Opinion
04-24-00109-CV
07-31-2024
IN THE INTEREST OF A.E.R., Jr., a Child
From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-21-238-1 Honorable Jose Luis Garza, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
REBECA C. MARTINEZ, CHIEF JUSTICE
Appellant ("Mother") appeals from the trial court's order terminating her parental rights to her child, A.E.R., Jr. In her first issue, Mother challenges the sufficiency of the evidence to support the trial court's finding that termination is in A.E.R.'s best interest. In two additional issues, Mother raises constitutional challenges related to A.E.R.'s removal from her care and to trial proceedings. We overrule Mother's issues and affirm.
To protect the identities of the minors A.E.R., Jr. and his half-brother G.R.S., we refer to A.E.R., Jr. by his initials as "A.E.R.," to A.E.R.'s parents as "Mother" and "Father," and to G.R.S. by his initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
On June 11, 2021, the Texas Department of Family and Protective Services (the "Department") filed a petition to terminate Mother's parental rights to A.E.R. and his half-brother G.R.S. The associate judge held a bench trial beginning on November 7, 2022, after the trial court had referred the case to him. At that time, A.E.R. was eleven and G.R.S. was two years old. Trial concluded on May 17, 2023, after several hearings and recesses. Following trial, the associate judge signed an order severing the case involving A.E.R. Thereafter, the associate judge signed an order in the severed case, terminating Mother's parental rights to A.E.R, finding five statutory grounds for termination: that Mother (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered his physical and emotional well-being; (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered his physical and emotional well-being; (3) had been convicted or placed on community supervision for being criminally responsible for the death or serious injury of a child under section 22.01 of the Texas Penal Code for assault; (4) constructively abandoned the child; and (5) failed to comply with the provisions of a court order that established the actions necessary for her to obtain the return of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (L)(v), (N), (O); see also Tex. Penal Code Ann. § 22.01. The associate judge also found that termination was in A.E.R.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). Additionally, A.E.R.'s paternal grandmother ("Grandmother") was designated as A.E.R.'s permanent managing conservator, and A.E.R.'s father ("Father") was designated as A.E.R.'s possessory conservator.
The associate judge also signed an order in the original cause number terminating Mother's parental rights to G.R.S. That order is the subject of the related appeal, Cause No. 04-24-00108-CV.
Thereafter, Mother filed a request for a de novo hearing before the trial court. See id. § 201.015. The trial court considered the record before the associate judge. See id. § 201.015(c) (authorizing referring court to consider record from hearing before associate judge). No additional evidence was presented at the trial de novo. On February 7, 2024, the trial court signed an order terminating Mother's parental rights, finding the same predicate grounds as the associate judge and that termination was in A.E.R.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (L)(v), (N), (O), (b)(2). Additionally, the trial court appointed Grandmother as A.E.R.'s permanent managing conservator and Father as his possessory conservator.
Mother timely appealed from the trial court's order, challenging the legal and factual sufficiency of its best-interest finding. Additionally, Mother contends that A.E.R. was removed from her care in violation of the United States and Texas constitutions, and she contends that she was denied her constitutional right to confront the witness against her when A.E.R. was questioned by the associate judge without allowing an opportunity for Mother's attorney to cross-examine him. We consider first the best-interest finding and then Mother's constitutional challenges.
Best Interest
Standard of Review and Applicable Law
A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in the child's best interest. See id. § 161.001(b)(1), (2). 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.
We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). In reviewing the legal sufficiency of the evidence, 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." Id. 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. In reviewing the factual sufficiency of the evidence, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." 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.
There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, it is equally presumed that "the 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 child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Texas Family Code section 263.307(b). See id. § 263.307(b).
Our best-interest analysis is guided by consideration of the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. See id.; accord In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). The Department is not required to prove each factor, and the absence of evidence regarding some of the factors does not preclude the factfinder from reasonably forming a strong conviction that termination is in a child's best interest, particularly if the evidence is undisputed that the parent-child relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Our concern is whether the evidence, as a whole, is sufficient for the trial court to have formed a strong conviction or belief that termination of the parent-child relationship is in the best interest of the child. Id.
Discussion
Mother contends that the trial court's best-interest finding is conclusory. A.E.R., his guardian ad litem, and eight witnesses testified at trial. Additionally, copies of an indictment and a judgment entered against Mother for the assault of A.E.R were admitted into evidence. We hold this evidence is legally and factually sufficient to support the trial court's best-interest finding. We summarize testimony from the Department's investigator to give background and then discuss pertinent trial evidence in connection with the Holley factors. Cf. In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) (recognizing appellate court need not detail all evidence if affirming termination judgment).
1. Factual Background
The Department's investigator testified that, in June 2021, she received a report of Mother's physical abuse of A.E.R. and G.R.S. At that time A.E.R. was ten and G.R.S. was one. The investigator went to Mother's home, knocked numerous times, and waited forty-five minutes to an hour for Mother to open the door. After opening the door, Mother stated that her delay was due to her drinking the night before.
Mother stated that she was the sole caretaker of the children. She admitted to smoking marijuana on a daily basis, but she denied physically harming the children. The investigator noticed red "finger markings" around G.R.S.'s rib cage, and asked Mother if she would be willing to take the children to the pediatrician for an examination. Mother agreed. Before leaving for the doctor's office, the investigator had an opportunity to interview A.E.R. privately, and A.E.R. denied the allegations against Mother.
At the doctor's office, a nurse practitioner examined the children. The markings that the investigator had seen on G.R.S. were no longer visible. When A.E.R. was examined, he displayed numerous bruises of different colors and at different stages of healing. He also had bite marks on his back, arm, and stomach. A.E.R. initially blamed his cousin for the bruises; however, according to the investigator, he later stated: "Okay, I just want to be safe, I don't want to get into trouble, I don't want my mom to get into trouble." At that point, Mother started yelling that A.E.R. was lying, and she had to be escorted from the building. A.E.R. then made an outcry to the investigator and nurse practitioner. A.E.R. stated that Mother hit him on several occasions with a metal rod from a portable closet as a form of discipline. He also stated that Mother would bite and kick him. Additionally, A.E.R.'s fingers exhibited small bruises. A.E.R. explained that these bruises resulted from when he would curl up in a corner to protect himself from Mother's assaults. That evening or the next morning, A.E.R. was interviewed at a children's advocacy center. He repeated his outcry and added that Mother would become very mad if she could not find her marijuana, which A.E.R. would hide to protect G.R.S.
The investigator further testified that Mother had previously been subject to two investigations - one for neglectful supervision and the other for physical abuse of A.E.R. The allegations were "rule[d] out," and the investigations closed.
After the doctor's visit, the children were removed from Mother's care. A.E.R. was placed with his paternal Grandmother, and G.R.S. was placed with a maternal aunt and later in a foster home.
2. Desires of the Child
The first Holley factor weighs in favor of termination. The testimony establishes that A.E.R. consistently and unequivocally stated his wish to remain with Grandmother and to have no further relationship with Mother. Evidence of A.E.R.'s desires was given through testimony from his therapist, Grandmother, the Department's caseworker, the Department's monitor of parent-child visits, A.E.R.'s guardian ad litem, and A.E.R. himself. The associate judge interviewed A.E.R. in chambers. See Tex. Fam. Code Ann. § 153.009 (allowing in-chamber's interviews of child to determine child's wishes as to conservatorship and possession). A.E.R. stated that he wanted to stay with Grandmother and that he did not want to visit Mother or attend therapy with her. The Department's monitor of parent-child visits testified that she asked A.E.R. directly or through his Grandmother at least ten times if A.E.R. wished to have visits with Mother and that A.E.R. consistently expressed his desire not to have visits.
Mother contends on appeal that the Department should have made a better attempt to reunify Mother and A.E.R. by offering family therapy and in-person visits between Mother and A.E.R.; however, A.E.R. rejected both therapy and visits with Mother. Further evidence suggests that forced interaction between A.E.R. and Mother may have been harmful to A.E.R.'s mental and emotional health. A.E.R. told his therapist that he was fearful of Mother. Grandmother testified that, when A.E.R. came into her care, he was nervous, would cry a lot, and would have nightmares. By the time of trial, according to Grandmother, A.E.R. was less nervous and no longer had nightmares. Further, according to Grandmother, A.E.R. told her many times that he hated Mother and once that he wished Mother would "lose her mind so that she would not remember [him and G.R.S.]."
3. Emotional and Physical Needs of the Child Now and in the Future and the Emotional and Physical Danger to the Child Now and in the Future
The second and third Holley factors also favor termination. In addition to Grandmother's testimony just discussed, other testimony suggests that A.E.R. entered into his Grandmother's care under emotional distress. The Department's caseworker testified that, when A.E.R. first came into Grandmother's care, he was very scared at night and would sleep in a fetal position. A.E.R. explained to the caseworker that he became accustomed to sleeping in this position to protect himself in case Mother tried to hit him.
Credible evidence also suggests that Mother physically abused A.E.R. As described by the investigator, A.E.R. made an outcry that Mother caused his bruises and bitemarks. The investigator testified that A.E.R. displayed bruises and bitemarks all over his body in various colors and at various stages of healing before his removal from Mother. Grandmother testified that A.E.R. had not received additional bruises under Grandmother's care. As established by the indictment and judgment entered into evidence, Mother pled guilty to assault based on these injuries to A.E.R.
On appeal, Mother contends that the case began due to "an isolated event that happened to A.E.R." and that it was not proven that Mother harmed A.E.R. Mother testified that she pled guilty to assault so that she could be released from incarceration to complete court-ordered services to obtain the return of her children. She highlights testimony that A.E.R. wrongly accused her of a previous injury caused by his cousin and testimony that A.E.R.'s initial statement to the investigator was that his cousin caused his bruises. However, it was the trial court's province to resolve fact disputes. See In re J.F.C., 96 S.W.3d at 266; see also In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). A.E.R. recanted his initial statement to the investigator, and his later outcry was consistent with his bruises. In contrast, no evidence was introduced to explain how A.E.R.'s cousin could have caused such extensive injuries. The evidence, moreover, strongly suggests that A.E.R. was not injured in "an isolated event." At his examination by the nurse practitioner, he displayed bruises of different colors and at different stages of healing. On this record, the trial court, as factfinder, was free to credit A.E.R.'s outcry against Mother and disbelieve Mother's denial. See In re J.F.C., 96 S.W.3d at 266; see also In re S.M.T., No. 13-17-00064-CV, 2017 WL 3084300, at *8 (Tex. App.-Corpus Christi July 20, 2017, pet. denied) (mem. op.) (holding jury was free to credit child's outcries, described in testimony from Department's investigator and child's counselor, and disbelieve father's denial).
Evidence that Mother physically harmed A.E.R. and caused him trauma while A.E.R. was in her care reasonably suggest that she would endanger A.E.R. physically and mentally in the future if the parent-child relationship continued. 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 . . . ."); see also Tex. Fam. Code Ann. § 263.307(b)(7) (providing history of abusive or assaultive conduct by the child's family is relevant to best-interest determination). Further, A.E.R.'s lack of new bruises and his improvement in sleep and nervousness since entering into Grandmother's care reasonably suggest that his future physical and emotional needs are furthered by severing the parent-child relationship. Cf. Tex. Fam. Code Ann. § 263.307(b)(5) (providing courts may consider whether child is fearful of returning to child's home in determining whether parent is willing and able to provide child with safe environment).
4. Parenting Abilities and Services Available
The fourth Holley factor concerns the parental abilities of the individuals seeking custody, and the fifth Holley factor concerns the programs available to assist those individuals to promote the child's best interest. See Holley, 544 S.W.2d at 372.
The Department's caseworker testified that Mother tested positive for cocaine in March 2022. Further, she testified that Mother failed to attend most of her drug tests and that her drug assessment concluded that Mother had "severe cocaine disorder abuse." The Department's monitor of parent-child visits testified that Mother again tested positive for cocaine in December 2022 and January 2023. The Department's investigator testified that Mother did not initially answer her door during the investigation and that Mother gave as an explanation that she had been drinking the night before. Testimony regarding Mother's substance abuse, including during the course of the case, strongly suggests Mother's poor judgment and lack of parenting skills. See In re E.C., No. 02-20-00022-CV, 2020 WL 2071755, at *7 (Tex. App.-Fort Worth Apr. 30, 2020, no pet.) (mem. op.) ("A child's emotional well-being can be negatively affected when a parent repeatedly commits criminal acts that subject the parent to incarceration, resulting in the parent's absence from the child's life and the inability to provide support, and thus creating an emotional vacuum in the child's life and subjecting the child to ongoing uncertainty regarding who will take care of him."); In re T.N.J.J., No. 04-19-00228-CV, 2019 WL 6333470, at *5 (Tex. App.-San Antonio Nov. 27, 2019, no pet.) (noting father's drug use and failures to submit to drug testing and treatment were relevant to multiple Holley factors, including the emotional and physical needs of the children, the emotional and physical danger to the children, father's parental abilities, and stability of father's home).
Moreover, according to the caseworker, Mother only began pursuing her court-ordered services, including substance abuse treatment and individual therapy, in March 2023, which was over a year and a half after the children were removed. See In re J.M.T., 519 S.W.3d at 270 ("A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of his child that he does not have the ability to motivate himself to seek out available resources needed now or in the future."); see also Tex. Fam. Code Ann. § 263.307(b)(10), (11) (providing courts may consider willingness and ability of child's family to seek out, accept, and complete counseling services and willingness and ability of child's family to effect positive environmental and personal changes within a reasonable period of time).
On appeal, Mother highlights the lack of testimony regarding Grandmother's parenting skills. However, the record reflects both positive outcomes for A.E.R. while in Grandmother's care and Grandmother's willingness to correct parenting issues identified by the Department. The Department's caseworker testified that A.E.R. was doing well at the time of trial and was getting good grades in school. Grandmother confirmed this assessment, adding that A.E.R.'s grades had improved since he entered into her care and that he was in advanced classes. In Grandmother's care, Father has been a part of A.E.R.'s life. According to the caseworker, Father and A.E.R. have a good bond, and Father is very involved with the child. Unfortunately, Father has been arrested multiple times for crimes, including drug possession and driving while intoxicated. Father is allowed only monitored visits with A.E.R. On one occasion, Grandmother allowed A.E.R. to ride with Father on a motorcycle. Grandmother testified that this occurred only once and before she had custody of A.E.R. She testified that she knows Father's visits must be monitored and that she is always present when A.E.R. is with Father.
5. Stability of the Home or Proposed Placement
At the time of trial, Mother lived with her mother and sister. According to the Department's caseworker, the home study on the residence was unfavorable due to criminal history and for not being set up for children. In contrast, the caseworker had no concerns with A.E.R.'s placement with Grandmother, and Grandmother was willing to care for A.E.R. long-term. Additionally, according to Grandmother, A.E.R. loves G.R.S. and wants to continue his sibling relationship. G.R.S.'s foster mother testified that Grandmother is a friend, who asked her to become a foster mother to G.R.S., so that the boys could stay near each other. G.R.S.'s foster mother testified that A.E.R. and G.R.S. play together often and that they would continue to do so if the foster mother adopted G.R.S., as she wished to.
6. Any Excuse for the Acts or Omissions of the Parent
Mother gave no excuse for A.E.R.'s injuries, and she denied causing them. As discussed, the trial court reasonably could have disbelieved her.
7. Best-Interest Conclusion
Viewing all of the evidence in the light most favorable to the trial court's best-interest finding and applying the Holley factors, we conclude that the trial court could have formed a firm belief or conviction that termination of Mother's parental rights was in A.E.R.'s best interest. See In re J.F.C., 96 S.W.3d at 266. We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court's best-interest finding or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in A.E.R.'s best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding, and we overrule Mother's first issue. See Tex. Fam. Code Ann. § 161.001(b)(2).
Constitutional Issues
Mother asserts two constitutional issues. By her second issue, Mother asserts the trial court reversibly erred by removing A.E.R. without sufficient cause, in violation of the Fourth Amendment to the United States Constitution and article 1, sections 9, 13, and 19 of the Texas Constitution. See U.S. Const. amend. 4; Tex. Const. art. 1, §§ 9, 13, 19.
Without reaching the merits, we overrule Mother's second issue as moot. A.E.R. was removed from Mother's care without a court order, pursuant to Texas Family Code section 262.104. See Tex. Fam. Code Ann. § 262.104 (authorizing Department to remove child without court order under certain conditions). A.E.R.'s removal was thereafter authorized by an "Order for Protection of a Child in an Emergency and Notice of Hearing," and later by a "Temporary Order Following Adversary Hearing." These orders were entered pursuant to procedures laid out in the Family Code. See id. §§ 262.105-.107, 262.201. Mother did not challenge either order by a writ of mandamus. Cf. In re E.C.R., 402 S.W.3d at 248, 248 n.8 (noting mother did not challenge findings made by trial court after child was taken without a court order and citing cases holding that mandamus review of temporary orders is allowed because temporary orders are not subject to interlocutory appeal). Ultimately, the trial court entered its final order terminating Mother's parental rights to A.E.R. "As this court and others have held, a temporary order is superseded by entry of a final order of termination, rendering moot any complaint about the temporary order." In re A.K., 487 S.W.3d 679, 683 (Tex. App.-San Antonio 2016, no pet.); see also Tex. Fam. Code Ann. § 262.204(a) ("A temporary order rendered under this chapter is valid and enforceable until properly superseded by a court with jurisdiction to do so."); In re Z.R.M., No. 04-14-00063-CV, 2015 WL 4116049, at *5-6 n.5 (Tex. App.-San Antonio July 8, 2015, no pet.) (mem. op.) (holding complaints about child's initial emergency removal were not proper in context of appeal from final termination order). Because a final order has now been entered, Mother's complaint regarding A.E.R.'s removal, as authorized by the temporary orders, is moot. See In re A.K., 487 S.W.3d at 683; see also L.F. v. Dep't of Family & Prot. Servs., No. 01-10-01148-CV, 2012 WL 1564547, at *14 (Tex. App.-Houston [1st Dist.] May 3, 2012, pet. denied) (holding issue concerning child's emergency removal was moot after trial court had rendered final order terminating parental rights).
By her third issue, Mother cites the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article 1, sections 13 and 19 of the Texas Constitution to contend that she was denied her right to confront a witness against her when her attorney was not given an opportunity to cross-examine A.E.R. See U.S. Const. amend. 5, 6, 14; Tex. Const. art. 1, §§ 13, 19. We overrule Mother's issue because she failed to preserve it by presenting her complaint to the trial court. See Tex. R. App. P. 33.1(a) (requiring, for preservation of complaint for appellate review, that appellant must present to trial court timely request, objection, or motion stating specific grounds for complaint). Nor has Mother argued or established a valid basis to excuse the error-preservation requirement. Consequently, we overrule Mother's third issue for her failure to raise it before the trial court. See id.; see also In re L.M.I., 119 S.W.3d 707, 709 (Tex. 2003) (overruling father's due-process complaint regarding failure to translate affidavit of relinquishment because complaint was not preserved); In re T.H., No. 2-07-464-CV, 2008 WL 4831374, at *8 (Tex. App.-Fort Worth Nov. 6, 2008, no pet.) (holding father failed to preserve complaint that proceeding to trial in his absence violated his constitutional rights).
Conclusion
We affirm the trial court's order of termination.