Opinion
No. 04-17-00536-CV
01-03-2018
IN THE INTEREST OF E.E.L., a Child
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02394
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
E.L., the father of E.E.L., appeals the trial court's order terminating his parental rights. E.L. challenges the sufficiency of the evidence to support both the trial court's predicate statutory findings and the trial court's finding that termination of E.L.'s parental rights was in E.E.L.'s best interest. We affirm the trial court's order.
BACKGROUND
On October 25, 2016, the Department filed its petition to terminate E.L.'s parental rights. At that time, E.E.L. was three weeks old. A bench trial was held on August 3, 2017. On the date of the trial, E.E.L. was nine months old.
The first witness to testify was the Department's legal worker. When E.E.L. was born, he and his mother tested positive for methamphetamines and amphetamines. E.E.L.'s mother denied using drugs. On one occasion when the legal worker visited E.E.L.'s mother about engaging in services, she had to speak with her outside because E.L. was yelling at the legal worker, using racial slurs and calling her vulgar, profane names. E.L. was incarcerated on April 16, 2017, for an assault charge. When the legal worker went to the home where E.L. and E.E.L.'s mother lived prior to E.L.'s incarceration, the home was boarded up.
The legal worker testified a service plan was prepared for E.L. which she reviewed with him. E.L. had not completed the required parenting class, the drug assessment, or the individual counseling. The legal worker testified E.L. might have gone to one individual counseling appointment, but he did not complete the counseling requirement. Although E.L. was taking a domestic violence class as part of his probation when the plan was implemented, E.L. was discharged from the class based on his failure to attend. Initially, E.L. told the legal worker the domestic violence involved a different girl but later admitted the domestic violence was against E.E.L.'s mother. The legal worker testified E.L. could have engaged in his services from November of 2016 to April 2017, when he was incarcerated. The legal worker stated E.L. had plenty of time to start services before his incarceration and possibly even complete them. Although E.L. told the legal worker he was unable to engage in services while incarcerated, the legal worker testified some incarcerated parents have been able to engage in services.
The legal worker testified E.L. tested positive for marijuana at the last hearing he attended, but E.L. denied using marijuana. Instead, E.L. told the legal worker he tested positive because his family uses marijuana. E.L. had not engaged in the required drug assessment; therefore, the legal worker was uncertain whether E.L. could provide E.E.L. with a drug-free home. The legal worker admitted she only sent E.L. for one drug test while the case was pending; however, she stated she had to be able to make contact with E.L. in order to complete the service authorizations for testing. In addition, the legal worker testified if E.L. had undertaken the required drug assessment, he would have been given random drug tests.
The legal worker testified E.L. had not demonstrated an appropriate parent/child bond with E.E.L. because he failed to consistently visit him. E.L. only attended fifteen of the thirty-seven visits scheduled with E.E.L. The legal worker did not believe E.E.L. knew E.L. was his father. E.L.'s last visit with E.E.L. was in March.
Although E.L. was employed at two jobs prior to his incarceration, E.L. was not employed at the time of trial because he was incarcerated; therefore, he was unable to financially support E.E.L. or provide him with a stable residence. E.L. told the legal worker he planned to move into his mother's house upon his release from jail in approximately three weeks. The legal worker testified his mother's home was studied, but the study was denied based on a concern about protective ability, including E.L.'s mother having a drug conviction that was a few years old.
The Department's plan was for E.E.L. to be adopted by the foster parents who have cared for him since shortly after his birth. The legal worker testified E.E.L. is bonded with his foster parents who have demonstrated the ability to provide E.E.L. with a drug-free, domestic-violence-free home. The legal worker stated the foster parents are equipped to deal with any complications E.E.L. may suffer from being born drug addicted.
E.L. testified he engaged in services and visited E.E.L. as much as he could while working two jobs. E.L. stated he would be released from jail in three weeks and wanted time to complete his service plan.
On cross-examination, E.L. admitted that in 2015, he was charged with assault of a family member impeding breathing or circulation. E.L. also admitted that from 1996 until the present he consistently had problems with the law. E.L. further admitted he engaged in domestic violence with E.E.L.'s mother.
After hearing the evidence, the trial court terminated E.L.'s parental rights. E.L. appeals.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'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 reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must "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.F.C., 96 S.W.3d at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
In conducting a factual sufficiency review of a trial court's order terminating parental rights, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. "In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a [factfinder's] factfindings and should not supplant the [factfinder's] judgment with its own." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal citations omitted). The evidence is only factually insufficient if "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" about the truth of the State's allegations. In re J.F.C., 96 S.W.3d at 266. "The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (mem. op.).
In its brief, the Department argues E.L. failed to preserve his factual sufficiency complaint by failing to file a motion for new trial. However, "[i]n a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party's brief." TEX. R. APP. P. 33.1(d); see also In re K.M.H., 181 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (same).
PREDICATE FINDINGS
The trial court found by clear and convincing evidence that E.L.: (1) engaged in conduct or knowingly placed E.E.L. with persons who engaged in conduct which endangered his physical or emotional well-being; (2) constructively abandoned E.E.L. who had been in the Department's conservatorship for not less than six months; (3) failed to comply with the provisions of a court order specifically establishing the actions necessary for E.L. to obtain the return of E.E.L.; and (4) used a controlled substance in a manner that endangered E.E.L.'s health or safety, and (a) failed to complete a court-ordered substance abuse treatment program; or (b) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance. When, as here, the trial court terminates a parent's rights on multiple grounds, we may affirm on any one ground. In re D.J.H., 381 S.W.3d 606, 611-12 (Tex. App.—San Antonio 2012, no pet.).
As noted, the trial court found E.L. engaged in conduct or knowingly placed E.E.L. with persons who engaged in conduct which endangered his physical or emotional well-being. "'As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.'" Id. at 613 (quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied)). A parent's conduct need not be directed at the child to constitute endangerment. D.N. v. Tex. Dep't of Family & Protective Servs., No. 03-15-00658-CV, 2016 WL 1407808, at *2 (Tex. App.—Austin Apr. 8, 2016, no pet.) (mem. op.). For example, domestic violence may constitute endangerment even if not directed at the child. Id.; see also In re G.M.G., 444 S.W.3d 46, 59 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (noting father's domestic violence supports a finding of endangerment to the child). In addition, "while incarceration alone does not justify termination, a parent's repeated criminal acts may constitute sufficient evidence of conduct that endangers the well-being of a child." In re D.J.H., 381 S.W.3d at 613. (internal citation omitted). Finally, "a fact-finder may infer from past conduct endangering the well-being of a child that similar conduct will recur if the child is returned to the parent." Id.
In this case, E.L. admitted he engaged in domestic violence with E.E.L.'s mother. E.L. also admitted to consistently having problems with the law since 1996, including a 2015 charge for assault of a family member. Furthermore, E.L. used racial slurs and called the Department's legal worker vulgar, profane names, further evidencing his violent behavior. The foregoing is sufficient evidence to support the trial court's finding that E.L. engaged in conduct which endangered E.E.L.'s physical or emotional well-being. Because we hold the evidence is sufficient to support termination on this predicate ground, we do not address the trial court's other predicate findings. See TEX. R. APP. P. 47.1.
BEST INTEREST FINDING
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). However, when the court considers factors related to the best interest of the child, "the 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 Supp. 2016).
In determining the best interest of a child, courts apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (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. Id.
The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." Id.
E.E.L. was too young to express a desire; however, he was bonded to his foster parents. E.L. attended only fifteen of thirty-seven possible visits with E.E.L. and the legal worker did not believe E.E.L. was bonded to E.L. In re K.L.P., No. 04-17-00253-CV, 2017 WL 4014613, at *4 (Tex. App.—San Antonio Sept. 13, 2017, no pet.) (mem. op.) (relying on absence of evidence that child was bonded with father to support best interest finding). E.L. had not visited with E.E.L. in over four months before the trial due to his incarceration. See id. (relying on father's absence for large part of child's life to support best interest finding).
E.L. admitted to having engaged in domestic violence with E.E.L.'s mother. See In re T.L.B. Jr., No. 01-16-00806-CV, 2017 WL 1019520, at *11 (Tex. App.—Houston [1st Dist.] Mar. 16, 2017, no pet.) (mem. op.) (noting evidence of domestic violence in the home even if not directed at the child is supportive of a trial court's best-interest finding). In addition, E.L. was incarcerated during the pendency of the case on an assault charge. In re S.R., 452 S.W.3d 351, 370 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (relying on periods of parent's incarceration while proceedings were pending as evidence to support best interest finding). E.L. had not completed his service plan, including the required drug assessment, and had tested positive for marijuana. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting parent's drug use supports a finding that termination is in best interest of the child); In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (noting failure to comply with family service plan supports a finding that termination is in the best interest of the child). Although E.L. argues he could not engage in services while incarcerated, the legal worker testified he failed to engage in services in the five months preceding his incarceration and testified some incarcerated parents are able to engage in services.
E.L. planned to live with his mother after he is released from incarceration; however, his mother's home was determined not to be a suitable placement for E.E.L. See id. (noting parent's inability to provide a stable home supports a finding that termination is in the best interest of the child). The Department plans for E.E.L. to be adopted by his foster parents with whom E.E.L. has lived since shortly after his birth. See In re D.S.O., No. 04-14-00061-CV, 2014 WL 2802931, at *7 (Tex. App.—San Antonio June 18, 2014, no pet.) (mem. op.) (relying on evidence that child had lived with foster parents most of her life and had bonded with foster parents as evidence to support trial court's best interest finding).
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination of E.L.'s parental rights was in E.E.L.'s best interest.
CONCLUSION
The order of the trial court is affirmed.
Sandee Bryan Marion, Chief Justice