Opinion
04-21-00444-CV
03-30-2022
IN THE INTEREST OF E.J.R.
From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-01615 Honorable Charles E. Montemayor, Judge Presiding
Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
AFFIRMED
J.A.R. appeals the trial court's order terminating her parental rights to her child, E.J.R. Following a bench trial, the trial court signed an Order of Termination terminating J.A.R.'s parental rights to E.J.R. We affirm.
To protect the privacy of minor children, we use initials to refer to the children and their biological parents. Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2). At the time of trial, E.J.R. was eight years old.
STANDARD OF REVIEW
When reviewing the sufficiency of the evidence, we apply the well-established standards of review. See Tex. Fam. Code §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (legal sufficiency). The trier of fact is the sole judge of the credibility of witnesses and the weight to be given their testimony. J.P.B., 180 S.W.3d at 573. In a bench trial, such as here, "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (citation omitted). We therefore defer to the trial court's judgment regarding credibility determinations. While we must detail the evidence relevant to the issue of parental termination when reversing a finding based upon insufficient evidence, we need not do so when affirming a verdict of termination. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
To terminate parental rights pursuant to Family Code section 161.001, the Department has the burden to prove by clear and convincing evidence: (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 §§ 161.001(b), 161.206(a). In this case, the trial court found evidence of two predicate grounds to terminate J.A.R.'s parental rights, specifically section 161.001(b)(1) subsections (O) and (P). The trial court also found termination of her parental rights was in the child's best interest. In J.A.R.'s sole issue on appeal, she contends the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in E.J.R.'s best interest.
BEST INTEREST
When considering the best interest of the child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. Tex. Fam. Code § 263.307(a). The Department has the burden to rebut these presumptions 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.). "'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 § 101.007; R.S.-T., 522 S.W.3d at 97. To determine whether the Department satisfies its burden, the Texas Legislature has provided several statutory 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 provided a similar list of factors to determine a child's best interest. Tex. Fam. Code § 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, 544 S.W.2d at 371-72.
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.). Evidence that proves a statutory ground for termination is probative on the issue of best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). "A trier of fact may measure a parent's future conduct by [her] past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). This conduct can include drug use, which can destabilize the home and expose children to physical and emotional harm if not resolved. See, e.g., In re K.J.G., 04-19-00102-CV, 2019 WL 3937278, at *8 (Tex. App.-San Antonio Aug. 21, 2019, pet. denied) (mem. op.). In analyzing these factors, the court must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
BACKGROUND
The bench trial commenced on September 24, 2021, and two witnesses testified. Demetrius Knighton, the Department caseworker, stated the case was referred to the Department because of J.A.R.'s drug use and because she had left E.J.R. alone at home. There were allegations of EJ.R. witnessing her mother's drug use and E.J.R. was aware her mother "smoked" "marijuana." Knighton said J.A.R. admitted she had an on-going problem with methamphetamine, and the Department had attempted to work with her before the child came into the Department's care. After J.A.R. was expelled from Drug Court, the Department continued to try to engage her in parenting classes, a drug treatment program known as Elite Counseling, and other counseling. Although the case had been on-going for about one year and Elite had attempted contact with J.A.R., she waited until only a month or two before trial commenced to enroll in her treatment program with Elite. Since engaging with Elite in August 2021, J.A.R. tested positive for drugs and she continued to have an on-going problem with methamphetamine. After Knighton sent J.A.R. for a drug test a few days before trial commenced, J.A.R. told him the test was complete, but it was not. Although J.A.R. tested positive for marijuana in July 2021, she recently tested positive for amphetamines and methamphetamines. J.A.R. also had not engaged in individual counseling, nor returned telephone calls from the counseling service-provider. Knighton said J.A.R. has not completed any of the requirements of her service plan.
Knighton also testified about J.A.R.'s criminal history, which included drug possession (while enrolled in Drug Court), and one other pending case. Both cases are felonies. Knighton believed the frequency and pattern of arrests for possession of a controlled substance affected J.A.R.'s ability to provide stability for her child. Finally, Knighton said J.A.R. did not have a stable place to live, but she appears to have a job.
At the time of trial, E.J.R. had been in more than one foster home, and had recently been placed with new foster parents. E.J.R. referred to her foster mother as her aunt, she was doing "wonderfully," was happy, and was bonded with her foster parents. Knighton testified E.J.R. "cannot be up and down a roller coaster, being positive and negative," and she needs stability in her life and a sober parent. According to Knighton, if J.A.R. continues to use drugs, E.J.R. "can't have this in her life," and "she needs to be a kid and enjoy and have fun." E.J.R. is receiving psychological, dental, and medical help, and taking medication for "mood disorders." When asked how E.J.R. reacts after a visit with her mother, Knighton said E.J.R. acts out at school after the visits. Knighton did not believe J.A.R. has shown a willingness to make changes in her life. Therefore, Knighton believed the foster home was the best placement for her and an appropriate long-term placement.
On cross-examination, Knighton was asked why he requested that J.A.R.'s parental rights be terminated as opposed to allowing her an opportunity to address her problems and he replied:
No, because we - she's - we've gone through Drug Court, which is the fastest program that we have. I am the drug court worker, so we do that to get the parents reunified. We had expulsion for that part.
And ongoing from there, we had another court hearing. The motion back in July, which was stated [sic] she needed to get her stuff taken care of and everything else. And here we are today with more positive tests.
The final witness, J.A.R., testified she enrolled herself in and has completed parenting and drug and alcohol classes, but she has not provided the information to the Department because she is awaiting her certifications. She said she currently has a job and intended to sign a lease on an apartment in October. She admitted she had a drug relapse, but did not admit it to anyone because she was ashamed. She agreed she has been on a "rollercoaster with drug use" during the case. She testified she was "trying to work through [her] issues so [she] can be the best mom for [E.J.R.] It's just taking longer than - I'm not trying to justify it. It's just I have a lot of trauma that I have to work through." She agreed E.J.R. should not have to wait while she got her life straightened out, but she thought the child would be willing to wait "a little longer" because they loved each other and have a strong bond.
When asked about E.J.R. acting out after visits, J.A.R. believed the child was "calling out" to her and was upset she was not going home with her mother. J.A.R. thought E.J.R. was "just screaming out for me to get my act together." She said if the court gave her more time, the time would not be wasted, she would "throw [herself] 150 percent into it," with no more excuses. As for her pending felony charges, she said the first one was for possession of controlled substances for which she would get deferred adjudication, and she was still waiting to hear from the District Attorney about her second charge.
On cross-examination, J.A.R. admitted she was aware of the effect her drug use had on E.J.R.; that while she was sleeping during the day the child was going hungry because she could not wake up her mother; and E.J.R. had witnessed her using drugs on a daily basis. She knew the foster parents and described them as "amazing people" who were taking great care of E.J.R.
In its order, the trial court found J.A.R. (1) failed to comply with the provisions of a court order that established the actions necessary for her to obtain the return of her child and (2) used a controlled substance in a manner that endangered the child's health and safety, failed to complete a court-ordered substance abuse program or, after completing the program, continued to abuse a controlled substance. The court also found termination of her parental rights was in the child's best interest. On appeal, J.A.R. challenges the sufficiency of the evidence only as to the best interest finding.
ANALYSIS
As stated above, a best-interest finding does not require proof of any particular factors and none of the factors we consider are exhaustive. See G.C.D., 2015 WL 1938435, at *5; J.B.-F., 2018 WL 3551208, at *3. "Evidence 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"; J.B.-F., 2018 WL 3551208, at *3; and evidence proving a statutory ground for termination is probative on the issue of best interest. C.H., 89 S.W.3d at 28. "A trier of fact may measure a parent's future conduct by [her] past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." E.D., 419 S.W.3d at 620.
One of the grounds on which the court terminated J.A.R.'s parental rights was her failure to comply with the provisions of a court order that established the actions necessary for her to obtain the return of her child. The evidence shows she failed to comply with requirements of the family plan that sought to assure the child would have a safe and stable environment. Although J.A.R. said she would soon sign a lease for an apartment, she did not currently have a residence of her own. The trial court therefore could have reasonably credited this evidence as supporting its best-interest finding. See In re O.N.H., 401 S.W.3d 681, 687 (Tex. App.-San Antonio 2013, no pet.) (noncompliance with service plan is probative of child's best interest).
Of the Family Code statutory factors, the trier of fact could consider that E.J.R.'s age made her vulnerable and that J.A.R. has a history of substance abuse. See Tex. Fam. Code § 263.307(b); see In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.-Fort Worth 2006, no pet.) (considering parent's substance abuse, failure to provide a stable home, and failure to comply with service plan in holding evidence supported best-interest finding).
Of the Holley factors, nothing in the record indicates E.J.R.'s desires. However, the factfinder may consider whether the child has bonded with her caregivers, is well-cared for by them, and whether the child has spent minimal time with a parent. See In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied). At the time of trial, E.J.R. was eight years old, had been in more than one foster home, and was happy and doing well in her current foster home. Knighton testified the current caregivers were meeting the child's needs, and he anticipated this home to be a long-term placement if J.A.R.'s parental rights were terminated. Additionally, Knighton testified the child acted out in school after visits with her mother.
The second statutory ground on which the court terminated J.A.R.'s parental rights involved her use of controlled substances, which endangered E.J.R.'s health and safety. The evidence of J.A.R.'s on-going drug use was undisputed, but participation in drug counseling was disputed. Knighton testified J.A.R. did not complete her service plan, was expelled from Drug Court, and J.A.R. continued to test positive for controlled substances. J.A.R. testified she was in treatment she sought on her own and would continue drug treatment. We defer to the trial court's determinations of credibility. See J.P.B., 180 S.W.3d at 573. The trial court reasonably could have believed Knighton's testimony that J.A.R. did not or would not complete her drug treatment.
Evidence as to the other Holley factors also support the trial court's best-interest finding. J.A.R. tested positive for controlled substances and failed to complete drug treatment. Illicit drug use is relevant to multiple Holley factors, including a child's emotional and physical needs now and in the future, the emotional and physical danger to the child now and in the future, J.A.R.'s parental abilities, the lack of stability of J.A.R.'s home, and the acts or omissions that may indicate an improper parent-child relationship. See Holley, 544 S.W.2d at 371-72. "Additionally, a parent's illegal drug use exposes [a] child to the possibility that the parent may be impaired or imprisoned." See In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op.) (explaining drug use implicates multiple Holley factors).
A parent's criminal history is also relevant to a best-interest finding. See re A.M.M., 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.-San Antonio May 6, 2020, pet. denied) (mem. op.) (considering criminal history in determining whether termination of parental rights was necessary to protect child in the future and was in child's best interest); In re A. L. T., 04-17-00452-CV, 2017 WL 5162173, at *3 (Tex. App.-San Antonio Nov. 8, 2017, pet. denied) (mem. op.) (parent's criminal history and drug use indicated he had not and could not provide for child's physical and emotional needs or provide her with a safe and stable environment). J.A.R. is facing more than one felony charge.
The trial court could have inferred from J.A.R.'s drug use and failure to complete drug treatment and her services that she lacked parental abilities, including the motivation to seek out and utilize available resources. See In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) ("A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of [her] child that [she] does not have the ability to motivate [herself] to seek out available resources needed now or in the future."); see also Tex. Fam. Code § 263.307(b)(10), (11) (providing courts may consider willingness and ability of child's family to seek out, accept, and complete counseling services and willingness and ability of child's family to effect positive environmental and personal changes within a reasonable period of time).
Evidence of J.A.R.'s instability in housing also supports the best-interest finding. "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." In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). Knighton testified J.A.R. did not have a stable home, but J.A.R. testified she would soon sign an apartment lease and had a job. The trial court reasonably could have determined that any stability J.A.R. might achieve was unlikely to last. Cf. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) ("[E]vidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of . . . irresponsible choices.").
Viewing all of the evidence in the light most favorable to the best-interest finding and applying the appropriate factors, we conclude the trial court could have formed a firm belief or conviction that termination of J.A.R.'s parental rights was in E.J.R.'s best interest. We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court's best-interest finding or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in E.J.R.'s best interest. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
CONCLUSION
We overrule J.A.R.'s sole issue and affirm the trial court's Order of Termination.