Opinion
04-22-00579-CV
05-03-2023
IN THE INTEREST OF D.J.R., a Child
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA02365 Honorable Nicole Garza, Judge Presiding
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant J.L. appeals the trial court's order terminating her parental rights to her child, D.J.R. (born 2020). We affirm the trial court's order.
To protect the privacy of the minor children, we use initials to refer to the child, her biological and presumed parents, and her foster parent. Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
In November of 2020, the Texas Department of Family and Protective Services received a report from the hospital where D.J.R. was born "related to drug use by the mother of an infant." After an investigation, the Department "staffed the case for removal of [D.J.R.] for the child's safety." The Department removed D.J.R. from the hospital where she was born, obtained temporary managing conservatorship over her, placed her in the home of a maternal relative, and filed a petition to terminate J.L.'s parental rights. At that time, J.L. was involved in an existing legal case regarding her eight older children, which resulted in the termination of her parental rights to four of those children.
During the trial in this case, the Department presented testimony that it decided not to seek termination of J.L.'s parental rights to her four oldest children because they were teenagers who were more self-sufficient than their younger siblings. J.L. testified that she has possessory rights to her teenaged children, but she agreed they have not been returned to her care.
In this case, the Department created a family service plan requiring J.L. to, inter alia, submit to random drug tests, complete parenting and domestic violence classes, and participate in counseling as a condition of reunification. The Department ultimately pursued termination of J.L.'s parental rights to D.J.R.
Nineteen months after removal, the trial court held a two-day bench trial at which J.L. appeared. The trial court heard testimony from six witnesses: (1) the Department's investigator, Irene Wunderlich; (2) D.J.R.'s presumed father, P.L.; (3) J.L.; (4) J.L.'s counselor, Chanda Esparza; (5) the Department's caseworker, Yvette McCurtis; and (6) D.J.R.'s foster mother and J.L.'s cousin, J.G. At the conclusion of trial, the court signed an order terminating J.L.'s parental rights pursuant to section 161.001(b)(1)(E), (M), (O), (P), and (R) and its finding that termination of J.L.'s parental rights was in D.J.R.'s best interest. J.L. now appeals.
In its final order, the trial court found that J.L.'s husband, P.L., was not D.J.R.'s biological father and dismissed him from the case. D.J.R.'s alleged father, D.R., did not personally appear or testify at trial, but he was represented by counsel. The trial court's final order adjudicated D.R. as D.J.R.'s father and terminated his parental rights. Neither D.R. nor P.L. are parties to this appeal.
Analysis
J.L. raises two issues on appeal. First, she argues the evidence is legally and factually insufficient to support the trial court's finding that termination is in D.J.R.'s best interest. Second, she contends the trial court abused its discretion by not appointing her as D.J.R.'s possessory conservator.
Best Interest
Standard of Review
The involuntary termination of a natural parent's rights implicates fundamental constitutional rights and "divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). "As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent." Id. The Department had the burden to prove, by clear and convincing evidence, both that a statutory ground existed to terminate J.L.'s parental rights and that termination was in the best interest of D.J.R. Tex. Fam. Code Ann. § 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). "'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; In re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court's order of termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In reviewing the legal sufficiency of the evidence to support the trial court's findings, we 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." In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. A factual sufficiency review requires us to consider the entire record to determine whether the evidence that is contrary to a finding would prevent a reasonable factfinder from forming a firm belief or conviction that the finding is true. See id. The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346.
Applicable Law
There is a strong presumption that a child's best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption by clear and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d 92, 97 (Tex. App.-San Antonio 2017, no pet.). To determine whether the Department satisfied this burden, the Texas Legislature has provided several factors for courts to consider regarding a parent's willingness and ability to provide a child with a safe environment, and the Texas Supreme Court has used a similar list of factors to determine a child's best interest. Tex. Fam. Code Ann. § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
These factors include, inter alia: "(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 [. . .]; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child." Tex. Fam. Code § 263.307(b).
Those 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 those individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate 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).
A best interest finding, however, does not require proof of any particular factors. See In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.-San Antonio Apr. 29, 2015, no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and "[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest." In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.-San Antonio July 25, 2018, pet. denied) (mem. op.). In determining whether termination of the parent-child relationship is in the best interest of a child, a factfinder may judge a parent's future conduct by her past conduct. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied).
Application
Because J.L. does not challenge the trial court's findings that termination was warranted under section 161.001(b)(1)(E), (M), (O), (P), and (R), we must accept the validity of those findings. See In re S.J.R.-Z., 537 S.W.3d at 682; see also Tex. Fam. Code Ann. § 161.001(b)(1)(E), (M), (O), (P), (R). While evidence that proves a statutory ground for termination does not relieve the Department of its obligation to prove a child's best interest, "the same evidence may be probative of both issues." In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
"[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." Tex. Fam. Code § 263.307(a). Consequently, a trial court determining a child's best interest may consider "the emotional and physical danger to the child now and in the future." Holley, 544 S.W.2d at 371-72. Here, the Department presented evidence that J.L. had been involved in multiple violent relationships, including her relationship with D.J.R.'s father, D.R. J.L agreed that she has been involved with dangerous men in the past. She testified that she was no longer in a relationship with D.R. and that she moved into a battered women's shelter-and eventually moved away from San Antonio altogether-to avoid him. She also told the trial court she tried to obtain a protective order against D.R. while she was pregnant with D.J.R., but she did not complete that process.
J.L. also testified, however, that while she had been abused and threatened by D.R. and was afraid of him, she bailed him out of jail after he was arrested for shooting a gun in her brother's house. J.L.'s counselor, Esparza, believed this action raised concerns about how J.L. was applying the skills she learned in the counseling and domestic violence classes she had attended. Esparza testified that J.L. "has the knowledge and skill sets, so she understands the red flags, understands the cycle of violence, knows how to set and keep healthy boundaries, but she's choosing not to keep and put in place those healthy boundaries, which obviously cancels out the progress" J.L. may have made during this case. Esparza believed J.L.'s decision to bail out D.R. called into question her ability to provide a safe and stable home for D.J.R. Similarly, the Department's caseworker, McCurtis-who was also the caseworker in J.L.'s previous termination proceeding- testified that she believed J.L. has a pattern of dating men who could put D.J.R. in danger. This evidence is relevant to J.L.'s "willingness and ability . . . to effect positive environmental and personal changes within a reasonable period of time[.]" Tex. Fam. Code § 263.307(b)(11). This evidence is also relevant to a determination of "whether [J.L.] demonstrates adequate parenting skills, including providing the child . . . with . . . a safe physical home environment [and] protection from repeated exposure to violence even though the violence may not be directed at the child[.]" Id. § 263.307(b)(12)(D), (E).
McCurtis testified that while this case was pending, J.L.'s parental rights to four of her older children were terminated in a separate cause. McCurtis also testified that we affirmed that termination in January of 2022. See In re A.N.L., No. 04-21-00303-CV, 2022 WL 162426, at *1 (Tex. App.-San Antonio Jan. 19, 2022, no pet.) (mem. op.). The trial court was permitted to consider that prior termination in its best interest review. See In re J.E.R., No. 04-19-00566-CV, 2020 WL 690642, at *3 (Tex. App.-San Antonio Feb. 12, 2020, pet. denied) (mem. op.). A rational factfinder could conclude this evidence is relevant to J.L.'s willingness and ability to effect positive changes within a reasonable period of time. See Tex. Fam. Code § 263.307(b)(11).
Additionally, "a parent's actions or inactions with regard to the [court-ordered] service plan is relevant to a child's best interest." In re S.A.M., No. 04-18-00607-CV, 2019 WL 573469, at *6 (Tex. App.-San Antonio Feb. 13, 2019, pet. denied) (mem. op.). J.L. testified that her service plan required her to complete a domestic violence class and individual counseling. Both J.L. and McCurtis testified that J.L. started those tasks but did not finish them. J.L. also testified that she did not begin the domestic violence class until two weeks before trial. In reviewing a best interest determination, this court may consider a parent's delays in beginning her service plan. See, e.g., In re N.N.R., No. 04-20-00410-CV, 2021 WL 260240, at *3 (Tex. App.-San Antonio Jan. 27, 2021, pet. denied) (mem. op.). Moreover, Esparza testified that J.L. had not completed her counseling goals and still needed to work on "healthy boundaries . . . financial stability, child safety protectiveness. I mean, pretty much everything." In light of the testimony the trial court heard about J.L.'s history with domestic violence and the prior termination proceeding, this evidence is relevant to J.L.'s "willingness and ability . . . to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision[.]" Tex. Fam. Code § 263.307(b)(10).
A trial court may also consider "acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one[.]" Holley, 544 S.W.2d at 371-72. Here, the trial court found that J.L. was "the cause of [D.J.R.] being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription," and J.L. has not challenged that finding on appeal. Tex. Fam. Code § 161.001(b)(1)(R); see In re S.J.R.-Z., 537 S.W.3d at 682. D.J.R.'s foster mother, J.G., testified that D.J.R. "was having tremors and stuff when she came to our home" that continued for "about three or four months" after D.J.R.'s birth. J.G. testified that based on her review of D.J.R.'s "medical report from her meconium drug test," it was her understanding those tremors resulted from D.J.R. being "exposed to something" before she was born. McCurtis testified that the results of one of the drug tests J.L. took during this case raised concerns. McCurtis also explained that she asked J.L. to complete a drug assessment because of those concerns and that the drug assessment recommended an outpatient drug treatment program J.L. did not complete. See Holley, 544 S.W.2d at 371-72; see also Tex. Fam. Code § 263.307(b)(8) (trial court may consider parent's history of substance abuse).
A parent's missed visits with the child may also be an act or omission that supports termination. See In re L.J.R., No. 04-18-00544-CV, 2018 WL 5928487, at *3 (Tex. App.-San Antonio Nov. 14, 2018, no pet.) (mem. op). Here, J.L. testified that her last visit with D.J.R. was "about two months" before trial, and McCurtis testified that J.L. missed eighteen of twenty-seven possible visits with D.J.R. in 2022. McCurtis testified, moreover, that she did not believe D.J.R. was bonded to J.L.
Evidence regarding "the stability of the home or proposed placement" is another factor that may support a finding that termination is in a child's best interest. Holley, 544 S.W.2d at 371-72. In reviewing this factor, a trial court may consider whether the parent moves frequently. See In re D.S.D., No. 04-05-00756-CV, 2006 WL 923698, at *3-4 (Tex. App.-San Antonio Apr. 5, 2006, no pet.) (mem. op.). Here, the Department's investigator, Wunderlich, testified that when she opened this case, J.L. reported that she lived in an apartment with a roommate. However, the roommate told Wunderlich J.L. did not live there and that there were no childcare supplies in the apartment. While J.L. testified the roommate was wrong, the trial court was free to credit Wunderlich's testimony over J.L.'s. See In re J.O.A., 283 S.W.3d at 346. Furthermore, Esparza testified that J.L. had "at least two or three different residences" between January of 2021 and the trial in July of 2022, and McCurtis testified that she believed J.L. had had six different addresses during this case. J.L. testified that she did not know how many different residences she had had during this case. See In re D.S.D., 2006 WL 923698, at *3-4.
The Department presented evidence that D.J.R. was "thriving" in her current placement, where she was receiving therapy and medical treatment for speech issues, developmental delays, and recurring ear infections. See Tex. Fam. Code § 263.307(b)(1) (trial court may consider "the child's age and physical and mental vulnerabilities"). D.J.R. has lived in J.G.'s home since the Department removed her from the hospital after her birth, and J.G. testified that she and her husband would like to adopt D.J.R. See id. § 263.307(a); In re J.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *7 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) ("A child's need for permanence is a paramount consideration for the child's present and future physical and emotional needs."). J.G. also testified that she and her husband had custody of D.J.R.'s older brother, C.J.R., and that they were in the process of adopting him at the time of trial. In the non-termination family law context, "keeping siblings together is a factor a trial court may consider when deciding the best interest of the child[.]" Thornton v. Cash, No. 14-11-01092-CV, 2013 WL 1683650, at *13 (Tex. App.-Houston [14th Dist.] Apr. 18, 2013, no pet.) (mem. op.). We believe a factfinder may also properly consider that factor in a termination proceeding.
J.L. testified that D.J.R. was "always laughing and throwing her hands out to" J.L. during visits and that she believed their bond was "good." She also testified that she no longer had contact with D.R. and that she moved away from San Antonio so he would not know where she lives. The evidence further shows J.L. communicated regularly with her caseworker and that she successfully completed some parts of her service plan. J.L. also testified that her home was safe and appropriate for D.J.R. She acknowledged that she did not have a vehicle or access to public transportation where she was living at the time of trial, and she agreed that reliable transportation was an important part of her ability to bring D.J.R. home. She added, however, that she and her father were looking into obtaining a new vehicle, and she testified that she would be willing to move back to San Antonio if that did not work out. Finally, Esparza testified that J.L. has shown adequate coping skills in real life situations.
After reviewing the evidence-including the evidence that is contrary to the trial court's best interest findings-under the appropriate standards of review, we conclude a reasonable factfinder could have formed a firm belief or conviction that termination of J.L.'s parental rights was in the best interest of D.J.R. In re J.F.C., 96 S.W.3d at 266. We therefore hold legally and factually sufficient evidence supports the trial court's best interest finding. We overrule J.L.'s first issue.
Conservatorship
In her second issue, J.L. argues the trial court abused its discretion by not appointing her as D.J.R.'s possessory conservator. We review a trial court's conservatorship rulings for abuse of discretion. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). In making a conservatorship decision, a trial court has broad discretion in determining a child's best interest. In re J.J.R.S., 607 S.W.3d 400, 404 (Tex. App.-San Antonio 2020), aff'd, 627 S.W.3d 211 (Tex. 2021). We may not reverse a trial court's conservatorship ruling unless it was arbitrary or unreasonable. Id. Here, we have already concluded the evidence was legally and factually sufficient to support the trial court's finding that terminating J.L.'s parental rights was in D.J.R.'s best interest. Because the standard of review "is more stringent for termination decisions than for those regarding conservatorship," we cannot say the trial court abused its discretion by refusing to appoint J.L. as D.J.R.'s possessory conservator. See In re A.S., No. 04-14-00505-CV, 2014 WL 5839256, at *3 (Tex. App.-San Antonio Nov. 12, 2014, pet. denied) (internal quotation marks omitted).
Conclusion
We affirm the trial court's order of termination.