Opinion
NO. 02-17-00044-CV
05-11-2017
IN THE INTEREST OF D.T., A CHILD
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-102895-16 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
This is an ultra-accelerated appeal in which Appellant T.T. (Mother) appeals the termination of her parental rights to her son, Dylan. In a single issue, Mother argues that the evidence is insufficient to support the trial court's best-interest finding. For the reasons set forth below, we will affirm.
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed).
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
Prior to the termination trial regarding Dylan, Father gained legal custody of his and Mother's three older children—David, Alice, and Lily—due to Mother's drug use. The Texas Department of Family and Protective Services (the Department) removed Mother's youngest child, Dylan, from her possession because he was born addicted to methamphetamine. Mother failed to address her ongoing drug use and mental-health issues, leading ultimately to the termination of her parental rights to Dylan. Because Mother challenges the sufficiency of the evidence to support the trial court's best-interest finding, we set forth a summary of the evidence.
During the pendency of the CPS cases involving the children, Father filed for divorce. The trial court ultimately named Father as the permanent managing conservator of all four children; thus, Father is not involved in this appeal.
Dylan is the only child involved in this appeal.
The termination trial was combined with a hearing on Father's motion for monitored return of Dylan. These proceedings started on July 19, 2016, and were continued on September 15, 2016. Our summary covers the evidence presented on both dates.
B. Mother's Arrest in Nevada and Removal of Older Children
While Mother and Father were living in Nevada, Mother took Lily to the store with her. Mother was arrested at the store for being under the influence of drugs, and the sheriff brought Lily to Father. Father left Mother in jail and moved to Texas with David, Alice, and Lily.
Shortly after Father and the children arrived in Texas, CPS received a referral from the children's babysitter alleging that the children had unexplained bruises and marks on them. Latrecia Woods, a night investigator with CPS, testified that she spoke with Father who said that Mother had been arrested somewhere in Nevada, that she had issues with drugs, and that he did not have contact information for her. Woods learned that Father and Mother had a pending CPS case in Nevada. Woods removed the children and opened a CPS case on November 3, 2014.
The following day, Woods obtained Mother's contact information and spoke with her. Mother said that she was in Nevada and had served forty-five days in jail. Mother explained her jail time by stating that she had gone to the store to get milk, that Father had left her there, and that she was crying and so emotional that the people at the store called the police to report her. Mother told Woods that Father had taken the children while she was in jail and that she had been looking for them ever since she was released. After Mother learned that a CPS case involving the three children had been opened in Texas, she and Maternal Grandmother moved to Texas from Nevada.
C. Mother's Service Plan
CPS caseworker Sheila Roberson testified that her initial concerns with Mother in November 2014 were her past CPS history in Nevada, her drug use, and her positive hair strand test. Roberson developed a service plan for Mother that required her to complete a drug and alcohol assessment, an assessment at MHMR, a psychiatric assessment, parenting classes, individual counseling, and New Day Services Motherhood Program; to attend visitation; to participate in random drug testing; to refrain from criminal activity; and to maintain contact with the Department. Roberson went over the service plan with Mother, who appeared agreeable to participating in the services. Mother went for the drug assessment in December 2014 and the MHMR assessment in January 2015. Mother did not, however, immediately start the inpatient treatment recommended by her drug assessment.
D. Mother Gives Birth to Drug-Addicted Dylan
In February 2015, Woods received a referral that Mother had given birth to Dylan. The referral alleged neglectful supervision and physical abuse of Dylan by Mother due to using methamphetamine while pregnant, to failing to obtain prenatal care, and to testing positive for amphetamines on a urine drug screen at delivery. Woods testified that Dylan also tested positive for amphetamine. Woods went over the concerns of Mother's testing positive for amphetamines and Dylan's exhibiting signs of drug withdrawals, and Mother admitted that she had used methamphetamine while pregnant with Dylan. Mother told Woods that she had last used methamphetamine a week before she delivered, but Mother told hospital staff that she had binged on methamphetamine for the month prior to delivering Dylan. Although Mother told Woods that the father of Dylan was "some random drug head in Nevada," paternity results revealed that Father was Dylan's father. Woods concluded that Mother was "reason to believe" for neglectful supervision of Dylan; Woods ruled out the allegation of physical abuse of Dylan by Mother.
The referral also indicated that Mother had been diagnosed with bipolar disorder, which had not been treated.
Dylan's case was ultimately severed from the case involving the three older children.
E. Mother's Compliance with her Service Plan after Dylan's Birth
Based on the drug assessment, Mother went to inpatient treatment at Pine Street in March 2015 but was unsuccessful. Mother stayed at Pine Street only one week because they wanted her to go to John Peter Smith Hospital for mental-health issues, and she did not initially want to go to JPS. Mother ultimately went to JPS in May 2015, and doctors there said that she needed medication. Mother later told Roberson that she was so high that she left JPS, flagged down a trucker, and went to Midland to live with her boyfriend. Mother stayed in Midland for the month of May and then returned to Fort Worth for a hearing. Mother told Roberson during summer 2015 that she was continuing to use methamphetamine and marijuana.
Roberson testified that Mother had gone to Oceans Behavioral Hospital in Midland for ten days, but Roberson did not give a date for this. Roberson did not receive a certificate of completion from Oceans.
Roberson talked to Mother about engaging in services so that she could get the help she needed to address her mental-health issues and substance-abuse issues. Mother agreed to participate in her services but did not follow up.
In the fall and winter of 2015, Mother lived with relatives and friends; every time Roberson talked to Mother, she was living someplace new. In December 2015, Mother told Roberson that she was moving to California "to get herself together" because she had more support there and would work her services there. After Mother moved to California, she never called Roberson and asked her to set up services in California. Roberson heard from Mother shortly after the beginning of 2016 but had not heard from her again until the first day of the trial—July 19, 2016—when Mother texted to find out what time the trial was scheduled.
Throughout the case during Roberson's contacts with Mother, Mother continued to admit that she was still using methamphetamine. In August 2016, which was after the trial had started in July but before it was continued in September, Roberson asked Mother to complete a drug test, and Mother did not go take the test. Roberson testified that Mother's failure to go to her drug test indicated that she was still using drugs.
Roberson's concerns about Mother's ability to parent Dylan included Mother's drug usage, untreated mental-health issues, and housing instability. Roberson was also concerned about Mother's ability to know what Dylan's needs are and to care for him based on his therapeutic needs. At the time of the termination trial, Mother had not completed her services; had not addressed her mental-health issues or her drug use; and had last visited with Dylan in December 2015.
Roberson testified that she had continued to set up visits after that time but that Mother had canceled them.
F. Dylan's Condition
After Dylan was discharged from the intensive care unit following his birth, he spent one night in a temporary foster home before moving to the foster home that he stayed in for the remainder of the case. Roberson explained that Dylan had gone through a withdrawal period after he was born and that some of the withdrawal symptoms had lingered, including leg tremors and being easily overstimulated. Dylan was diagnosed with Neonatal Abstinence Syndrome, and there were also concerns that Dylan had fetal alcohol syndrome. The record demonstrated that as a result of Dylan's drug exposure in utero, he might face challenges with Attention Deficit Hyperactivity Disorder (ADHD) and Attention Deficit Disorder (ADD) when he reaches elementary-school age.
Dylan received Early Childhood Intervention (ECI) services throughout the case to work on cognitive issues. During the case, Dylan received mobility therapy and occupational therapy, which alternated every other week. ECI, as well as Dylan's pediatrician, had recommended that Dylan not be placed in daycare; instead, ECI recommended a structured, low-stimulus environment for Dylan. The record demonstrated that the foster parents had made numerous accommodations to their home to decrease overstimulation and had created two pieces of apparatus to help him with gross motor skills and fine motor skills.
Roberson testified that Dylan's foster home was very loving, that Dylan has a very strong bond with his foster parents, and that they are very in tune to his needs. The foster parents had taken Dylan to classes at Little Gym and to swimming lessons. Roberson said that the foster parents had been able to meet all of Dylan's medical, developmental, and financial needs, and she opined that they would be able to continue meeting his needs in the future.
G. The Department's Plan
Roberson asked the trial court to terminate Mother's parental rights to Dylan based on her drug use during her pregnancy with Dylan. Roberson testified that she would ask for the trial court to terminate Mother's parental rights even if it did not terminate Father's parental rights because Mother had not responded adequately to any of the services the Department provided her to address her mental-health issues or her substance-abuse issues, because Roberson believed that Mother did not have a relationship with Dylan, and because it was in Dylan's best interest.
The CASA volunteer testified that she would not be opposed to terminating Mother's parental rights to Dylan but that any recommendation from her was "a little bit outside of [her] scope" because she had not had direct contact with Mother during the case.
Roberson testified that the Department's plan was for Dylan to be adopted by the foster parents. Roberson believed that adoption by the foster parents was in Dylan's best interest.
H. Disposition
After hearing the above evidence, the trial court found by clear and convincing evidence that Mother had knowingly placed or had knowingly allowed Dylan to remain in conditions and surroundings that had endangered his physical or emotional well-being, that she had engaged in conduct or had knowingly placed Dylan with persons who had engaged in conduct that had endangered his physical or emotional well-being, that she had constructively abandoned Dylan, and that she had been the cause of Dylan being born addicted to alcohol or a controlled substance. After also finding by clear and convincing evidence that termination of Mother's parental rights to Dylan was in his best interest, the trial court terminated Mother's parental rights to Dylan.
III. SUFFICIENT EVIDENCE SUPPORTS BEST-INTEREST FINDING
In her sole issue, Mother argues that the evidence is legally insufficient to support the trial court's best-interest finding.
The statement of the issue in Mother's brief references factual sufficiency, but her brief fails to set forth the law on factual sufficiency and to perform a factual-sufficiency review. To the extent Mother sought to challenge the best-interest finding on factual-sufficiency grounds, we overrule such challenge as inadequately briefed. See Magana v. Citibank, N.A., 454 S.W.3d 667, 680-81 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (deeming issue waived due to inadequate briefing); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex. 1994) (recognizing long-standing rule that error may be waived due to inadequate briefing).
A. Burden of Proof and Standard of Review
In a termination case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92 (1982)). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554-55; Holick, 685 S.W.2d at 20-21.
Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2016), § 161.206(a); E.N.C., 384 S.W.3d at 802. Due process demands this heightened standard because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758-59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it "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 2014); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the Department must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the Department proved the challenged ground for termination. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id.
We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province. Id. at 573-74. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id. at 573.
B. Best-Interest Factors
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).
We review the entire record to determine the child's best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative of both the subsection (1) ground and best interest. Id. at 249; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include the following: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, "we consider, among other evidence, the Holley factors"); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some listed factors may be inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id.
C. Analysis of Holley Factors
Throughout our analysis of the Holley factors, we use the evidence related to the foster parents when discussing the proposed placement because during the combined termination trial and hearing on Father's motion for monitored return, the Department's recommendation was to deny Father's motion for monitored return, to terminate Mother's and Father's parental rights to Dylan, and to allow Dylan to be adopted by the foster parents.
With regard to the desires of the child, the record demonstrates that at the time of the trial, Dylan was eighteen months old and thus did not testify. Mother had not visited with Dylan in at least nine months. Evidence exists that Dylan had bonded with his foster parents, and no evidence exists of any emotional bond between Dylan and Mother. See In re K.K.J., No. 02-13-00139-CV, 2013 WL 4506883, at *7 (Tex. App.—Fort Worth Aug. 22, 2013, no pet.) (mem. op.) (stating that there was little, if any, emotional bond between children and mother who had not visited children in ten months due to her incarceration). The trial court was thus entitled to find that this factor weighed in favor of termination of Mother's parental rights to Dylan.
With regard to the emotional and physical needs of Dylan now and in the future, his basic needs included food and clothing, routine medical and dental care, and a safe and stable home. Dylan was born addicted to methamphetamine and went through withdrawal after birth, including exhibiting respiratory issues and tremors, as well as being easily overstimulated. Because Dylan suffered from lasting effects of being born addicted to methamphetamine, he required a structured, low-stimulus environment and therapy to develop his motor skills. Mother had not shown the ability to maintain safe and stable housing, much less a house that would meet Dylan's therapeutic needs. The trial court was entitled to find that this factor weighed in favor of termination.
With regard to the emotional and physical danger to Dylan now and in the future, the evidence demonstrates that Mother used drugs while pregnant with Dylan, that she admitted that she had continued to use drugs throughout the time this case was pending, and that she had not completed drug treatment or addressed her mental-health issues as required by her service plan. Because Dylan was continuing to suffer from the effects of being born addicted to methamphetamine and because the record demonstrated that he might face challenges with ADHD and ADD when he reaches elementary-school age, the trial court was entitled to find that this factor weighed in favor of termination.
With regard to Mother's parental abilities, the record demonstrates that although Mother was appropriate during her visits, she had not visited with Dylan for at least nine months at the time the termination trial concluded. The trial court was entitled to find that this factor weighed in favor of termination.
With regard to the programs available to assist Mother to promote the best interest of the child, Mother failed to take advantage of the court-ordered services that she was offered to address her mental-health issues and her substance-abuse issues. The trial court was entitled to find that this factor weighed in favor of termination.
With regard to Mother's plans for Dylan and the stability of the home or proposed placement, Mother's plans, if any, for Dylan are not apparent from the record because she did not testify at trial, and she had not shown the ability to provide a safe, stable home. The foster parents, who had cared for Dylan for almost seventeen months, wished to adopt Dylan and had demonstrated that they could provide a home that met Dylan's therapeutic needs. The trial court was entitled to find that these factors weighed in favor of termination.
With regard to Mother's acts or omissions that may indicate the existing parent-child relationship is not a proper one, the analysis set forth above—which details Mother's methamphetamine use while pregnant with Dylan, her failure to work her services to address her drug addiction and mental-health issues, and her failure to demonstrate the ability to provide a stable home—reveals that the existing parent-child relationship between Mother and Dylan is not a proper parent-child relationship. The trial court was entitled to find that this factor weighed in favor of termination.
As for any excuses for Mother's acts or omissions, Mother admitted using methamphetamine during her pregnancy with Dylan, which caused him to be born addicted to methamphetamine and to have special needs. The trial court was entitled to find that this factor was neutral.
Viewing all the evidence in the light most favorable to the best-interest finding and considering the nonexclusive Holley factors, we hold that the trial court could have reasonably formed a firm conviction or belief that termination of the parent-child relationship between Mother and Dylan was in Dylan's best interest, and we therefore hold the evidence legally sufficient to support the trial court's best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston 2010, pet. denied) (holding evidence legally sufficient to support the trial court's finding that termination of mother's parental rights was in child's best interest when most of the best-interest factors weighed in favor of termination); see also In re T.R.M., No. 14-14-00773-CV, 2015 WL 1062171, at *11-12 (Tex. App.—Houston [14th Dist.] Mar. 10, 2015, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court's best-interest finding based on mother's lack of a safe, stable home environment; noncompliance with services; and drug use); In re C.M.T., No. 07-14-00300-CV, 2014 WL 7149263, at *3-4 (Tex. App.—Amarillo Dec. 12, 2014, no pet.) (mem. op.) (holding evidence legally sufficient to support trial court's best-interest finding based on father's failure to visit or maintain contact with child and evidence that father had failed to comply with service plan and had exposed child to endangering environment). We overrule Mother's sole issue.
After setting forth the best-interest factors, Mother's brief fails to provide an analysis utilizing the factors. Mother's best-interest analysis instead focuses on the negative effects that she alleges Dylan will suffer due to not being able to visit with Mother when his siblings visit with her and relies on conservatorship cases to support her argument that termination of parental rights to one of four children is contrary to the proposition that custody of children from the same marriage should not be divided. Mother, however, has not shown that the negative effects, if any, that Dylan might suffer due to not being allowed to visit with her when his siblings visit with her outweigh the trial court's best-interest finding, which is supported by the analysis of the Holley factors set forth above. Moreover, Mother acknowledges that the present case does not present "a question of splitting siblings in terms of a conservatorship position"—Father has conservatorship of all four children—and thus we conclude that the cases Mother relies on are distinguishable from the present scenario.
IV. CONCLUSION
Having overruled Mother's sole issue, we affirm the trial court's judgment terminating her parental rights to Dylan.
PER CURIAM PANEL: WALKER, MEIER, and GABRIEL, JJ. DELIVERED: May 11, 2017