Opinion
No. 04-16-00008-CV
07-06-2016
IN THE INTEREST OF A.F., a Child
MEMORANDUM OPINION
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01172
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Jason Pulliam, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
INTRODUCTION
Elizabeth F. appeals the trial court's order terminating her parental rights to her son, A.F. In her sole issue on appeal, Elizabeth asserts the evidence is legally and factually insufficient to support the trial court's finding that termination is in A.F's best interest. We affirm the trial court's judgment.
To protect the identity of minor children, we refer to the child by his initials and his mother as Elizabeth. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). Although the trial court terminated both parents' parental rights, Elizabeth is the only parent to appeal the trial court's judgment. Therefore, this court will only discuss the trial court's judgment as it pertains to her. --------
PROCEDURAL HISTORY
This case began with a referral to the Department of Family and Protective Services ("the Department") based upon a report of physical neglect of A.F. At that time, Elizabeth had turned herself in to serve a jail term for a probation violation based upon an outstanding arrest warrant; however, Elizabeth did not have a plan for the care of A.F. Elizabeth was homeless and did not have the support of family members who would care for A.F., so she left A.F. with a friend who could not care for him. The friend called the Department. When the Department received custody of A.F., he was seven months old, and he had bronchitis and a diaper rash.
Upon investigation, the Department discovered Elizabeth had an extensive criminal record for theft and prostitution, a history of drug use and a history with the Department which included a child's death in 2008 in an open case, cases opened in 2009, 2010, and the involuntary removal and termination of parental rights of two children in 2011.
On May 19, 2014, the Department filed a petition for protection of a child, for conservatorship, and for termination of parental rights. Following a hearing on May 28, 2014, the Department was designated A.F.'s temporary managing conservator. Elizabeth was designated temporary possessory conservator and allowed supervised visitation of A.F. twice monthly. The court designated a service plan, under which Elizabeth was required to pay child support and engage in counseling, parenting classes, visitation and drug testing.
Elizabeth was released from jail on July 13, 2014, into Grace House. The trial court held several hearings, during which the goal of the service plan was reunification. Elizabeth was eventually granted unsupervised visitation. In 2015, the Department changed the service plan goal to termination of parental rights due to Elizabeth's failure to complete the service plan goal and upon learning Elizabeth was absent from work and had spent time with an uncle with a criminal record for sexual abuse of a child and had allowed A.F. to be around this uncle on several unsupervised visits. Trial was held on November 3 and 6, 2015, at which time A.F. was two years old.
Following presentation of evidence, the trial court terminated Elizabeth's parental rights and named the Department permanent managing conservatorship. The trial court found Elizabeth: (1) knowingly allowed A.F. to remain in conditions or surroundings which endanger his physical and emotional well-being, pursuant to Family Code § 161.001(1)(D); (2) failed to comply with the court-ordered family service plan, pursuant to Family Code § 161.001(1)(O). See TEX. FAM. CODE ANN. § 161.001(1)(D) and (O) (West Supp. 2015). The trial court also found termination of Elizabeth's parental rights was in the best interest of A.F. See TEX. FAM. CODE ANN. § 161.001(2). Elizabeth filed this appeal.
ANALYSIS
Elizabeth complains the evidence is legally and factually insufficient to support the trial court's finding that termination was in A.F's best interest.
Standard of Review
To terminate parental rights pursuant to Section 161.001 of the Family Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1); and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(1), (2); In the Interest of A.V., 113 S.W.3d 355, 362 (Tex. 2003). Both elements must be established, and termination may not be based solely on the best interest of the child. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Because a parent's right to the companionship, care, custody, and management of children is a constitutional interest "far more precious than any property right a judgment terminating parental rights must be supported by clear and convincing evidence." TEX. FAM. CODE ANN. § 161.206(a) (West 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see also In the Interest of J.F.C., 96 S.W.3d 256, 273 (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 (West 2014). Due process demands this heightened standard because termination results in permanent, irrevocable changes for the parent and child. In the Interest of J.F.C., 96 S.W.3d at 263; see In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and modification of conservatorship order).
Consequently, termination proceedings must be strictly scrutinized, and "involuntary termination statutes are strictly construed in favor of the parent." Holick, 685 S.W.2d at 20. To determine if the heightened burden of proof was met, an appellate court must employ a heightened standard of review—judging whether a "factfinder could reasonably form a firm belief or conviction about the truth of the [Department's] allegations." In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002). This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role. Id. at 26. An appellate court must not reweigh issues of witness credibility but "'must defer to the [factfinder's] determinations so long as those determinations are not themselves unreasonable.'" In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)).
Sufficiency of the Evidence Review
Under the strict scrutiny implicit in termination cases and the necessity of clear and convincing evidence, the traditional legal and factual standards of review are inadequate. In the Interest of J.F.C., 96 S.W.3d at 264-66. Instead, in conducting a legal sufficiency review of termination of parental rights, an appellate court must view all of the evidence in the light most favorable to the finding and determine whether a reasonable factfinder could have formed a firm belief or conviction that its ultimate findings are true. See id. at 266. In viewing the evidence in the light most favorable to the judgment, the appellate court "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. However, the appellate court may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the Department's heightened burden of proof by clear and convincing evidence. Id. If, after conducting its legal-sufficiency review of all the evidence, a court determines no reasonable factfinder could form a firm belief or conviction consistent with the final judgment, then the court must conclude the evidence is legally insufficient. Id.
When reviewing a factual sufficiency challenge, the analysis is somewhat different in that the appellate court must consider all of the evidence equally, both disputed and undisputed. In the Interest of J.F.C., 96 S.W.3d at 266. The appellate court must determine whether the disputed evidence is such that a reasonable fact finder could have formed a firm conviction or belief about the truth of the Department's allegations. Id. In doing so, the appellate court must assume 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. Id. Finally, in its analysis of this evidence the appellate court should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. The appellate 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 its finding. Id.; In the Interest of A.S., 261 S.W.3d 76, 82 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Best Interest Finding
There is a strong presumption that keeping a child with a parent is in the child's best interest. In the Interest of R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE § 263.307(a) (West Supp. 2015). In determining whether a child's parent is willing and able to provide the child with a safe environment, the court should consider: (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 or other agency; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id. at § 263.307(b).
Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (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 that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. In analyzing these factors, we focus on the best interest of the child, not the best interest of the parent. In the Interest of D.M., 452 S.W.3d 462, 470 (Tex. App.—San Antonio 2014, no pet.); Dupree v. Tex. Dept. of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ).
Finally, evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child's best interest. In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(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. In the Interest of 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 her past conduct and may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent. Id.; In the Interest of B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied).
The Evidence
To establish basis for termination and the best-interest finding, the Department relied upon the testimony of three witnesses: Elizabeth's court-ordered counselor, Dolores Mower; the Department's caseworker Raquel Escobar, and; Elizabeth. The Department also relied upon the reports and affidavits from the underlying hearings and proceedings. Elizabeth also presented one witness to testify on her behalf, Ray Torres, the pastor of the church which ran the group home in which she lived at that time.
The affidavit from Richard Moore, the caseworker who received the original referral on A.F. and conducted the investigation attests to Elizabeth's history with the Department. Moore attests the first referral involving Elizabeth occurred with her first child in August 2008, when she was approximately 16 years old. This referral alleged neglectful supervision because Elizabeth did not seem coherent or know what was happening with her infant. The allegations were ruled out; however, the case on this child remained open. On October 6, 2008, the Department received another referral for neglectful supervision. This referral alleged Elizabeth left her infant in its crib with a blanket over it while she attended school. The adults in the home were using drugs and were bipolar and did not attend to the baby, and the baby died. These allegations were ruled out, however, and the investigation revealed the infant did not die due to abuse or neglect.
Moore attests the Department received another referral of neglectful supervision, medical neglect and sexual abuse of her child, C.S., on October 6, 2009. This allegation asserted the home was unsanitary, Elizabeth was using heroin, refused to seek needed medical care of C.S., and he was being sexually abused by three named individuals. The allegations were ruled out after Elizabeth moved from the home, took C.S. to the doctor and could not be located for drug testing.
The Department received three similar referrals on April 1, 2010, September 12, 2010, and October 31, 2010, based upon neglectful supervision due to Elizabeth's drug use and failure to seek appropriate supervision for her children C.S. and D.S. The children were removed from the home on January 11, 2011, and were adopted by a family member on December 20, 2011, after Elizabeth failed to complete the family service plan and could not be located.
Elizabeth testified that at the time of trial, she lived in the Deborah House, a voluntary group home run by Sold Out Believer's Church. She testified she had completed the requirements of the court family service plan, had discontinued drug use, and had made improvements to her lifestyle following her release from jail. Elizabeth stated she was motivated to be reunited with A.F. because she "wanted to be happy" and she "wanted to be there for him".
Elizabeth testified regarding her previous history with the Department. She stated she voluntarily relinquished her parental rights in 2011; however, upon pressing acknowledged that her rights were terminated.
Elizabeth testified she discovered a few days prior to trial that she was pregnant; however, she was unable to identify the father with certainty, as it could be one of three men. Elizabeth was only able to estimate the length of her pregnancy as "two or three months" and had not been to the doctor. While she lived at the Deborah House, Elizabeth engaged in a sexual relationship with the son of the Director and referred to this man as her fiancé; however, she testified this man was not one of the three potential fathers. This relationship dissolved during the pendency of trial. Elizabeth also testified that she had engaged in prostitution while she was pregnant with A.F. In addition, the Department's caseworker had offered to help her obtain birth control; however, she had declined the help.
Elizabeth testified that during three separate unsupervised visits with A.F., she had allowed her uncle, a registered sex offender, to be around A.F. While she admitted this was not a good decision, Elizabeth stated her uncle was the only family member that supported her. Elizabeth stated she was not employed because the Deborah House would not provide transportation for her, she had not sought employment for some time, and had no savings.
In viewing this testimony in the light most favorable to the trial court's best-interest finding Elizabeth's testimony established the trial court could reasonably have formed a firm conviction that Elizabeth has a desire to be reunited, but is not able to provide for A.F.'s emotional and physical needs and demonstrates an inability to protect A.F. from emotional and physical danger. In addition, this is evidence demonstrative of the factors that Elizabeth does not have the ability to provide a stable home environment or the ability or desire to gain stable employment to care for A.F.
Raquel Escobar testified that termination of Elizabeth's parental rights was in the best interest of A.F. Elizabeth had substantially complied with the family service plan by attending the court-ordered parenting classes and some counseling and had passed the drug tests; however, Elizabeth failed to exhibit the skills necessary to show she was capable of caring for or parenting A.F. on a long-term or permanent basis. Escobar testified that, even if given more time or instruction, Elizabeth would not be able to parent A.F. While Elizabeth did show improvement in her lifestyle, she failed to show necessary improvement in her decision-making capability and failed to show ability to exercise good judgment or to apply the lessons of the parenting classes or to comprehend what was required to parent a child. Escobar testified Elizabeth had an impaired capacity and lack of understanding or ability to comprehend the effect of her decisions on others, particularly A.F. Finally, Elizabeth exhibited an inability to accept responsibility for her actions, particularly the death and removal of her other children.
In support of these conclusions, Escobar testified that the most significant factor demonstrating an inability to exhibit good judgment or make good decisions to protect and care for A.F. was that Elizabeth allowed her uncle, a registered sex offender, to be around A.F. on three unsupervised visits. Elizabeth had also skipped work to be with this uncle and had been untruthful to her counselor, to the pastor of Sold Out Believer's Church and to Escobar about her time spent with this uncle, about his criminal record and about allowing him access to A.F.
Escobar testified Elizabeth was not able to maintain stable employment and continued to engage in dangerous sexual activity. As part of the requirements of residence with Sold Out Believer's Church, Elizabeth began work at the AT&T Center and convention center. However, she engaged in sexual activity with two different bosses during the course of this employment and was, therefore, removed. Elizabeth failed to seek other employment and blamed her circumstances on others.
Escobar testified that Elizabeth's current pregnancy and dangerous sexual activity exemplified an inability to follow the guidelines of her program and to exercise good judgment. This continued activity during her consideration for reunification and while she engaged in counseling and parenting classes exemplified a lack of sincerity, inability to apply the lessons, and failure to comprehend the consequences of her actions.
Escobar testified Elizabeth could not offer a stable home environment for A.F. As a condition of her probation upon release from jail, Elizabeth was originally placed at the Grace House. Following this placement, Escobar found her residence at the voluntary group home run by Sold Out Believer's, where Elizabeth lived at the time of trial. This group home was a three-bedroom home shared with three other women. Although there is no time limit on how long Elizabeth can stay at the home, the home provides temporary housing for women. While Elizabeth knew the other women in the home at the time of trial had a history of drug use and other criminal activity, she had not inquired whether it would be appropriate to have A.F. in their presence and had not requested a home study or permission from the Department to determine whether she could house A.F. in this environment.
Escobar testified A.F. was placed with a foster family that was willing to adopt him. A.F. was healthy and thriving with the foster family and had a strong bond with them.
In viewing this testimony in the light most favorable to the trial court's best-interest finding Escobar's testimony established the trial court could reasonably have formed a firm conviction that Elizabeth is not able to provide for A.F.'s emotional and physical needs now and in the future. Based upon this testimony, and in light of her historic inability to meet A.F.'s and her other three children's physical and emotional needs due to her drug use, criminal activity and incarcerations, inference can be made Elizabeth will not be able to meet A.F.'s physical and emotional needs in the future. See In the Interest of J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet). The trial court could reasonably have formed a firm conviction that there is risk of emotional and physical danger to A.F. should he be placed in Elizabeth's care, Elizabeth failed to exhibit parental abilities at the time of trial or in the foreseeable future. In addition, Elizabeth could not provide a stable and healthy home environment, as the home in which she lived is transient in nature.
Ms. Mower testified she counseled Elizabeth every two weeks from May to September 2015 as part of Elizabeth's service plan. The goal for this phase of counseling was to help Elizabeth understand "the importance of keeping her children safe, herself safe, and providing what she needed to do to take care of herself and get herself stabilized so that she can be on her own." Mower testified that at the conclusion of their sessions Elizabeth "has learned the importance of coping with the situations", "was able to make better decisions with taking care of herself", and "learned the importance of being self-sufficient and being able to get a job".
Mower further testified that she did not recommend reunification with A.F. "because I did not see her as being really capable of doing everything that she needed to do as a parent." Mower recommended that Elizabeth needed additional parenting classes with monitoring and instruction upon visitation of A.F. if she would ever be able to learn how to parent and to understand what to do. Mower testified that although Elizabeth made progress, she was still not capable of parenting, and Mower would be "uncomfortable and afraid" for A.F. to be placed with Elizabeth. Finally, Mower testified, "I think she has really—a really difficult time in making good decisions and there could be some possibility that she has a limited capability of even knowing when she's doing right..." and Elizabeth was incapable of making independent decisions and displayed an inability to take care of her own daily needs and the emotional and physical needs of a child.
Mower testified that she learned during trial that Elizabeth had not been truthful regarding her drug use, relationships with men at the time of counseling, about her exposure of A.F. to her uncle and about the previous terminations. Mower testified this dishonesty caused her concern.
Mower testified that Elizabeth shared her previous history with the Department, which includes termination of her rights to two children in 2011. Elizabeth untruthfully shared with Mower that she voluntarily relinquished her parental rights in 2011.
In viewing this testimony in the light most favorable to the trial court's best-interest finding Mower's testimony established the trial court could reasonably have formed a firm conviction that Elizabeth was not able to provide A.F. with a safe environment in the foreseeable future should the court allow additional time for rehabilitation. While Elizabeth demonstrated an understanding of the importance of finding a job and providing a safe environment for herself and her child, she continued to fail to do so. Elizabeth continued to make poor decisions regarding her own safety even while engaging in counseling. While Elizabeth expressed a desire to be a good parent, this evidence demonstrated an inability to do so even with more training.
In viewing this testimony in the light most favorable to the trial court's best-interest finding Mower's testimony established the trial court could reasonably have formed a firm conviction that Elizabeth is not able to provide for A.F.'s emotional and physical needs now and in the future, there is a risk of emotional and physical danger to A.F. should he be placed in Elizabeth's care, does not possess the ability to obtain sufficient parenting abilities or provide a stable home environment and engages in activity that indicates a parent-child relationship with A.F. is not a proper one. See In the Interest of J.D., 436 S.W.3d at 118.
Elizabeth presented the testimony of Ray Torres, pastor at Sold Out Believer's Church. Torres testified that Elizabeth had been in the program for approximately seven months, and during that time had "been pretty much compliant" with the rules. Torres testified that it was possible for Elizabeth to live at Deborah House with A.F., and the home environment would be appropriate for them. Torres further testified that he had observed Elizabeth with A.F. on one occasion, a birthday party for his daughter, and she had fun with A.F. at the party. Torres stated that it was a violation of the rules of the program for Elizabeth to skip work to be with her uncle and to engage in sexual activity with her bosses and with the son of the Director; however, she was allowed to remain because, according to Elizabeth, "this was her bosses that were seducing her with this situation here."
Although Torres' testimony does show some support for Elizabeth, it is not sufficient to overcome the previous testimony from which the trial court could reasonably have formed a firm conviction that termination of Elizabeth's parental rights is in A.F.'s best interest. Undoubtedly counseling sessions, parenting classes, and drug testing and substance abuse programs sometimes result in sufficient rehabilitation of parental abilities; however, completion of these programs does not always guarantee that result for every attendee. See In the Interest of M.G.D., 108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); see also In the Interest of J.F.B., 04-15-00234-CV, 2015 WL 5837852, at *6 (Tex. App.—San Antonio Oct. 7, 2015, pet. denied). In accordance with this guideline, a parent's successful completion of a family service plan does not guarantee reunification with their child. See In the Interest of M.G.D., 108 S.W.3d at 514-15; see also In the Interest of J.F.B., 2015 WL 5837852, at *6. "In addition to the State's fundamental interest in protecting the best interest of a child, the State also has an interest in a final decision on termination so that adoption to a stable home or return to the parents is not unduly prolonged." In the Interest of M.G.D., 108 S.W.3d at 514; In the Interest of M.S., 115 S.W.3d 534, 548 (Tex. 2003). "By requiring all termination suits to be completed within a year, the Legislature made clear that courts cannot leave children in foster homes indefinitely while existing parents try to improve themselves and their conditions." In the Interest of M.G.D., 108 S.W.3d at 515.
The evidence of Elizabeth's aspired reformation and moderate change in lifestyle, however, does not erase the evidence of her criminal past, her previous terminations or failure to understand the need to modify her living arrangement and decisions to properly care for or parent A.F. The court could reasonably credit Raquel's and Mower's expressed concern that Elizabeth is not able to engage in proper parenting or understand how to care for a child in the foreseeable future. See Aguilar v. Foy, 03-10-00678-CV, 2012 WL 677497, at *9 (Tex. App.—Austin Mar. 1, 2012, no pet.).
CONCLUSION
After considering and weighing the statutory factors and the Holley factors and viewing the evidence in the light most favorable to the trial court's best interest finding, we conclude the trial court could reasonably have formed a firm conviction that termination of Elizabeth's parental rights is in A.F.'s best interest. Thus, the evidence is legally insufficient to support this finding. Moreover, because the evidence was not disputed, based upon the same evidence and conclusions, the evidence is also factually sufficient to support the trial court's finding that termination was in A.F.'s best interest. Therefore, we conclude the evidence is legally and factually sufficient to support the trial court's finding that termination was in the best interest of A.F.
Accordingly, we overrule Elizabeth's issue on appeal and affirm the trial court's order of termination. No costs shall be assessed against Elizabeth in relation to this appeal because she qualifies as indigent.
Jason Pulliam, Justice