Opinion
NO. 01-17-00622-CV
12-21-2017
IN THE INTEREST OF D.K.W., JR., CHILD
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2016-01424J
MEMORANDUM OPINION
Appellant, L.K.W. (Mother), is appealing the termination of her parental rights to her son, D.K.W., Jr. (David). In two issues, Mother argues that (1) there is factually insufficient evidence to support the trial court's finding that termination of her parental rights was in David's best interest, and (2) there is legally and factually insufficient evidence supporting the trial court's finding that the appointment of the Department of Family and Protective Services (the Department) as David's sole managing conservator is in David's best interest.
We will use the Department's fictitious name for the child to protect his identity. See TEX. R. APP. P. 9.8(b)(2).
We affirm the trial court's judgment.
Background
On February 9, 2016, Child Protective Services (CPS) received a referral of neglectful supervision after Mother, who was driving while under the influence with David in the vehicle, had attempted to "run over" her boyfriend. Mother and David were living in a homeless shelter at the time of the referral. CPS removed David from Mother's care after Mother tested positive for illegal drugs, and Mother admitted to using marijuana and cocaine before David's seventh birthday party on February 20, 2016.
The Department filed suit seeking conservatorship of David and termination of the parent-child relationship between David and both of his parents and, on March 17, 2016, the court appointed the Department as David's temporary managing conservator. The trial court also ordered Mother and David's father, D.K.W., Sr. aka D.K.W., Sr., to comply with the Department's service plan.
Mother, who was previously diagnosed with bipolar disorder, and schizophrenia, continued to test positive for drugs after David was removed from her care. Specifically, hair and urine samples collected from Mother in March and April 2016 tested positive for amphetamine, methamphetamine, cocaine, and marijuana. On May 3, 2017, a hair panel specimen from Mother tested positive for cocaine. On June 14, 2017, a specimen collected from Mother was positive for marijuana. There also was a positive result for Ethyl Glucuronide.
In addition to her mental illness and illegal drug use, Mother also has an extensive criminal history. Mother was convicted of the felony offenses of injury to a child in 2001 and possession of a controlled substance in 2011. She was also convicted of theft by check, assault-bodily injury, and possession of cocaine in 2010, and theft in 2015. While David was in CPS's custody, Mother was arrested and charged with unlawful possession of a firearm by a felon. She was convicted of the felon-in-possession charge on November 8, 2016, and sentenced to 180 days in jail.
Mother also has a lengthy history with the Department and other child welfare agencies beginning in 1999 when her second child tested positive for cocaine at birth. Mother's parental rights to that child were terminated in 2001 after the trial court determined that Mother had committed the predicate acts set forth in Family Code subsections 161.001(b)(1)(D), (E), and (M). Mother's eldest child was also removed from her home on April 25, 2001, and placed in foster care after the agency found that there was reason to believe that Mother had physically assaulted the child on two occasions. Mother's parental rights to that child, however, were never terminated and the girl eventually placed out of care.
This case went to trial in July 2017. During the bench trial, the court took judicial notice of the record, including the termination of Mother's parental rights with respect to her second child in 2001. The trial court also admitted evidence of Mother's drug use and criminal history, along with the 2001 judgment terminating her parental rights.
Mother testified that the Department removed David from her care because she was living in a homeless shelter at the time and had no safe and stable place to live, and she had tested positive for illegal drugs in February 2016. She claimed that her positive drug tests in March 2016, April 2016, May 2017, and June 2017 were inaccurate and she testified that she had been sober since she was incarcerated on June 22, 2016.
Mother testified that she had completed everything on her family plan of service and was currently living in a small condominium efficiency, with room for David. Mother explained that her condominium facility had a community center, a school close by that David could attend, and no drugs or alcohol are allowed on the premises. Mother's daughter and granddaughter were also living in the same facility. Mother testified that she received $737 per month in Supplemental Security Income for her bipolar, schizophrenic, and depression issues, and that this was enough to pay her rent and provide for David. Mother also stated when she visits David, he tells her that he is tired of being where he is at and is ready to come home.
Father, who was incarcerated at the time for revocation of parole, also testified at trial. He acknowledged he was serving an eighteen-year sentence for unauthorized use of a motor vehicle offense and a twenty-five year sentence for possession with intent to deliver cocaine and that he would not be eligible for parole again until March 2018. Father's extensive criminal history also includes a 2015 conviction for child abandonment/endangerment child, stemming from an incident during which time he left David in the car while he went into a club. Father testified that he had a bond with David and that he had a sister and a niece who he wanted to be considered for placement.
David's caseworker testified that Mother had completed only a portion of her family service plan and that she had not provided a clean drug test since January 2017. The caseworker also disagreed that Mother's current living arrangement, which she described as a dormitory-style facility with a shared kitchen and bathrooms, was suitable for David. She further testified that CPS's goal was to place David with family and that they were awaiting the results of home studies being conducted for Mother's niece and sister. The caseworker was hopeful that David would be placed with family because one of David's maternal relatives had previously passed a home study and the agency had placed the woman's grandchildren with her. Although she testified that Father had not previously provided her with the names of any family members who he wanted considered for placement, she acknowledged that the Department was considering both maternal and paternal relatives for placement.
At the conclusion of trial, the trial court found that termination of Mother's parental rights to David was warranted under subsections (D), (E), (M), and (O) of Family Code section 161.001(b)(1), and that termination was in David's best interest. The trial court signed its termination order on July 25, 2017. This appeal followed.
The trial court also terminated Father's parental rights to David pursuant to Family Code sections 161.001(b)(1) (D), (E), (O), and (Q) and found that termination was in David's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1) (D), (E), (O), and (Q) (West Supp. 2017). Further, the trial court determined that Father had been convicted, placed on community supervision, or adjudicated for abandoning or endangering a child under Texas Penal Code section 22.041, which is a basis for termination under subsection 161.001(l)(L)(x). TEX. FAM. CODE ANN. § 161.001(b)(1)(L)(x); TEX. PENAL CODE ANN. § 22.041 (West 2011). Father is not a party to this appeal.
Best Interest of the Child
In her first issue, Mother argues that there is factually insufficient evidence supporting the trial court's finding that termination of her parental rights is in David's best interest because termination of her parental rights is not necessary to achieve permanency for David. Mother, who does not challenge the trial court's findings that she committed the predicate acts under Family Code subsections 161.001(b)(1)(D), (E), (M), and (O), acknowledges that the evidence is legally sufficient to support the trial court's best interest finding. See TEX. FAM. CODE ANN. § 161.001(b)(1) (D), (E), (M), & (O) (West Supp. 2017).
A. Standard of Review and Applicable Law
Protection of the best interest of the child is the primary focus of the termination proceeding in the trial court and our appellate review. See In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). A parent's rights to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In a case to terminate parental rights under Family Code section 161.001, the Department must establish, by clear and convincing evidence, that (1) the parent committed one or more of the statutory predicate acts or omissions justifying termination and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001. Clear and convincing evidence is "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." Id. § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
In conducting a factual-sufficiency review, we view all of the evidence, including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient only 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" regarding the finding under review. In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).
There is a strong presumption that the best interest of a child is served by keeping the child with the child's natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of the child in a safe environment, however, is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2017). 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. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best interest finding: the desires of the child; the present and future physical and emotional needs of the child; the present and future emotional and physical danger to the child; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list of factors is not exhaustive, however, and evidence is not required on all of the factors to support a finding that terminating a parent's rights is in the child's best interest. Id.; In re D.R.A., 374 S.W.3d at 533. Further, evidence supporting termination under one of the predicate grounds listed in section 161.001(b)(1) can also be considered in support of a finding that termination is in the best interest of the child. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest).
The Texas Family Code also sets out similar factors to be considered in evaluating the parent's willingness and ability to provide the child with a safe environment, including: the child's age and physical and mental vulnerabilities; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; and whether the child's family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child's needs and capabilities. TEX. FAM. CODE ANN. § 263.307(b); In re R.R., 209 S.W.3d at 116.
A parent's past conduct is probative of his future conduct when evaluating the child's best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.). A factfinder may also infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) (citing In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied)).
B. Analysis
Mother argues that the evidence is factually insufficient to support the trial court's determination that termination of her parental rights is in David's best interest because her niece could be appointed as David's permanent managing conservator and, rather than terminating her rights, Mother could be appointed as a possessory conservator with or without restricted access.
Multiple factors support the trial court's finding that termination of Mother's parental rights was in David's best interest. DFPS presented evidence that Mother has an extensive criminal record, including a 2001 felony conviction for injury to a child, and that her most recent criminal offense and conviction—unlawful possession of a firearm by a felon—occurred while this termination proceeding was pending. Although she disputes the accuracy of her drug tests, the Department also presented evidence that Mother tested positive for illegal substances at least four times while David was in CPS's custody.
Mother concedes that the Department presented sufficient evidence that she engaged in behaviors that endangered David under subsections D, E, and M—factors which weigh in favor of the trial court's best interest determination. See In re C.H., 89 S.W.3d at 27 (evidence supporting statutory grounds for termination may also be used to support finding that best interest of child warrants termination of parent-child relationship). The Department also presented undisputed evidence that Mother's parental rights to one of David's older siblings were terminated in 2001 after the trial court determined that Mother had committed predicate acts as set forth under these same three subsections. Mother concedes that her past conduct indicates that her relationship with David is improper and that this factor "weighs heavily in favor of the best interest termination finding." See In re O.N.H., 401 S.W.3d at 684 (stating that parent's past conduct is probative of parent's future conduct).
The Department's plan for David is a relative adoption. Although they are considering both maternal and paternal relatives, no home studies have been completed, and no permanent placement decision has been made. The Department, however, is very optimistic that a relative adoption will occur, particularly given the fact that one of Mother's relatives has already passed a home study and has had children placed with her in another proceeding. This circumstantial evidence that one of Mother's relatives may provide a permanent and stable home for David weights in favor of the trial court's best interest determination.
There is undisputed evidence that Mother completed some of her family plan. Although there is also evidence that Mother secured housing for herself and David, there is a dispute as to whether such dormitory-style housing is suitable for David. Mother also acknowledges in her brief that she cannot immediately provide David with stability.
There is no evidence with respect to whether David wants to continue to have a relationship with Mother, other than Mother's testimony that David tells her during their visits that he is ready to come home. The child's wants and desires, however, are only one of the factors that courts may consider for purposes of determining whether termination of a parent's rights is in the child's best interest. See Holley, 544 S.W.2d at 372.
Viewing all of the evidence, as we must, we conclude that any disputed evidence was not so significant that a fact finder could not reasonably have formed a firm belief or conviction that termination of Mother's parental rights was in David's best interest. See In re J.O.A., 283 S.W.3d at 345. Thus, we conclude that the evidence was factually sufficient to support the trial court's finding that termination was in David's best interest. See id.
We overrule Mother's first issue.
Conservatorship
In her second issue, Mother argues that there is legally and factually insufficient evidence supporting the trial court's finding that appointing the Department as David's sole managing conservator was in his best interest because permanency could be "easily achieved by appointing [her] niece as [David]'s permanent managing conservator and [Mother] as a possessory conservator with or without restricted access." According to Mother, this outcome is in David's best interest because "he desires to be with his mother, with whom he presumably has a bond," and it would allow him to continue to have his mother and maternal relatives in his life.
When the parents' rights are terminated, the trial court must appoint "a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child." TEX. FAM. CODE ANN. § 161.207(a) (West Supp. 2017); see In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435, at *17 (Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.). Conservatorship determinations are reviewed for an abuse of discretion and will be reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
An order terminating the parent-child relationship divests the parent of all legal rights and duties with respect to the child. See TEX. FAM. CODE ANN. § 161.206(b) (West Supp. 2017). Once we overrule a parent's challenge to a termination order, the trial court's appointment of the Department as sole managing conservator may be considered a "consequence of the termination pursuant to Family Code section 161.207." In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Because we have overruled Mother's challenge to the portion of the trial court's order terminating her parental rights, the order has divested Mother of her legal rights and duties related to David. See TEX. FAM. CODE ANN. § 161.206(b); In re A.S., 261 S.W.3d at 92. As a result, Mother does not have standing to challenge the portion of the order appointing the Department as David's conservator because any alleged error could not injuriously affect her rights. See E.A. v. Texas Dep't of Family & Protective Servs., No. 03-15-00811-CV, 2016 WL 1639847, at *4 (Tex. App.—Austin Apr. 21, 2016, pet. denied) (mem. op.) (affirming termination of mother's parental rights and holding that mother, who had been divested of her legal rights to child, could not challenge conservatorship determination); see also In re D.C., 128 S.W.3d 707, 713 (Tex. App.—Fort Worth 2004, no pet.) (holding that mother lacked standing to complain about termination of father's parental rights and explaining that party "may not complain of errors that do not injuriously affect her or that merely affect the rights of others"). Mother also does not have standing to challenge the order on behalf of another person. See id. E.A., 2016 WL 1639847, at *4; see also In re C.C., No.10-16-00129-CV, 2016 WL 6808944, at *14 (Tex. App.—Waco Nov. 16, 2016, no pet.) (mem. op.) (affirming termination of mother's parental rights and holding that mother who argued that conservatorship determination was erroneous because there were other "relatives [who] were willing to be the children's sole managing conservator" lacked standing to appeal conservatorship determination).
We overrule Mother's second issue.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Keyes, Brown, and Lloyd.