Opinion
No. 05-17-00110-CV No. 05-17-00111-CV No. 05-17-00112-CV No. 05-17-00113-CV
06-16-2017
On Appeal from the 302nd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. 13-20771-U , 15-22805-U, 15-22811-U, 15-22812-U
MEMORANDUM OPINION
Before Justices Lang, Stoddart, and Schenck
Opinion by Justice Schenck
Mother appeals the orders terminating her parental rights as to three of her children. She argues the evidence is legally and factually insufficient for the trial court to have found the termination of her parental rights was in the best interest of the children. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2015, the Texas Department of Family and Protective Services (the Department) received a referral of neglectful supervision of a child, E.H., by Mother. The referral alleged that on December 11, 2015, Mother gave birth prematurely to E.H. and tested positive for amphetamines. A caseworker from the Department visited Mother's home where Mother lived with E.H.'s maternal great-grandmother and E.H.'s siblings G.L.H., S.J.H., A.H., and J.H. That same day, Mother submitted to an oral swab, which tested positive for methamphetamines and amphetamines. She then admitted she "might of used a couple of days ago" and that she had taken prescription medications not prescribed to her during her pregnancy. After interviewing numerous relatives and family friends regarding their willingness and ability to care for E.H. and her siblings, the Department determined it was necessary to conduct an emergency removal of E.H.'s four siblings and place them into protective foster care.
At birth, E.H. was admitted to the hospital's neonatal intensive care unit and was not expected to be discharged for at least two weeks.
On December 14, 2015, the Department filed four petitions for protection of children, for conservatorship, and for termination in suit affecting parent-child relationship with respect to five children: G.L.H., S.J.H, A.H., E.H., and J.H. On January 5, 2016, the trial court named the Department temporary managing conservator of the five children, appointed Mother temporary possessory conservator, and ordered Mother to complete the following services: parenting classes, psychological evaluation, counseling, "random drug and alcohol urinalysis/hair strand tests," and comply with the recommendations made by any of the providers of the foregoing services as arranged and paid for by the Department.
At some point during the pendency of these four cases, but before a hearing conducted on October 5, 2016, the Department attempted to conduct a monitored return of the subject children to Mother's custody. The return lasted for approximately three months before the Department removed them again because Mother was not submitting to her drug test requests within the 24-hour timeframe and missed an entire month of drug testing despite repeated requests. On September 27, 2016, Mother filed a motion for return of children, but on October 5, 2016, the trial court denied the motion and ordered the parties to mediate prior to trial set for November 9, 2016.
On October 11, 2016, the guardian and attorney ad litem for the children, Mother, her attorney, the Department caseworker, the Department supervisor, and the attorney for the Department participated in mediation and signed mediated settlement agreements (MSAs) regarding G.L.H., E.H., A.H., and J.H. That same day, Mother signed an affidavit relinquishing her parental rights to E.H. On November 9, 2016, the trial court conducted a bench trial at which the judge took judicial notice of the MSAs. On January 9, 2017, the trial court entered decrees of termination as to G.L.H, E.H., A.H., and J.H. in accordance with the terms of the MSAs. The trial court also entered a final order appointing Mother as a possessory conservator with rights to supervised visitation of S.J.H.
The MSAs were not signed by all the parties. Specifically, the MSA regarding G.L.H. was not signed by her father. Nor was the MSA for A.H. signed by his father. Since J.H.'s father was not known, he did not sign the agreement.
Pursuant to the MSA regarding E.H., she is to be adopted by the "kinship placement."
Mother appealed the final orders in all four cases, but on appeal she challenges only the orders terminating her parental rights as to G.L.H., A.H., and J.H. Her first issue is that the evidence was legally insufficient to support the trial court's best-interest findings. Her second issue argues the evidence was factually insufficient as to those findings.
DISCUSSION
I. Applicable Law and Standards of Review
A court may terminate a parent-child relationship if it finds by clear and convincing evidence (1) one or more statutory grounds for termination and (2) that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(1)-(2) (West 2016). Clear and convincing evidence is 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 2016).
Non-exclusive factors relevant to the best-interest determination include (i) the child's desires, (ii) the child's present and future emotional and physical needs, (iii) the present and future emotional and physical danger to the child, (iv) the parent's parental abilities, (v) the programs available to assist a parent to promote the child's best interest, (vi) the parent's plans for the child, (vii) the stability of the home, (viii) the parent's acts or omissions that may indicate the parent-child relationship is not a proper one, and (ix) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). A best-interest finding need not be supported by evidence of every Holley factor, particularly if there is undisputed evidence that the parental relationship endangered the child's safety. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence of section 161.001(b)(1) termination grounds may also be probative of a child's best interest. See id. at 28.
When the legal sufficiency of the evidence is challenged, a court should 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). To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal-sufficiency review, looking at the evidence in the light most favorable to the judgment means that 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. This does not mean that a court must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. If, after conducting its legal-sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. Id. at 344-45.
When the factual sufficiency of the evidence is challenged, only then is disputed or conflicting evidence under review. Id. at 345. If, in the 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, then the evidence is factually insufficient. Id. We must then further detail why we have concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding. Id.
II. Best-Interest Evidence
The trial court took judicial notice of the MSAs related to each child. Mother does not dispute that she and her attorney signed each agreement. Each agreement addressed the subject child's best interest by including a statement that "[t]he parties agree that the agreement as set forth is in the best interest of [subject child]."
The caseworker assigned to these cases testified the Department was asking that Mother's rights be terminated for failure to comply with the provisions of court orders that specifically established the actions necessary to obtain the return of the children. The caseworker testified Mother was ordered to and failed to participate in drug testing. Additionally, Mother allowed other people who tested positive for drugs to reside with the children. Moreover, the caseworker stated the terms of the MSAs, which included termination of Mother's rights should none of the home studies be approved, were in the best interest of the children.
The caseworker testified that the home study for the maternal great-grandmother was not approved because of concerns that maternal great-grandmother was not physically capable of raising three children. All of maternal great-grandmother's references stated they did not believe she would be a fit caregiver for three young children due to her age, which was 76 years old at the time of trial. According to the caseworker, the son of maternal great-grandmother advised that while she might be physically able to raise the children, she would not be able to handle the stress. Multiple people advised the caseworker that Mother and maternal grandmother had physically threatened maternal great-grandmother in the past. The Department also denied maternal great-grandmother's home study because she was not able to discern when Mother or anyone else was under the influence of drugs.
Maternal great-grandmother testified and admitted that she could not tell when a person was under the influence of drugs and was "floored" when Mother tested positive for methamphetamine. She stated that although she understood Mother was probably using drugs again, she had no concerns about Mother visiting her home when the children were there. She also testified she was physically able to do laundry, cook, and drive. She was "tired of taking care of everyone in town," but insisted that she would take care of the children and "make it the best job [she had] ever done."
The MSAs all provided that in the event maternal great-grandmother was not approved, then a home study would be performed for Mother's sister. According to the caseworker, Mother's sister initially indicated she was willing to participate in a home study but later called to say she no longer wanted to be considered for placement of the children. The MSAs further provided that in the event neither Mother's sister nor maternal great-grandmother was approved for placement, Mother could submit the name of a third person, but as of the date of the trial, Mother had failed to do so.
Mother testified she signed the MSAs freely and voluntarily and understood their ramifications. She testified all the parties to the mediation told her there was no reason the maternal great-grandmother would not be approved to take the children. She stated she had been trying to find a third person for placement, but she had been unable to find anyone thus far.
The guardian ad litem for the children testified she believed the requested relief—which included termination of Mother's rights as to G.L.H., A.H., and J.H.—was in the best interest of all of the children.
III. Application of the Law to the Facts
Mother complains the evidence supporting the best-interesting findings as to G.L.H., A.H., and J.H. are lacking. She argues the best interests of the children were not met by the terms of the MSAs because they failed to provide adequately for the present and future needs of the children. She also contends no evidence was given regarding any desires of any child. She argues that the record does not contain any evidence of any permanency plan or stability for the children pursuant to Holley. She points out that although there was testimony that sibling visits would occur, none of the decrees provided for any of the children to have further contact with each other or any other family members.
Mother also contends the MSAs were not in the best interests of the children once it became apparent that the children would not be placed with a family member. She argues that the record showed that the Department and the guardian ad litem had concerns about maternal great-grandmother's ability to care for the children before the parties participated in mediation. According to Mother, the MSAs should have addressed those concerns in such a way as to give the children the best chance at being placed with family. She also contends that all who participated at the mediation proceedings said they were sure the children would be placed with the maternal great-grandmother, notwithstanding the language in the MSAs.
We reject Mother's arguments regarding the Holley factors because the factors are not exhaustive, nor must all such considerations be proved as a condition precedent to termination. See In re C.H., 89 S.W.3d at 27. The evidence detailed above established the present physical danger to the children, as well as Mother's continued drug use, that would indicate to the factfinder that the parent-child relationship was not a proper one. See Holley, 544 S.W.2d at 371-72. As for Mother's arguments regarding the MSAs, the record shows Mother testified she reviewed all the MSAs, signed them freely and voluntarily, and understood the ramifications of what would happen if the home studies that were agreed to were not approved by the Department. We conclude that a reasonable factfinder could find termination of Mother's parental rights as to the children to be in their best interest and that such findings are supported by legally sufficient evidence. See In re J.O.A., 283 S.W.3d at 344. We also conclude the foregoing evidence is factually sufficient to support the best-interest finding as to each child. See id. at 345. Accordingly, we overrule Mother's first and second issues.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 170110F.P05
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. 13-20771-U.
Opinion delivered by Justice Schenck, Justices Lang and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 16th day of June, 2017.
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. 15-22805-U.
Opinion delivered by Justice Schenck, Justices Lang and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 16th day of June, 2017.
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. 15-22811-U.
Opinion delivered by Justice Schenck, Justices Lang and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 16th day of June, 2017.
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. 15-22812-U.
Opinion delivered by Justice Schenck, Justices Lang and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 16th day of June, 2017.