Opinion
NO. 09-11-00619-CV
05-31-2012
IN THE INTEREST OF C.R. AND L.R.
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. C-210,437
MEMORANDUM OPINION
Appellant J.R. appeals from the trial court's judgment terminating her parental rights concerning her children, C.R. and L.R. She attacks the sufficiency of the evidence and the timing of the appointment of counsel. We conclude the record supports the trial court's judgment terminating her parental rights. We also conclude the trial court did not abuse its discretion in appointing counsel. The trial court's judgment is affirmed.
TERMINATION OF PARENTAL RIGHTS
Before parental rights may be terminated, the petitioner must establish by clear and convincing evidence that the parent has committed one or more of the acts or omissions set out in section 161.001(1) of the Family Code, and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2011); seealso In re J.P.B., 180 S.W.3d 570, 572 (Tex. 2005). "'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 2008).
The trial court found that J.R. had knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the children's physical or emotional well-being, that J.R. engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being, and that J.R. failed to comply with the provisions of the court order that specifically established the actions necessary for her to obtain the return of her children. See id. § 161.001(1)(D), (E), and (O). The trial court also found that J.R. used a controlled substance in a manner that endangered the health and safety of the children, and that she failed to complete a court-ordered substance abuse treatment program or continued to abuse a controlled substance after completing a court-ordered substance abuse treatment program. See Tex. Fam. Code Ann. § 161.001(1)(P). The trial court determined that termination of J.R.'s parental rights is in the children's best interest.
J.R. attacks the legal and factual sufficiency of the evidence supporting the trial court's findings that she failed to comply with a court order, and that she knowingly placed or knowingly allowed her minor children to remain in conditions or surroundings which endangered their emotional or physical well-being. J.R. does not raise an appellate issue concerning the trial court's other stated grounds for terminating her parental rights: that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; and that she used a controlled substance in a manner that endangered the health and safety of the children, and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court ordered substance abuse treatment program, continued to abuse a controlled substance. See id. § 161.001(1)(E), (P). Although the State does not rely on the trial court's ground for termination under section 161.001(1)(P), J.R. failed to attack that ground on appeal. She has waived any complaint concerning the sufficiency of the evidence to support the trial court's other grounds. See In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.). "Only one predicate under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is not in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Issues one and two do not justify a reversal of the trial court's judgment. See id.
BEST INTEREST FINDING
In issue three, J.R. argues the evidence is legally and factually insufficient to support a finding that termination is in the children's best interest. Section 263.307(a) of the Family Code provides that "prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." Tex. Fam. Code Ann. § 263.307(a) (West 2008). 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). The Texas Supreme Court has set forth a non-exhaustive list of factors for consideration: (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 which 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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
J.R. began using drugs on a regular basis at age nineteen. She smoked marijuana while she was pregnant with C.R. The record shows that the Department of Family and Protective Services became involved when C.R. tested positive for marijuana at the time of his birth. When C.R. was three months old, J.R. met C.H., L.R.'s father. J.R.'s family-based services worker found marijuana seeds on the bathroom counter where J.R. was living, but J.R. claimed the seeds were C.H.'s. J.R. admitted using marijuana with C.H. She used marijuana while C.R. was sleeping.
J.R. testified that while she was pregnant with L.R., she moved with C.R. to a drug-rehab facility to avoid the Department's removal of her children. The Department received a report regarding J.R.'s negligent supervision of C.R. and L.R. The day after her arrest, J.R. tested positive for marijuana and cocaine.
Just prior to the removal of the children, J.R. had called the police to report that a man she had been dating pulled out a gun, and the gun discharged while her children were sleeping. She and the man smoked marijuana together. She "sent him away" because she did not want a drug dealer around her children.
J.R. took the children, then one and two years old, to another boyfriend's house. The children did not know the boyfriend. She left the sleeping children with the boyfriend. The boyfriend was "high." She drove to a grocery store in Beaumont. An officer found J.R. sitting in the driver's seat. She smelled of marijuana, was unsteady on her feet, and exhibited slurred speech. He arrested her in the grocery store parking lot because he believed her to be intoxicated "to a point to be a danger to herself and others." The Department filed a petition and was granted temporary conservatorship of the children.
J.R.'s family service plan included requirements that she attend parenting classes, participate in counseling, submit to random drug screens, obtain and maintain acceptable housing, and notify her case worker within forty-eight hours in advance if she needed assistance with transportation to and from appointments. J.R. testified she was not able to go to all of her counseling sessions because she did not have transportation and had to reschedule. She admitted she did not complete her counseling but stated that she could not attend any more sessions because the Department would not provide funding. After the children were removed, J.R. began staying with friends until she received her income tax refund. At the time of trial, she was renting a one-bedroom apartment. Since the time of the removal, she was self-employed with her own cleaning company and also worked at different part-time jobs. None of the part-time jobs lasted longer than three months. At the time of trial she had been working a sales job and had started a new part-time job and had been employed two weeks. She stated she relies on public assistance for food and transportation.
Since the birth of the children, she has been incarcerated several times. in 2009 and 2011, she was convicted of Class B theft for offenses. During the pendency of the case, J.R. failed to appear for two drug tests. J.R. tested positive for controlled substances on eight occasions, including one test two weeks before trial. At one point during the pendency of the case, J.R. admitted she smoked marijuana every other day. She testified at trial that she smoked marijuana during pregnancy to deal with her nausea and to "calm [herself] down." J.R. waited until the children were asleep to smoke marijuana. She admitted it was dangerous for her to be "high" while she was caring for her children and that it was unacceptable for the children to be sleeping in the house when she was smoking marijuana. At trial J.R. explained she was attending alcoholics anonymous/narcotics anonymous meetings. She acknowledged she had not really focused until recently and really did not start giving her full effort until about a month and a half before trial.
The CASA volunteer testified that the children had bonded well with the relatives with whom they had been placed. The relatives' home is stable and family-oriented. The volunteer noted that the children seemed happier and more settled when they were not interacting with J.R. and that some of J.R.'s supervised visits caused the children to be disruptive. The volunteer believed termination of parental rights and the plan of adoption would be in the children's best interest. The evidence is sufficient to support the trial court's finding that termination of J.R.'s parental rights is in the best interest of L.R. and C.R.
RIGHT TO COUNSEL
In her fourth issue, J.R. contends the trial court erred in not providing her with counsel sooner. The appointment of an attorney for indigent parents in a termination case filed by a governmental entity is mandated by statute. Section 107.013(a)(1) of the Texas Family Code provides that "[i]n a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in opposition to the termination." Tex. Fam. Code Ann. § 107.013(a)(1) (West Supp. 2011); see also In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet. denied); Melton v. Tex. Dep't of Family & Protective Servs., No. 03-08-00168- CV, 2010 Tex. App. LEXIS 1352, at *10 (Tex. App.—Austin Feb. 25, 2010, no pet.) (mem. op.).
At the full adversary hearing J.R. indicated she wanted to work with the Department. She did not request the appointment of counsel. The Department later filed its family service plan and listed its permanency goal for the children as "Family Reunification[.]" At the status hearing the same day the family service plan was filed, the CASA report admitted into evidence listed the goal as family reunification.
At the initial permanency hearing, the court set the case for trial. The next day, CASA filed a report indicating that it was in the best interest for the children to remain under the temporary conservatorship of the Department and for J.R. to continue to follow her service plan and work toward a safe and stable living arrangement for her children. At the hearing on the day the case was originally scheduled for trial, J.R. tested positive that for opiates and marijuana, and the trial was rescheduled. The Department requested that J.R. be appointed counsel. The trial court explained to J.R. that the Department would be seeking termination of her parental rights. The trial court appointed her counsel during the hearing. The CASA report introduced into evidence that day stated that J.R. had been informed that the goal would be changed to relative adoption.
Three months later, J.R.'s appointed counsel announced "ready" at trial. J.R. did not complain to the trial court regarding the timing of the appointment of trial counsel. The trial court did not abuse its discretion. See In re M.J.M.L., 31 S.W.3d at 354.
The issues raised by appellant do not support a reversal of the trial court's judgment. The judgment of the trial court is affirmed.
AFFIRMED.
DAVID GAULTNEY
Justice
Before Gaultney, Kreger, and Horton, JJ.