Opinion
04-21-00288-CV
01-05-2022
IN THE INTEREST OF C.G., B.G., Jr., B.J.G. III, V.G., and M.G., Children
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-00062 Honorable Charles E. Montemayor, Judge Presiding
Rebeca C. Martinez, Chief Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
This is an accelerated appeal from an order terminating the parental rights of appellant, B.J.G. ("Father"), to his five children. Father challenges the sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(2). We affirm.
To protect the identities of the minor children in this appeal, we refer to the parents and the children by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
BACKGROUND
On January 9, 2020, the Texas Department of Family and Protective Services (the "Department") filed a petition to terminate the parental rights of Father and R.S. ("Mother"). The trial court held a bench trial on June 11 and June 22, 2021. At the time of trial, the children were ages six, five, four, three, and one. The trial court found two statutory grounds for termination as to each parent and that termination was in the children's best interest. The trial court terminated Father's and Mother's parental rights. Only Father appeals.
The trial court found that each parent failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of the children and that each parent used a controlled substance in a manner that endangered the health and safety of the children and failed to complete a court-ordered substance abuse treatment program. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (P).
STANDARD OF REVIEW
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 a 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.
BEST INTEREST
In his first issue, Father challenges the sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in the children's best interest. There is a strong presumption that keeping a child with a parent is in a 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.
I. Trial Testimony
At trial, a psychologist, a therapist, two Department caseworkers, Father's drug counselor, and the caregiver for the two youngest children testified. The psychologist testified that she conducted a psychological evaluation of Mother and Father in February 2020, which was a month after the children were removed from the parents' home. Both parents acknowledged that the children were removed due to Mother's drug use while pregnant with the youngest child. Father acknowledged recent marijuana use as well as a history of cocaine use and binge drinking. The psychologist diagnosed Father as having situational anxiety and codependency in his relationship with Mother. According to the psychologist, Father was aware of the services he needed to maintain sobriety and stability, which included individual therapy and completion of a drug and alcohol assessment. The psychologist opined that if the parents did not complete therapy, the possibility that the children could have stability if returned to their care was almost none.
Father's therapist testified that she treated Father from March 2020 to April 2021. Father's attendance was consistent; however, counseling ended because Father did not make changes to address his anger. According to the therapist, Father did not have family support, and he was not able to maintain stable employment or housing. Father stayed in hotels or lived in his car. Father worked on cars but did not have a full-time job. In April 2021, Father reported to his therapist that he obtained a home and that he could support his children financially, but the therapist was unsure whether Father could verify these matters. The Department sent the therapist a hair-follicle drug test result that showed Father tested positive for methamphetamine. Father took responsibility for marijuana use during therapy but denied methamphetamine use.
Father's drug counselor testified that Father was unsuccessfully discharged from his outpatient drug treatment program due to sporadic attendance. In addition, Father was unable or unwilling to submit to required drug testing. Upon discharge, Father was referred for inpatient drug treatment based on his positive hair-follicle drug test and his failure to submit to required drug tests.
Over the course of the case, Father worked with four Department caseworkers; the last two of which testified. Father's second-to-last caseworker, Sheri Blauser-Leckie worked with Father from August 2020 until February 2021. She testified that she reviewed Father's court-ordered service plan with him. The service plan required Father to complete a psychological evaluation, parenting classes, and individual therapy; Father was in compliance as to these services. However, the plan also required Father to complete a drug assessment and follow recommendations from his assessment. Based on his assessment, Father was required to complete outpatient drug treatment, but Father had not done so. In addition, Father's service plan required him to submit to random drug tests, but Father had not submitted to many of the Department's requests to test. Father reported to his caseworker that he could not comply with requests because drug tests interfered with his work as a mechanic.
The parents visited their children consistently, but Father yelled and cursed at staff during visits. During one visit described by Blauser-Leckie, Father was denied access to paperwork. He became angry and cursed, and the police had to be called. In addition, Blauser-Leckie escorted Father out of a meeting because Father became upset. The meeting concerned the eldest child who had been inappropriately touched by another child at a foster home. The Department investigated the incident and determined the incident was "exploration" without aggression. The three older children, who had been placed at the home where this incident occurred, were removed. According to Blauser-Leckie, the children were bonded to Father, and the three older children sought comfort from him. The two younger children were placed with Father's maternal cousin, Jordan Briller, and were bonded to her as well. Father and Mother reported to Blauser-Leckie that they stayed with relatives and moved from place to place.
Cambryn Wheeler, the Department's caseworker at the time of trial, also testified. According to Wheeler, the parents had not engaged in additional services or drug tests since she was assigned to the case. Father told Wheeler that he did not believe he needed to complete drug treatment and that his positive drug test was due to medications he was taking. When Wheeler sought further details and proof, Father provided none and stated the medications were locked in storage. Father did not provide Wheeler with proof of employment or the address of his new home. Wheeler opined that termination of Father's parental rights was necessary because, absent termination, the children's legal caregivers could face Father's aggressiveness. Wheeler described one instance of aggression in which Father became upset because the middle child wore glasses to a visit. Wheeler explained to Father that the glasses were medically necessary. Wheeler testified that the three older children lived with a foster-to-adopt family and were bonded to their foster parents. The two younger children were placed with Briller, who intended to adopt them.
Last, Briller testified. She stated that she became involved with the children the day they were removed. Her plan was to adopt the two youngest children and participate in the lives of all five children. She and the other foster parents were intent on keeping the children in contact with one another through regular visits.
II. Analysis
The first Holley factor concerns the desires of the children. See Holley, 544 S.W.2d at 372. The children did not state their explicit desires, and several of the children may have been too young to express their desires. All of the children were bonded to Father and to their foster parents, and the three oldest children sought comfort from Father. The first Holley factor may weigh slightly against termination.
Evidence as to the other Holley factors, however, supports the trial court's termination decision. Father failed to complete drug treatment, tested positive for methamphetamine during the course of the case, and failed to submit to drug tests in violation of his court-ordered service plan. Illicit drug use is relevant to multiple Holley factors, including the children's emotional and physical needs now and in the future, the emotional and physical danger to the children now and in the future, Father's parental abilities, the stability of Father's home, and the acts or omissions which may indicate an improper parent-child relationship. See Holley, 544 S.W.2d at 371-72. "Additionally, a parent's illegal drug use exposes [a] child to the possibility that the parent may be impaired or imprisoned." See In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op.) (explaining drug use implicates multiple Holley factors). Father explained his positive drug test as the result of medications he was using, and he justified his noncompliance with testing as due to work obligations; however, the trial court was free to disbelieve Father's unsupported explanations. Cf. In re E.A.M.V., No. 04-18-00866-CV, 2019 WL 1923214, at *4 (Tex. App.-San Antonio May 1, 2019, pet. denied) (mem. op.) (explaining trial court could have disbelieved parents' testimony); In re A.M.L., 2019 WL 6719028, at *4 (explaining trial court could infer drug abuse from parent's failure to submit to drug testing).
The trial court also could have inferred from Father's failure to complete drug treatment, maintain sobriety, and submit to required drug tests that he lacked parental abilities, including the motivation to seek out and utilize available resources. See Holley, 544 S.W.2d at 372; In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) ("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 the child's family to seek out, accept, and complete counseling services and willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time).
Father's therapist and two caseworkers testified about Father's inability to manage his anger. Blauser-Leckie testified that all five children were present when Father became angry over paperwork and the police had to be called. Wheeler described an incident when Father became angry because his son wore prescription glasses. Although Father justifiably could have been upset that his daughter was inappropriately touched, his anger reached beyond that matter. The trial court reasonably could have concluded that Father's anger jeopardized the children's present and future emotional and physical needs. See Holley, 544 S.W.2d at 372; cf. 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 . . . .").
Evidence of Father's instability in employment and housing also supports termination. "A child's need for permanence through the establishment of a 'stable, permanent home' has been recognized as the paramount consideration in a best-interest determination." In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). During the case, Father and Mother lived from place-to-place, and Father never had a full-time job. The trial court reasonably could have disbelieved Father's statement to Wheeler that he obtained a home shortly before trial or determined that any stability was unlikely to last. Cf. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) ("[E]vidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of . . . irresponsible choices."). At the time of trial, the children were placed in foster-to-adopt homes. The foster parents were able to meet the needs of the children, and all foster parents desired that the children maintain contact with one another.
Viewing all of the evidence in the light most favorable to the 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 Father's parental rights was in the children'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 the children's best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Father's first issue.
Father argues in his second issue that the trial court abused its discretion in making its conservatorship finding in favor of the Department because the termination order was based on insufficient evidence. Because we hold the trial court's termination order is based on sufficient evidence, we overrule Father's second issue.
CONCLUSION
We affirm the trial court's order.