Opinion
NO. 01-17-00037-CV
06-15-2017
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2015-04683J
MEMORANDUM OPINION
Mother challenges the trial court's determination that termination of her parental rights to her minor daughter, I.J.-S.A, was in the child's best interest. We affirm.
BACKGROUND
During her pregnancy, Mother was unemployed and lived with her mother, Shazan. She gave birth to I.J.-S.A. on June 15, 2015. The hospital made a referral to the Department of Family and Protective Services because both I.J.-S.A. and Mother tested positive for PCP in their system immediately after birth. Mother admitted to taking narcotics early in her pregnancy, but claimed that she had not been using PCP; she was only around other people using it.
The Department offered Mother family-based services and agreed to place I.J.-S.A. with Mother and Shazan, so long as they agreed that Mother was not to be left alone with I.J-S.A. The Department later asked Mother to move out of the house because she continued to take PCP. She was allowed to visit during the day, so long as her visits were supervised by Shazan.
When the Department discovered that Shazan was still allowing Mother to stay at the house and be unsupervised with I.J.-S.A., the Department sought to identify another potential relative placement. The only name the family provided was for Mother's brother, who was on probation for drug charges and an inappropriate caregiver candidate. I.J.-S.A. was moved into foster care. Mother committed a theft on August 18, 2015—just a few days after I.J.-S.A. was removed, for which she pleaded guilty and went to jail.
Mother's service plan required her to, among other things, participate in parenting classes, substance-abuse treatment, and submit to drug tests. It is undisputed that she did not comply with many of the service-plan requirements, and she continued to engage in risky behavior. For example, she presented to the MHMR Eligibility Center for a psychiatric assessment, but was discharged for inappropriate behavior, including—among other things—taking Xanax and providing Xanax to other patients. In October of 2015, Mother committed another theft and was again sentenced to jail time.
Mother identified Father for the Department. When contacted, he expressed doubt about whether I.J.-S.A. was his, and the court ordered DNA testing. On November 10, 2015, that DNA testing confirmed parentage, and the trial court signed an order establishing Father's paternity on January 14, 2016. Father maintained that he could not take care of I.J.-S.A. because he was busy with school and work.
Mother continued to fail drug screens. She was indicted again on a new theft charge in July 2016. At the time of the termination trial, she was in jail.
She testified at trial that she hoped to get clean after she was released from jail and regain possession of I.J.-S.A. She stated she bought I.J.-S.A. clothes, a pacifier, and things that I.J.-S.A. might need when she was able to visit I.J.-S.A. Mother testified to her belief that, when she got out of jail, she could provide a safe and stable environment for the I.J-S.A. She stated she would also try to get a job and, in the meantime, she hoped Shazan would be considered as a possible placement.
Mother acknowledged the foster parents had been taking care of her daughter for a long time and were doing a very good job.
I.J.-S.A.'s Department caseworker stated that I.J.-S.A. was doing very well in her foster placement. The placement family meets all of the child's physical and emotional needs and were willing to adopt the child. The caseworker also explained that the home study on Shazan's house was denied.
I.J.-S.A.'s foster mother testified that I.J.-S.A. had been in their home for over 16 months, and she was happy and doing very well in their home. I.J.-S.A. knows her foster parents as "mamma" and "daddy." The foster mother testified that they love I.J.-S.A. very much and intend to adopt her.
STANDARD OF REVIEW
Because parental-rights termination "is complete, final, irrevocable, and divests for all time that natural right[,] . . . the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). 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). This heightened burden of proof results in a heightened standard of review.
When determining legal sufficiency, we review "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 256, 266 (Tex. 2002). To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in a parental-rights-termination case, we must consider all of the evidence, not only that which favors the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
In determining factual sufficiency under the clear-and-convincing burden, we must consider whether the evidence is sufficient to produce a firm belief or conviction in the mind of the factfinder as to the truth of the allegation sought to be established. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id.
BEST INTEREST
For parental rights to be involuntarily terminated, it must be found by clear and convincing evidence that the parent engaged in conduct set out in subsection 161.001(b)(1) and that termination would be in the child's best interest pursuant to subsection 161.001(b)(2). TEX. FAM. CODE ANN. § 161.001 (West 2014). Both elements must be established. See Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Mother does not dispute that the Department satisfied the first element; she disputes, however, that the Department established that termination was in I.H.-S.A.'s best interest.
There is a strong presumption that the best interest of a child is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In assessing whether termination is in a child's best interest, the courts are guided by the non-exclusive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include (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 proper, and (9) any excuse for the acts or omissions of the parent. Id. "[T]he State need not prove all of the factors as a condition precedent to parental termination, 'particularly if the evidence was undisputed that the parental relationship endangered the safety of the child.'" In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
The Texas Family Code also provides a list of relevant considerations:
§ 263.307. Factors in Determining Best Interest of Child
(a) In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest.
(b) The following factors should be considered by the court and the department in determining whether the child's parents are willing and able to provide the child with a safe environment:
(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;
(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, including providing the child and other children under the family's care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;
(C) guidance and supervision consistent with the child's safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child's needs and capabilities; and
TEX. FAM. CODE ANN. § 263.307 (West Supp. 2015).(13) whether an adequate social support system consisting of an extended family and friends is available to the child.
. . . .
In arguing that the evidence is insufficient to demonstrate that termination of Mother's parental rights is in I.J.-S.A.'s best interest, Mother points to evidence that she completed some of her service-plan requirements. Mother also contends that she "made the effort to put her child first, which is arguably in her daughter's best interest." The Department responds that Mother's "efforts to do some services does not provide a basis for this court to find insufficient evidence for the court's best interest finding." We agree.
This case involves a mother who engaged systematically in behaviors that put I.J.-S.A. at risk. Mother was unable to refrain from doing drugs as a condition of remaining at Shazan's house, which would have kept I.J.-S.A. from entering the foster-care system. Mother had a long history of illegal drug use that spanned her pregnancy and after I.J.-S.A.'s birth. She committed numerous thefts after I.J.-S.A.'s birth, resulting in her confinement. Indeed, she was in jail at the time of the termination trial.
There was evidence at trial that parents are generally given one year to complete their services. Mother was given more than one year to demonstrate her commitment to providing a permanent and safe environment to raise I.J.-S.A. In that time, she failed to secure adequate and stable housing or employment. She failed to demonstrate any prolonged period of sobriety, and she continued to engage in behavior that landed her in jail.
Termination of Mother's parental rights to I.J.-S.A. rendered I.J.-S.A. available for adoption. I.J.-S.A. had been placed in the same foster home for almost a year and a half at the time of trial, and her foster parents are the only parents she has known. All of I.J.-S.A.'s needs are being met in her foster home, and her foster parents would like to adopt her.
Reviewing "all the evidence in the light most favorable to the finding" and "disregard[ing] all evidence that a reasonable factfinder could have disbelieved or found to have been incredible" to "determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true," J.F.C., 96 S.W.3d at 266, we conclude that there is legally sufficient evidence to support the trial court's determination that termination was in I.J.-S.R.'s best interest. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
Reviewing all the evidence, we likewise do not conclude that "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" that termination of Mother's parental rights was in I.J.-S.R.'s best interest. J.F.C., 96 S.W.3d at 266 ("If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient."). Accordingly, the evidence is factually sufficient as well.
CONCLUSION
We affirm the trial court's termination order.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.