notes reviewed by the caseworker indicated that the children should not return home at this point because the mother had not completed therapy.
The mother has made positive changes since the inception of this lawsuit. The mother has obtained employment as a restaurant server. She has consistently visited with the children while they have been in the Department's care. The children know her and love her. She has also participated in family based services, although she has not completed them due to her "scattered" attendance.
Initially, the Department could not locate family members to take custody of the children. The mother's family resides in West Virginia, Kentucky, and Ohio, and the father's family in California. The Department placed the children in an adoptive foster home, where they appear to be happy, doing well, and receiving the care that they need. The foster family would like to adopt the children. The Department is also investigating the paternal grandparents' home in California as a suitable permanent living place for the children. The Department's counterpart in California has begun, but has not yet completed, a home study for the grandparents. The paternal grandparents are willing to adopt the children and are taking classes to prepare for parenting the children.
The trial court found for the Department and entered a judgment terminating both the mother's and father's parental rights to the three children; finding the presence of parental-termination predicates (D), (E), and (O); finding that parental-rights termination was in the children's best interest; and appointing the Department as sole managing conservator for the children.
Discussion
I. Standard of Review and Applicable Law
A parent's rights to the "companionship, care, custody, and management of his or her children" is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); accord In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). But parental rights are not absolute: "The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). The primary focus in a termination suit is protecting a child's best interest. Id.
The findings required for terminating parental rights must be supported by clear and convincing evidence. "'Clear and convincing evidence' means the measure or degree of 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." TEX. FAM. CODE § 101.007. To terminate parental rights under the Family Code, the Department must establish that the parent committed one or more of the statutorily enumerated predicate acts or omissions, and that termination is in the children's best interests. Id. at § 161.001(b)(1), (2). Only one of the enumerated predicates need be established, along with the best-interest finding, to support termination. See id.; A.V., 113 S.W.3d at 362.
The "best interest of the child" finding under Section 161.001(b)(2) of the Family Code is a separate inquiry from Section 161.001(b)(1)'s predicates. In re S.R.L., 243 S.W.3d 232, 235 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Nonetheless, evidence used to establish one or more of the predicates may be probative in determining the best interest of the child. In re E.C.R., No. 01-11-00791-CV, 2013 WL 5498127, at *2 (Tex. App.—Houston [1st Dist.] Oct. 1, 2013, no pet.) (mem. op.); In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
Determining whether termination is in the best interest of the child is guided by a non-exclusive set of factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors are: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id.; Yonko v. Dep't of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
In conducting a legal-sufficiency review in an appeal from a termination order, we examine the evidence in a light favorable to the findings and determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so and disregard all evidence that a reasonable factfinder could have disbelieved or found not to have been credible. Id. If we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. Id.
In conducting a factual-sufficiency review, we determine whether, considering the entire record, a factfinder reasonably could have formed a firm conviction or belief about the truth of the matter on which the Department bore the burden of proof. See id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. "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.
II. Father's Appeal
On appeal, the father contends that the evidence is legally and factually insufficient to support the trial court's predicate findings supporting its termination decision. He also contends that the evidence is legally and factually insufficient to support either the best-interest finding or the finding that the Department should be appointed as the children's sole managing conservator. Only one predicate need be shown, in addition to the best-interest finding, to support parental-rights termination. See TEX. FAM. CODE § 161.001(b)(1) (listing predicates using disjunctive "or"); A.V., 113 S.W.3d at 362. We conclude that clear and convincing evidence supports the trial court's finding that the father knowingly placed the children in conditions that presented physical and emotional danger. See TEX. FAM. CODE § 161.001(b)(1)(D); J.F.C., 96 S.W.3d at 266.
A. Endangerment
Section 161.001(b)(1)(D) of the Family Code provides that a trial court may terminate parental rights when the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." TEX. FAM. CODE § 161.001(b)(1)(D). To "endanger" means "to expose to loss or injury; to jeopardize," and means "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
In reviewing the evidence supporting an endangerment finding, we focus on the child's living environment and not merely the parent's conduct. In re J.D., 436 S.W.3d 105, 114 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The endangering conduct need not be directed at the child in particular, and the child need not actually suffer injury. Id. But the parent must be aware of the potential for danger to the child in the child's environment and must have disregarded that risk. Id.
The exhibits admitted at trial, including medical records, drug testing records, and the Department's affidavit, reveal home surroundings that jeopardized the children's physical and emotional well-being. See Boyd, 727 S.W.2d at 533. The children did not have stable housing. The home provided by relatives was without electricity or water for the winter months. The father and mother were not employed. The family bathed at a neighbor's home and carried back buckets of water to their own home. The family was toileting outdoors. The two oldest children were observed running outdoors without proper cold-weather clothing. The two oldest children suffered from a cough or flu for a marked period of time without either parent intervening to provide the children medical attention. The children were observed with multiple insect bites on their bodies. The home was unclean. It had no beds. The children slept on the floor near soiled diapers. While she equivocated, the mother reported to health care providers that the father had abused her during her pregnancy. The father is a habitual illegal marijuana user who did not stop using even though he knew that it placed his parental rights at risk. We hold that this evidence is legally sufficient to support the trial court's predicate finding that the father knowingly placed the children in conditions that endangered the children's physical and emotional well-being.
For his factual-sufficiency challenge, the father questions the credibility of the caseworker's testimony and faults the affidavit admitted as evidence as "unverified." We note that much of the testimony was corroborated by contemporaneous medical records and lab test results admitted into evidence. The father did not introduce any contravening evidence and did not testify. Whether and to what extent to believe the evidence admitted at trial is the factfinder's role, not our role. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009); In re S.C.F., 522 S.W.3d 693, 700 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Because the father's proposed evidence against the trial court's predicate (D) finding is not "so significant that a factfinder could not reasonably have formed a firm belief or conviction" that the father and mother knowingly endangered their children's physical well-being by the state of the home, we overrule the father's factual-sufficiency contention. See J.F.C., 96 S.W.3d at 266. We therefore need not reach the father's contentions under predicates (E) or (O). See TEX. R. APP. P. 47.1.
B. Best Interest
The father challenges the legal and factual sufficiency of the evidence supporting the trial court's best-interest determination. The trial court, however, heard evidence from which it reasonably could have developed a firm conviction that termination of the father's rights was in the children's best interest.
The father did not provide stable housing or proper clothing for the children, and their home was without electricity or water during the winter months. The home environment thus endangered the children's health, and the older children developed chronic illness. The father did not see to their medical needs when they were sick. The trial court could have rejected the father's explanations for the four-year-old child's bruises and cuts, given the circumstances surrounding discovery of them. The father's unwillingness to consistently attend Department-provided therapy suggests that he is uninterested in obtaining the skills needed to parent his three very young children, who are completely dependent on an adult for their care.
Finally, nothing in the record explains the father's consistent illegal-drug use during the pendency of this suit, when he knew that his parental rights were at risk. See S.C.F., 522 S.W.3d at 700.
The father concedes in his brief that his parents in California will provide a more appropriate home for the children than he can. The children are currently doing well in their adoptive placement, and the Department is looking at both that placement and the father's parents in California as a potential permanent home for the children. Accordingly, we hold that the evidence is legally sufficient to support the trial court's firm belief or conviction that terminating the father's rights was in the children's best interest. See J.F.C., 96 S.W.3d at 266.
The father also challenges the factual sufficiency of the evidence supporting the best-interest finding. The father did not adduce any evidence, however, to contravene the evidence presented by the Department. The father points to statements in the Department's evidence about his parenting abilities. He told the Department that both he and the mother are equally responsible for raising the children. He denied frequently spanking the children, explaining that he usually disciplines them by talking to them on their level. On the rare occasions that he did spank the children, the father stated, he used only his hand and never left any bruises. Such statements do not contravene the evidentiary basis in the record to support the trial court's conclusion that the father is incapable of parenting the children and thus termination would be in their best interest. We hold that the evidence is factually sufficient to support the trial court's best interest determination. See id.
III. Mother's Appeal
In her appeal, the mother concedes that the evidence supports a predicate finding for termination and is legally sufficient to support the trial court's best-interest finding. She contends, however, that the evidence is factually insufficient to support a finding that terminating her parental rights was in her children's best interest. She points to the progress that she has made since the inception of this suit. She has obtained employment. She has engaged in some services provided by the Department. The caseworker acknowledged that she has consistently visited the children, is bonded with them, and that the children love her. The mother also suggests permanent placement with the children's paternal grandparents as a healthy option for the children.
None of this evidence, however, overwhelms the evidence that the trial court heard to the contrary regarding the children's best interest. The mother did not testify or otherwise adduce evidence as to her ability to see to the children's daily needs if they were returned to her care. The mother did not show that she had secured stable housing. She did not controvert the Department's testimony that she had not completed therapy or the parenting classes that the family service plan required. She offered no evidence to excuse her failure to complete the court-ordered parenting classes. She continued to live with the father, whom she had accused of domestic abuse that occurred while she was pregnant. She continued habitual marijuana use, despite knowing that she would be drug-tested and that her parental rights were in jeopardy. Her continued substance abuse endangers the children's physical and emotional well-being, because it exposes the children to her risk of impairment and incarceration. In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
While it is a positive that the mother has visited with the children and bonded with them, the trial court could have determined that she was nonetheless incapable of seeing to the daily needs of three young children. The Holley factors look to whether the children would face physical or emotional danger if they were returned to the mother, and the stability of the home and the proposed placement. See Holley, 544 S.W.2d at 371-72. The trial court reasonably could have formed a firm conviction that the mother could not provide a safe and stable home life and that they would face such danger if they were returned to her. See J.F.C., 96 S.W.3d at 265-66. Finally, the possibility of placement of the children with their grandparents does not obviate the trial court's finding that placement with their mother or their father is not in the children's best interest. Accordingly, we hold that the evidence is factually sufficient to support the trial court's finding that termination is in the children's best interest.
IV. Conservatorship
The Department may be appointed sole managing conservator if both parents' parental rights have been terminated. See TEX. FAM. CODE § 161.207(a). Because we have held that the evidence is legally and factually sufficient to support the trial court's order terminating the parental rights of both parents, we affirm the order naming the Department as the sole managing conservator.
Conclusion
We affirm the order of the trial court.
Jane Bland
Justice Panel consists of Justices Keyes, Bland, and Massengale.