Opinion
No. 04-17-00746-CV
04-25-2018
In the Interest of A.C.H., a Child
MEMORANDUM OPINION
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00808
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
This is an accelerated appeal from an order terminating Father's parental rights to his child, A.C.H. Father contends the evidence is legally and factually insufficient to support the trial court's findings regarding the three statutory grounds for termination and its finding that termination of Father's parental rights is in the child's best interest. We affirm the trial court's order terminating Father's parental rights.
Although the trial court's order also terminated Mother's parental rights to A.C.H., only Father appeals the trial court's termination order. Therefore, we will discuss the trial court's order only as it pertains to Father.
BACKGROUND
On April 13, 2016, the Texas Department of Family and Protective Services ("Department") received a referral alleging Mother was medically neglecting A.C.H. and his half- brother, A.K.H. Specifically, the referral alleged Mother was giving the children Benadryl without a doctor's approval, that Mother did not seek medical care for A.C.H. when he was having difficulty breathing, and that Mother's paramour, who had been charged with sexual assault of a minor, was living with her and the children. That same day, a Department investigator contacted Mother, the paramour, and Mother's father. On April 18, 2016, Mother contacted the investigator stating she could no longer care for the children and that she was experiencing heroin withdrawal symptoms. On April 19, 2016, the Department filed a petition to terminate Mother's parental rights to the two children. Following an adversary hearing on May 2, 2016, the trial court signed a temporary order assigning the Department as temporary managing conservator of the children. On June 14, 2016, the Department filed an amended petition naming Father as a party to the suit and requesting termination of his parental rights to A.C.H. On June 16, 2016, Father signed the Department's service plan that listed the tasks Father was required to complete in order to achieve reunification with A.C.H. On June 21, 2016, the trial court found Father had reviewed and signed the Department's service plan and ordered that Father comply with and complete the service plan. On April 19, 2017, the children's foster parents filed a petition in intervention, requesting the court appoint them conservators of the children.
At the non-jury trial held on October 10, 2017, the trial court heard testimony from San Antonio Police Department Detective Robert Dart; Scott Siegel, Father's assigned therapist; Father; G.C., the foster mother of A.C.H and A.K.H.; and Department caseworker Kristin Torres.
Detective Dart testified he met Father in the course of investigating a shooting that occurred on January 1, 2017. In that incident, an individual walked out of a convenience store, entered the passenger side of a vehicle, and shot a gun in the direction of the store from the passenger window of the vehicle as the vehicle drove away from the store. Detective Dart explained Father went to the police station to give a voluntary interview, during which Father admitted he was the person who shot at the convenience store. According to Detective Dart, Father explained he shot at the convenience store because he had a confrontation with an individual inside the store and was afraid the individual was coming after him. However, Detective Dart opined Father did not have a valid claim of self-defense because video footage from the store's security camera showed Father shot from a vehicle that was leaving the store, and therefore was "in no danger whatsoever." Detective Dart testified Father's action in shooting at the store was dangerous and could have caused someone serious bodily injury.
Siegel, Father's therapist, testified Father regularly attended therapy sessions from July 2016 to January 2017, when allegations arose Father was involved in a convenience store shooting. Siegel testified he had not seen Father since January 2017, and that the criminal allegations against Father caused him concern regarding Father's decision-making ability. Siegel explained that during the time Father regularly attended therapy sessions, Father was "doing great," made "tons of progress," and was meeting his goals of improving his decision-making ability and parenting skills and being a better father. However, after the criminal allegations arose, "things just kind of fell apart." With regard to the shooting allegation, Siegel remarked that, if true, it "[was] an incredibly poor decision and lack[ed] impulse control . . . [a]nd I would be concerned for other decisions that he would make if the allegations were true." Siegel related that because Father failed to continue attending therapy sessions after the January 1 incident, Father was not positively discharged from therapy.
Father testified he has worked full-time as a painter for four years and earns $17 an hour. Father testified he has lived in his current home with his wife and their two children for six or seven months, and that his previous residence was where he had lived his entire life. Father related that his other two children are two months old and fourteen months old. Father testified that before the Department removed A.C.H. and A.K.H. from Mother's home, Mother would bring A.C.H. to Father's house every weekend and he would give Mother $150.
Regarding his services, Father explained he completed the parenting course and most therapy sessions. Father confirmed the last time he attended a therapy session was in January 2017, and testified he stopped going to therapy sessions because Siegel went on vacation and he could not get Siegel's phone number after his daughter broke his phone. Father testified he met every goal his therapist set for him, e.g., he now owns his own home and he and his wife each own their own vehicles. Father also explained he visits A.C.H. every Monday for an hour. Father related that during visits, A.C.H. recognizes Father and comes to him when he arrives, he brings the child toys, and he and A.C.H. eat snacks and play. Father testified he would like to take A.C.H. home with him that day, can provide for A.C.H. and meet all of A.C.H.'s needs, and is currently paying child support for A.C.H. Father also testified it is in both his and A.C.H.'s best interest for A.C.H. to be returned to Father.
G.C., the foster mother of A.C.H. and A.K.H., testified the children have been in her family's care for over a year and a half. G.C. explained that the children are "doing great" and "fit right in" with her family, and she, her spouse, and the children all enjoy playing sports and are "always doing things as a family together," such as going to the park, the zoo, and SeaWorld. G.C. testified she loves the children and she and her spouse are willing to provide a permanent, adoptive home for the children. G.C. related that the children refer to her parents and her spouse's parents as "grandma and grandpa," and that they attend church with the children weekly. G.C. also explained she provides a crime-free home for the children and that she and her spouse intend to raise the children "as best as [they] can and make sure that they grow up to be stable, healthy young men."
G.C. testified that if the court decided not to terminate Father's parental rights and A.C.H. were returned to Father, she would still adopt A.K.H. and would ensure that the children maintain a relationship with each other. G.C. explained she and her spouse intervened in the lawsuit when they found out A.C.H. would possibly be returned to Father because they want the children to stay together. G.C. testified she believes Father and A.C.H. are bonded to each other.
Torres, the assigned Department caseworker, explained Father's alleged participation in an altercation at a convenience store showed extremely poor judgment, and that Father should have been concerned about regaining custody of A.C.H. Torres further related that if Father "is sentenced to any type of jail time, he will not be able to parent [A.C.H.] or provide [A.C.H.] with a safe and stable lifestyle home environment." Regarding A.C.H. and his half-brother's well-being in their foster placement, Torres related that G.C. and her spouse are meeting the children's medical, emotional, and physical needs and that they are providing a drug-free, stable home environment where the children are happy, filled with love, and bonded with G.C. and her spouse. In contrast, Torres opined that at this time, Father was not capable of providing for A.C.H.'s needs or a stable lifestyle to allow A.C.H. to develop and thrive successfully.
Torres testified Father has had between 80 and 100 visits with A.C.H., the visits between Father and A.C.H. are appropriate, and Father and A.C.H. have a bond with each other. Torres explained Father's home is appropriate and that Father's wife attends Father's visits with A.C.H., during which she interacts appropriately with A.C.H. Torres related Father failed to continue attending therapy sessions after Father was arrested in January 2017. Torres explained that as of January 1, 2017, Father met the goals set for him by his therapist, and the only reason Father needed to continue therapy was because of Father's alleged criminal conduct, for which he is awaiting trial. Torres related Father admitted to her that he did shoot at the convenience store on January 1, 2017. Torres also testified Father is employed, makes an adequate amount of money, consistently pays child support for A.C.H., and completed all of his other services, including a parenting class and remaining drug-free.
During closing arguments, the children's attorney ad litem, Mother's attorney ad litem, and the foster parents' attorney joined the Department in asking that A.C.H. and A.K.H. be kept together in the foster parents' home. The trial court signed an order terminating Father's parental rights to A.C.H. Specifically, the trial court found Father (1) engaged in conduct or knowingly placed the child with persons who engaged in conduct endangering the child's physical or emotional well-being; (2) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the child's physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). The trial court also found termination of Father's parental rights to be in A.C.H.'s best interest. See id. § 161.001(b)(2). Father appeals the trial court's order terminating his parental rights.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove: (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; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'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 ANN. § 101.007.
In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court 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.F.C., 96 S.W.3d at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a 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, the court views all the evidence and determines whether a reasonable factfinder could form a firm belief or conviction that a given finding was true. See id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). The court "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266. "A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. "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.
STATUTORY TERMINATION GROUNDS
In his first and second issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding of statutory grounds for termination of his parental rights pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), and (O).
Under Subsection (O), the trial court was required to find, by clear and convincing evidence, that Father
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[.]TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
Father does not challenge that A.C.H. was removed because of abuse or neglect, or that A.C.H. was in the permanent or temporary managing conservatorship of the Department for nine months or more. Father argues the evidence supporting termination under Subsection (O) is insufficient because the only aspect of his service plan with which he failed to comply was the requirement that Father attend therapy sessions.
The record shows Father signed the Department's service plan that listed the tasks Father was required to complete in order to achieve reunification with A.C.H., and that the trial court ordered Father to comply with and complete the service plan. The service plan required Father to "actively participate in individual therapy," follow the therapist's recommendations, and be responsible for setting and keeping all appointments. Father acknowledged that he did not complete his therapy sessions, and Siegel testified that Father was not positively discharged from therapy. Although Father argues he stopped going to counseling sessions only because he wanted to avoid discussing his alleged participation in the shooting incident and thus preserve his right against self-incrimination, Subsection (O) "does not provide a means of evaluating partial or substantial compliance with a plan . . . [and] does not 'make a provision for excuses' for the parent's failure to comply with the family service plan." In re D.N., 405 S.W.3d 863, 877-78 (Tex. App.—Amarillo 2013, no pet.) (quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied)); see also In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("substantial compliance is not enough to avoid a termination finding under section 161.001[(b)(1)](O)").
Based on the undisputed testimony that Father did not complete his therapy, which was a required component of his court-ordered service plan, we conclude a reasonable trier of fact could have formed a firm belief or conviction Father "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 . . ." See § 161.001(b)(1)(O). Accordingly, we conclude the evidence is both legally and factually sufficient to support the trial court's termination finding under Subsection (O).
Having determined the evidence is legally and factually sufficient to support the trial court's finding on this statutory ground, we need not consider whether the evidence would support Subsections (D) or (E). See In re A.V., 113 S.W.3d at 362 (affirming termination based on one predicate without reaching second predicate found by factfinder and challenged by parent). We overrule Father's first and second issues.
BEST INTEREST OF THE CHILD
In his third issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in the child's best interest.
The Texas Supreme Court has enumerated the following factors to assist courts in evaluating a child's best interest: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d at 27.
"In addition to consideration of the Holley factors, [we] remain mindful that 'the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest,'" and that there is "a strong presumption that keeping a child with a parent is in the child's best interest." In Interest of R.S.-T., 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.) (quoting TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016)). We are also mindful that "'[a]lthough [a parent's] behavior may reasonably suggest that a child would be better off with a new family, the best interest standard does not permit termination merely because a child might be better off living elsewhere.'" In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (quoting In re W.C., 98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.)).
Child's Desires
At the time of trial, A.C.H. was three years old, and thus was too young to verbally express his desires. When a child is too young to express his desires, courts may assess a child's desires by considering whether the child has bonded to either the parent or the foster family and is well-cared for. See In Interest of J.K.V., 485 S.W.3d 202, 206 (Tex. App.—Texarkana 2016, no pet.); In re V.V., 349 S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Father, Torres, and G.C. all testified that Father and A.C.H. were bonded to each other. Father testified that during visits, Father and A.C.H. eat snacks and play together, and that A.C.H. recognizes and comes to him. Torres testified Father has had between 80 to 100 visits with A.C.H. and that the visits are appropriate. On the other hand, Torres testified A.C.H. had also bonded to G.C. and her spouse, and was well-cared for and happy in his foster family.
Plans for the Child
Father testified he would like to take A.C.H. home with him, and that he can provide for A.C.H. The record shows Father owns his own home where he lives with his wife and their two children, and that Father's wife interacts with A.C.H. in an appropriate manner. The record also shows that A.C.H.'s foster parents are willing to provide a permanent, adoptive home for A.C.H., where he would reside with his half-brother. G.C. testified she and her spouse intend to raise A.C.H. and his half-brother "as best as [they] can and make sure that they grow up to be stable, healthy young men."
Emotional and Physical Needs and Danger/Stability/Acts and Omissions
Both Detective Dart and Torres testified that Father admitted to them that on January 1, 2017, he participated in a violent altercation during which he fired a gun at a convenience store from a vehicle that was driving away from the store. Although Detective Dart acknowledged Father claimed he acted in self-defense, the trial court could have found Father's claim of self-defense incredible. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (factfinder is the sole judge of witnesses' credibility and the weight to give their testimony, and may believe one witness and disbelieve another). Father's decision to engage in violent, criminal conduct by shooting at a convenience store demonstrates Father lacks good judgment and is unable to provide A.C.H. with a safe environment. See TEX. FAM. CODE ANN. § 263.307(b)(7) (in determining whether a parent can provide child with a safe environment, courts should consider "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"). Additionally, Father's violent, criminal conduct represents a danger to A.C.H.'s physical and emotional well-being because it exposes Father to incarceration. See In Interest of M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.) ("[W]hen a parent is incarcerated, he or she is absent from the child's daily life and unable to provide support to the child, negatively impacting the child's living environment and emotional well-being.")
Although Father's testimony that he can provide for A.C.H. and meet all of A.C.H.'s needs conflicts with Torres's testimony that Father is not capable of providing for A.C.H.'s needs or a stable lifestyle to allow A.C.H. to develop and thrive successfully, the trial court, in light of the uncontroverted testimony regarding Father's violent, criminal behavior, could have reasonably resolved this conflict against Father. See In re J.F.C., 96 S.W.3d at 266 (reviewing courts must consider whether factfinder could reasonably resolve conflicts in evidence in favor of the finding). There was undisputed testimony that Father consistently provided financial support for A.C.H. throughout the pendency of the case; that Father has had stable, long-term employment; that Father had between 80 to 100 visits with A.C.H.; that the visits were appropriate; and that, other than therapy, Father completed all of the services required of him by the Department, including a parenting class and remaining drug-free. We recognize that this undisputed evidence weighs against termination of Father's parental rights. However, the trial court reasonably could have found that this evidence was outweighed by Father's participation in a violent altercation in which Father shot a gun at a convenience store. See id.
The trial court heard testimony that G.C. and her spouse are meeting A.C.H.'s medical, emotional, and physical needs and providing a drug-free, crime-free, and stable home environment. G.C. testified she, her spouse, and the children are "always doing things as a family together." Moreover, A.C.H.'s attorney ad litem and Mother's attorney ad litem both requested that A.C.H. stay with the foster family, which plans to adopt both A.C.H. and his younger brother.
Viewing the evidence in the light most favorable to the trial court's finding, we conclude the trial court could reasonably have formed a firm belief or conviction that termination of Father's parental rights to A.C.H. is in A.C.H.'s best interest. Likewise, viewing all the evidence, including any disputed or conflicting evidence, we conclude the trial court could reasonably have formed the same firm belief or conviction. Accordingly, the evidence is both legally and factually sufficient to support the trial court's best interest finding. We overrule Father's third issue.
CONCLUSION
For the foregoing reasons, we affirm the trial court's order terminating Father's parental rights.
Irene Rios, Justice