Opinion
11-21-00286-CV
06-10-2022
IN THE INTEREST OF D.I.H., A CHILD
On Appeal from the 326th District Court Taylor County, Texas Trial Court Cause No. 10154-CX
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
MEMORANDUM OPINION
JOHN M. BAILEY CHIEF JUSTICE
This is an appeal from an order in which the trial court terminated the parental rights of the mother and the father of D.I.H. Both parents appealed. On appeal, each parent presents one issue challenging the trial court's finding that the termination of that parent's parental rights is in the child's best interest. We affirm the order of the trial court.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West 2022). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) and that termination is in the best interest of the child. Id.
In this case, the trial court found that the mother and the father had each committed two of the acts listed in Section 161.001(b)(1)-those found in subsections (E) and (O). Neither parent challenges these findings on appeal.
The trial court also found, pursuant to Section 161.001(b)(2), that termination of the mother's and the father's parental rights would be in the best interest of their child. See id. § 161.001(b)(2). In the mother's sole issue on appeal, she challenges both the legal and factual sufficiency of the evidence to support the trial court's best interest finding. In the father's sole issue, he expressly challenges the legal sufficiency of the evidence in support of the trial court's best interest finding. Although the father does not expressly assert that the evidence is factually insufficient, he asks this court "to review the facts and sufficiency." Construing the father's issue liberally, we will therefore also address factual sufficiency with respect to the father's sufficiency challenge.
To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). We note that the trial court is the sole arbiter of the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86-87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.-Eastland 2010, pet. denied). But courts may use 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. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.
Evidence and Analysis
The record shows that the Department of Family and Protective Services received an intake in September 2020 after both parents were arrested during a traffic stop. The police found drugs in the vehicle, and both parents appeared to be intoxicated and smelled of alcohol. The parents were on their way to pick up eight-year-old D.I.H. from school. D.I.H. subsequently spent eight hours with the Department's investigator. During that time, D.I.H. picked the locks on all of the locked drawers in the office; he said that he learned how to pick locks from his parents. He also used sticky notes and mimicked, in his words, "rolling a joint." D.I.H. also reported that he had witnessed frequent domestic violence between his mother and father.
The Department's main concern in this case was D.I.H.'s exposure to drugs by his parents. During the Department's investigation, both parents denied drug use. However, while this proceeding was pending below, both parents tested positive on several occasions for illicit drugs for which they had no prescription. The unprescribed drugs used by the mother while this case was pending below included marihuana, codeine, morphine, and oxycodone. The father tested positive for various drugs, including methamphetamine. The parents also tested positive for other drugs for which they may have had a prescription, including hydrocodone. On twelve or thirteen occasions, the mother failed to submit to drug testing as requested; the father failed to do so on thirteen to fifteen occasions. Additionally, at a hearing that was held approximately two and one-half months prior to trial, the smell of marihuana was emanating from one or both of D.I.H.'s parents.
Prior to the 2020 intake that resulted in the removal of D.I.H. from his parents' care, the Department had been involved with D.I.H. and his parents a few times, including one occasion in 2019 when D.I.H. came to school with marihuana in his backpack. All of the Department's history with this family, which dated as far back as the month that D.I.H. was born, involved drug use in the home.
It was undisputed that neither the mother nor the father complied with the requirements of the court-ordered family service plan. The mother failed to attend substance abuse counseling as required, failed to complete a psychological evaluation, failed to complete individual therapy, missed numerous drug tests, and tested positive for unprescribed controlled substances. The father failed to attend substance abuse counseling, failed to complete a psychological evaluation, failed to participate in individual therapy, missed numerous drug tests, and tested positive for unprescribed controlled substances. Furthermore, the parents failed to obtain safe, stable housing. The record shows that the parents and D.I.H. lived in a motel at the time of removal and that the parents thereafter refused to supply the Department or the CASA volunteer with an address for the parents. Thus, the Department was not able to visit the parents' home and ensure that the parents had a safe, stable environment for D.I.H. The father testified at the final hearing that he and the mother had been living with his elderly aunt for almost a year, but he acknowledged that the aunt's home was not a suitable environment for D.I.H.
When D.I.H. was removed, he was placed in foster care. D.I.H. attended counseling on a regular basis. According to his counselor, the Department's permanency case manager, and the CASA volunteer, D.I.H. thrived in foster care. However, it was also undisputed that D.I.H. was emotionally bonded with both of his parents and enjoyed spending time with them. The mother and the father regularly exercised visitation with D.I.H., and those visits generally went well- except for the occasional times that the father would act in a hostile manner toward Department personnel.
D.I.H. became upset when he was informed that he might not ever see his parents again. The father testified that he did not believe it would be in D.I.H.'s best interest to terminate either his or the mother's parental rights. The father believed that D.I.H. would be crushed. According to the father, he had a great father-son relationship with D.I.H., and D.I.H. loved his mother "a lot."
The Department's permanency case manager testified that, despite D.I.H.'s bond with his parents, it would be in D.I.H.'s best interest for the parental rights of both parents to be terminated. The case manager explained that the parents had not taken corrective action and that D.I.H. would be in danger if returned to his parents. The CASA volunteer who had been appointed as the guardian ad litem for D.I.H. agreed that termination of the mother's and the father's parental rights would be in D.I.H.'s best interest. The CASA volunteer acknowledged that termination would have a negative impact on D.I.H. in the short term, but she indicated that "children are resilient" and that, because the parents had not done what they needed to do, it would be in D.I.H.'s best interest for him to remain with his foster parents and for the mother's and the father's parental rights to be terminated.
The Department's plan for D.I.H. was "to find a home that could adopt him." None of the potential placements that had been recommended by the parents were viable options. Therefore, at the time of the final hearing, D.I.H. had been in the same foster home for approximately one year. At trial, it was not clear whether these foster parents intended to adopt D.I.H. if he were to become available for adoption.
The trial court, as the trier of fact, is the sole judge of the witnesses' credibility. A.B., 437 S.W.3d at 503. We are not at liberty to disturb the determinations of the trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573. Giving due deference to the trial court, we hold that, based on the evidence presented at trial and the Holley factors, the trial court could reasonably have formed a firm belief or conviction that termination of the mother's and the father's parental rights would be in the best interest of D.I.H. See Holley, 544 S.W.2d at 371-72. Upon considering the record as it relates to the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of those involved, the plans for the child by the Department, the mother's and the father's continued use of drugs while the case was pending below, D.I.H.'s exposure to drugs and domestic violence, and the instability of the parents' housing situation, we hold that the evidence is legally and factually sufficient to support (1) the trial court's finding that termination of the mother's parental rights is in the best interest of D.I.H. and (2) the trial court's finding that termination of the father's parental rights in the best interest of D.I.H. See id. We defer to the trial court's findings as to the child's best interest, see C.H., 89 S.W.3d at 27, and we cannot hold in this case that the trial court's findings as to best interest are not supported by clear and convincing evidence. Accordingly, we overrule each parent's sole issue on appeal.
This Court's Ruling We affirm the order of the trial court.