Opinion
No. 04-17-00682-CV
04-11-2018
IN THE INTEREST OF A.J.W., a Child
MEMORANDUM OPINION
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02816
Honorable Richard Garcia, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
This is an appeal from a trial court's order terminating appellant mother's ("Mother") parental rights to her child, A.J.W. On appeal, Mother contends the evidence is legally and factually insufficient to support the trial court's finding that termination was in A.J.W.'s best interest. We affirm the order of termination.
The trial court also terminated the parental rights of A.J.W.'s father, but he did not file a notice of appeal challenging the trial court's order. Accordingly, he is not a party to this appeal.
BACKGROUND
The Texas Department of Family and Protective Services ("the Department") became involved with the family in December 2016 after receiving reports that A.J.W., a five-month-old infant, was outside in clothing inappropriate for the weather, and Mother was under the influence of a controlled substance. The Department case worker described the referral as neglectful supervision and physical endangerment. After investigating the allegations, the Department removed the infant from Mother's care and placed him in foster care. Subsequently, the Department filed a petition to terminate Mother's parental rights to A.J.W. The Department created a service plan for Mother, requiring her to: (1) attend and complete domestic violence and parenting classes; (2) obtain a psychological evaluation and abide by recommendations made as a result of the evaluation; (3) participate actively in weekly child visitation; (4) submit to random drug testing; and (5) complete inpatient drug treatment. Mother signed the service plan on January 30, 2017, and it was filed with the trial court on February 3, 2017. However, just before the plan was signed and filed, the Department filed a motion asking the trial court to find "aggravated circumstances" pursuant to section 262.2015 of the Texas Family Code ("the Code"). See TEX. FAM. CODE ANN. § 262.2015(a) (West Supp. 2017) (stating that court may waive requirements of service plan and reasonable efforts to return child to parent, and accelerate trial schedule if court finds parent has subjected child to statutorily defined aggravated circumstances). The Department asserted an aggravated circumstances finding was warranted because Mother had previously had her rights terminated to two other children in separate proceedings based in part on findings that Mother's conduct violated section 161.001(b)(1)(E) of the Code. See id. § 262.2015(b)(5) (stating aggravated circumstance includes prior termination with regard to another child based on finding that parent's conduct violated section 161.001(b)(1)(D), section 161.001(b)(1)(E), or substantially equivalent provision of another state's law); id. § 262.2015(b)(7) (stating aggravated circumstance includes prior involuntary termination of parent's rights with regard to another child); id. § 161.001(b)(1)(E) (stating parental rights subject to termination if parent engaged in conduct or knowingly placed child with persons who engaged in conduct that endangered physical or emotional well-being of child). The trial court granted the motion and ordered the requirement of a service plan and reasonable efforts to return the child to Mother waived. See id. § 262.2015(a). Ultimately, the matter moved to a final hearing.
At the hearing, the trial court heard testimony from: (1) Alkeshia Daniels, the Department caseworker who worked with Mother throughout the course of the case; (2) Cecilia Ramirez, the Department's "removing investigator"; and (3) Dionne Cornew, the CASA volunteer on the case. According to her attorney, Mother was slated to testify, but Mother left the final hearing when the trial court called a brief recess during Ms. Daniels's testimony and never returned.
Ms. Daniels testified Mother's parental rights should be terminated because Mother admitted drug and alcohol use, but failed to complete treatment. In addition, Mother reported there were issues of domestic violence with A.J.W.'s father. She claimed he would hit her. Mother also self-reported mental health issues, specifically bipolar disorder and depression. And, as noted above, Mother previously had her rights to two other children terminated. Although the requirement of a service plan was waived, a service plan was prepared and signed by Mother. However, Mother failed to complete a single service. According to Ms. Daniels, Mother excused her failures by stating services were "hard" and she lacked support. Ms. Daniels opined that any bond Mother formed with A.J.W. was insufficient to overcome Mother's inability to change her lifestyle — specifically, her use of controlled substances; Mother had started and abandoned treatment for substance abuse several times. The CASA volunteer, Ms. Cornew, agreed with this opinion, stating Mother "could not complete things," and A.J.W. needs someone who has the ability to take care of his needs.
The trial court also heard testimony from the Department's removing investigator for this case, Cecilia Ramirez. Ms. Ramirez described the referral received by the Department in December 2016 — infant outside without proper clothing, Mother under the influence and acting inappropriately. She also described the condition of the hotel room where Mother and A.J.W. had been staying — dirty diapers on the floor, broken glass and a "white substance" on the dresser, and lack of adequate food. Ms. Ramirez testified Mother admitted using methamphetamines and abusing alcohol in conjunction with her drug use.
At the conclusion of the hearing, the trial court terminated Mother's rights, finding she: (1) engaged in conduct or knowingly placed her child with people who engaged in conduct that endangered his physical or emotional well-being, (2) failed to support her child in accordance with her ability; (3) had her parental rights terminated with respect to another child based on a finding that her conduct violated sections 161.001(b)(1)(D) or (E) of the Code; and (4) used a controlled substance, in a manner that endangered the health and safety of her child, and failed to complete a court-ordered substance abuse treatment program. See TEX. FAM. CODE ANN. § 161.001(b)(1) (E), (F), (M), (P) (West Supp. 2017). The trial court further found termination of Mother's parental rights would be in A.J.W.'s best interest. See id. § 161.001(b)(2). Accordingly, the trial court rendered an order terminating Mother's parental rights. Thereafter, she perfected this appeal.
ANALYSIS
On appeal, Mother does not challenge the evidence regarding the trial court's findings under section 161.001(b)(1) of the Texas Family Code ("the Code"). See id. § 161.001(b)(1)(E), (F), (M), (P). Rather, Mother argues the evidence is legally and factually insufficient to support the trial court's finding that termination was in her son's best interest. See id. § 161.001(b)(2). We disagree.
Standard of Review
A trial court may terminate a parent's right to a child only if it finds by clear and convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the Code and termination is in the best interest of the child. Id. § 161.001(b). "Clear and convincing evidence" is defined as "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. Courts require this heightened standard of review because termination of a parent's rights to a child results in permanent and severe changes for both the parent and child, thus, implicating due process concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual sufficiency of the evidence, we apply the well-established standards of review. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). In sum, an appellate court must determine whether the evidence is such that the trier of fact could reasonably form a firm belief or conviction that termination was in the child's best interest. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
In conducting a sufficiency review, we may not weigh a witness's credibility because it depends on appearance and demeanor, and these are within the domain of the trier of fact. J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the fact finder's reasonable resolutions. Id.
Best Interests — Applicable Law
In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In analyzing the evidence within the Holley framework, we note that evidence of each Holley factor is not required before a court may find that termination is in a child's best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2012). In other words, the absence of evidence as to some of the Holley factors does not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in a child's best interest. Id. Moreover, in conducting our review of a trial court's best interest determination, we focus on whether termination is in the best interest of the child — not the best interest of the parent. In re D.M., 452 S.W.3d 462, 468-69 (Tex. App.—San Antonio 2014, no pet.).
In addition to the Holley factors, we recognize 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). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a). Thus, to determine whether a child's parent is willing and able to provide the child with a safe environment, we also consider the factors set forth in section 263.307(b) of the Code. Id.
Additionally, evidence that proves one or more statutory grounds for termination may be probative to prove termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(1) grounds and best interest, but such evidence does not relieve State of burden to prove best interest). In conducting a best interest analysis, a court may consider in addition to direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). Finally, a trier of fact may measure a parent's future conduct by her past conduct in determining whether termination of parental rights is in the child's best interest. Id.
Application
As indicated above, the Department presented three witnesses at the final hearing — Ms. Daniels, the Department caseworker, Ms. Rodriguez, the Department's "removing investigator," and Ms. Cornew, the CASA volunteer. According to her attorney, Mother had planned to testify, but as noted above, she left during a recess and never returned.
Ms. Daniels testified A.J.W. was approximately a year old at the time of the final hearing. From her testimony, it follows that A.J.W. was too young to express an opinion on his desires with regard to conservatorship. See TEX. FAM. CODE ANN. § 263.307(b)(1) (child's age and physical and mental vulnerabilities); Holley, 544 S.W.2d at 371-72. However, when a child is unable to express his desires, a fact finder may consider that he has bonded with his foster family, is well cared for by them, and has spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re J.M., 156 S.W.3d 696, 706 (Tex. App.—Dallas 2005, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)). Here, there was evidence that although Mother and son had bonded based on their weekly visitations, the bond was insufficient to overcome Mother's chosen lifestyle, which included drug abuse. On the other hand, A.J.W. is thriving in his foster-to-adopt home. A.J.W.'s brother resides in the same home, having been previously adopted by A.J.W.'s foster mother. The evidence shows A.J.W. is "very bonded to his brother and his foster mom." J.D., 436 S.W.3d at 118. The foster mother cares for his special needs — asthma — and makes sure he receives the services that have been mandated for him. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72. Ms. Daniels testified the Department intends to proceed with adoption of A.J.W. by his foster mother in the event Mother's parental rights are terminated. See Holley, 544 S.W.2d at 371-72.
Ms. Daniels also testified that except for providing diapers two or three times over the course of a year, Mother did not provide any support for A.J.W. See TEX. FAM. CODE ANN. § 263.307(b)(12) (whether child's family demonstrates adequate parenting skills); Doyle v. Tex. Dep't of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied) (holding that parent's failure to provide stable home and provide for child's needs contributes to finding that termination of parental rights is in child's best interest). Holley, 544 S.W.2d at 371-72. Mother never provided proof of employment, relying on SSI for support. When the Department received the initial referral, Mother was apparently in treatment, but just prior to that, she and A.J.W. were living in a hotel. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (holding that parent's inability to provide stable home supports finding that termination is in child's best interest). Ms. Ramirez described the disturbing nature of the room in which they had recently resided — dirty diapers on the floor, broken glass and a "white powder" on the dresser, clothes all over the floor, and seemingly no food for either Mother or A.J.W. See id.; see Doyle, 16 S.W.3d at 398. At the time of trial, Mother was apparently living with her mother, but had plans to go to Corpus Christi for drug treatment. According to Ms. Daniels, A.J.W.'s maternal grandmother refused to admit her into the home when she made an unannounced visit.
The evidence also shows Mother did not address her infant's medical needs. See TEX. FAM. CODE ANN. § 263.307(b)(1); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Specifically, as noted above, A.J.W. suffers from asthma. See TEX. FAM. CODE ANN. § 263.307(b)(1). Ms. Daniels described him as a "sickly kid," who requires medication, beginning to thrive and recover only after placement in foster care. Id. In fact, when he was first taken from Mother by the Department, he was admitted to the hospital for approximately one week, suffering from the effects of exposure to the cold. See TEX. FAM. CODE ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
With regard to the emotional and physical danger to the child — now and in the future — there is evidence Mother was the victim of domestic violence, yet she failed to complete services offered to her with regard to this issue. See TEX. FAM. CODE ANN. § 263.307(b)(7) (history of abusive or assaultive conduct by child's family); id. § 263.307(b)(11) (willingness and ability of child's family to effect positive environmental and personal changes); Holley, 544 S.W.2d at 371-72. Moreover, Mother's issues relating to drug use were undisputed. See TEX. FAM. CODE ANN. § 263.307(b)(8) (history of substance abuse by child's family); Holley, 544 S.W.2d at 371-72; In re L.R.G., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (holding that parent's drug use supports finding that termination is in child's best interest). Although Mother passed the drug tests requested by Ms. Daniels during the course of this matter, Mother admitted to Ms. Daniels that she had used methamphetamines in August 2017 — eight months after A.J.W. was removed from her care and during her current involvement with the Department. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. Despite her drug use, Mother failed to complete any sort of drug treatment program. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10) (willingness and ability of child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate appropriate agency's close supervision); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. The Department, in the waived service plan signed by Mother, recommended inpatient drug treatment. Throughout the course of this case, Mother started inpatient treatment three or four times, but each time left before she completed treatment. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. As the CASA volunteer testified, Mother is unable to "complete things." See TEX. FAM. CODE ANN. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72.
The evidence also showed that Mother has had previous involvement with the Department, which ultimately resulted in termination of her parental rights to two other children. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. One termination took place in September 2008, the other in January 2017, soon after A.J.W. was removed from Mother's care. The more recent termination was based in part on Mother's use of controlled substances. See TEX. FAM. CODE ANN. § 161.001(b)(1)(P). In both of the prior cases, as here, there was evidence of neglectful supervision and drug use. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Despite the prior terminations, Mother failed not only to address her drug issues by attending and completing a treatment program, she continued to use drugs knowing termination was a possible result. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. A trier of fact may consider a parent's history with her other children in considering the danger or potential danger to another child. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013); In re E.A.F., 424 S.W.3d 742, 751 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Accordingly, in this case, the prior termination of Mother's parental rights to her other children was evidence the trial court could consider in determining whether termination was in S.A.'s best interest. See E.C.R., 402 S.W.3d at 248.
The foregoing evidence is also relevant to Mother's parenting abilities. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Mother has a history of drug use and mental illness, has been involved in domestic violence, and had her rights to two other children terminated. See TEX. FAM. CODE ANN. § 263.307(b)(7); id. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Despite these serious issues, the evidence shows Mother failed to complete any services to address even one of these issues. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. on this basis, the trial court could have determined Mother lacks the abilities needed to parent her infant son. See Holley, 544 S.W.2d at 371-72.
CONCLUSION
After considering all the evidence in the light most favorable to the trial court's best interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Mother's parental rights was in her child's best interest. See J.P.B., 180 S.W.3d at 573; H.R.M., 209 S.W.3d at 108. Thus, we hold the evidence is sufficient to support the trial court's finding that termination of Mother's parental rights was in her son's best interest and affirm the trial court's termination order.
Marialyn Barnard, Justice